79EConditions for making preservation direction

1. The conditions for making a preservation direction are that—

2. the applicant (or another enforcement officer who may apply for a search warrant to obtain the documents that the applicant seeks to be preserved or produced under the proposed direction)—
   1. is about to apply for a production order in respect of the documents that the applicant seeks to be preserved; or
   2. has applied for a production order in respect of those documents and an issuing officer has not yet granted or refused the application for the order; and
3. there are reasonable grounds to suspect that an offence has been, is being, or will be committed; and
4. that offence is an offence in respect of which this Act or any enactment specified in column 2 of Schedule 2 authorises an enforcement officer to apply for a search warrant; and
5. there are reasonable grounds to believe that the documents (including any record of pathway information that the applicant seeks to be produced) under the proposed direction—
   1. are evidential material in respect of the offence; and
   2. are particularly vulnerable to loss or modification; and
   3. are in the possession or under the control of the person against whom the direction is sought; and
6. if the applicant seeks to have any record of pathway information produced under the proposed direction,—
   1. the applicant’s purpose in seeking to have the record produced is to facilitate tracing of all telecommunications service providers involved in transmitting the related telecommunication; and
   2. the applicant seeks to have only as much of the record produced as is necessary for that purpose.

Examples

For the purposes of paragraph (d)(ii), examples of circumstances in which there may be reasonable grounds to believe that the documents are particularly vulnerable to loss or modification include the following:

Example 1

There are reasonable grounds to believe that, before an application for a production order in respect of the documents is able to be determined, the documents will be—

• deleted, erased, or otherwise disposed of; or

• modified.

Example 2

There are reasonable grounds to believe that the documents are being stored insecurely.

Example 3

In the case of computer data, there are reasonable grounds to believe that the data would ordinarily be deleted or erased when the medium used to store the data is used to store other data.