At least some of the documents relating to the union “slush fund” established by the Prime Minister when working for law firm Slater & Gordon 20 years ago could be recovered, as they may still exist in the archives of the Department of Commerce (WA).

Slater & Gordon CEO Andrew Grech told the Age newspaper this week that a file relating to the activities of Julia Gillard in establishing the Australian Workers Union Workplace Reform Association in 1992 was unable to be located

“We have not been able to identify any such documents following extensive searches of our archival records,' Grech told the newspaper.

“If there are such documents, we don't have them. They could have been misplaced, or lost. I simply don't know.”

In explaining her role in the establishment of the association by her then boyfriend, union official Bruce Wilson, which he then allegedly used to defraud hundreds of thousands of dollars, the Prime Minister has said  “"I provided advice in relation to its establishment and that was it."

The fraud included $100,000 towards the purchase of a unit at an auction Ms Gillard attended with Wilson. Slater & Gordon provided $150,000 loan to assist the purchase on behalf of Ralph Blewett, another former AWU official who established the AWU Workplace Reform Association with Bruce Wilson. Julia Gillard witnessed the power of attorney.

It has been reported that the WA Corporate Affairs Commission wrote to Ms Gillard querying the registration in 1992 and asking if it should instead be registered under the Industrial Relations Act, which has much tougher rules.

If she wrote back to confirm the association was genuinely dedicated to workplace safety, not a “slush fund” as she admits it really was, that would go significantly further than just “providing advice”

The Department of Commerce WA, as it is now known, has confirmed that all records relating to Associations since 1987 have been retained as physical files and also scanned to microfiche.

“[The] Department has only destroyed 16 out of the 710 records boxes that are currently held offsite and relate to Associations. These boxes relate to files from 1971 – 1987.” a spokesman said.

“ … most of these older Associations boxes [post-1987] have been earmarked for review in 2013 which means that most of the rest of these 710 boxes will be manually assessed prior to a Destruction report being created and forwarded to the relevant Director for authorisation of final disposal”

The Department has yet to confirm whether the microfiche copies are able to be inspected or require a formal FOI application.

Law firms in Victoria are only expected to retain client files for seven years, as outlined by the Law Institute of Victoria’s Professional Conduct and Practice Rules.

However it is an offence under Victoria’s Crimes (Document Destruction) Act and the Evidence (Document Unavailability) Act (Vic) to destroy documentation in relation to a matter that could become the subject of litigation. 

As the firm became aware of the allegedly fraudulent activity of the AWU Workplace Reform Association in 1994, at the same time allegedly as Ms Gillard, it should have had some idea this may become a matter for the courts.

However the relevant Acts were only introduced in Victoria in 2006, following a high profile case in the High Court of Australia relating to the activities of British American Tobacco Australia (BATA) in destroying evidence before trial.

They introduced a requirement for “the individual or corporation who loses documents to demonstrate that the loss was not untoward.”

According to an online advice written by Mary Nemeth, Partner, Rigby Cooke Lawyers. “It seems that the only positive way in which a body corporate can protect itself from contravening the Document Destruction Act is by having a document retention policy which specifically deals with categories of documents created by the organisation which may become discoverable in proceedings issued in the future. It is clear that an organisation that does not have a document retention policy may fall victim to an inability in the future to explain what may have otherwise been ‘innocent’ document destruction.  Similarly, a document retention policy alone will not be enough. It will be necessary to ensure that procedures are put in place by the body corporate to implement and adhere to its document retention policy.

“Similarly, a document retention policy alone will not be enough. It will be necessary to ensure that procedures are put in place by the body corporate to implement and adhere to its document retention policy

Allison Stanfield, CEO of e.law Asia Pacific and author of two books on litigation examining the collection, management and presentation of digital evidence, said “If the files were destroyed in a routine manner, then Slater & Gordon should be able to show when the files were destroyed, why they were destroyed and how.  It does seem odd that the file has simply disappeared.”

Backscanning of physical records is not a common practice in the Australian legal industry and the files would probably have been held at either on on-site or off-site facility for paper storage.