Australia: Document Retention And Destruction

Last Updated: 29 October 2006
Article by Raechelle Binny

On 1 September 2006, a package of legislation to address the legal and policy implications arising from the Victorian Court of Appeal Decision in McCabe1 came into force in Victoria. The new legislation will have widespread implications for how litigation is conducted in Victoria. It will also impact upon the way organisations around the country store their documents (paper and electronic).

Crimes (Document Destruction) Act 2006

The Crimes Document Destruction Act 2006 inserts a new criminal offence of destruction of evidence into the Victorian Crimes Act.

Section 254 of the Crimes Act now provides:

A person who knows that a document or thing is or is reasonably likely to be required in evidence in a legal proceeding and either:

    • destroys or conceals the document or thing, or
    • expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it,

with the intention of preventing the document or thing from being used in evidence in a legal proceeding is guilty of an indictable offence.

The person who destroys the document does not necessarily have to be the person with the intention of preventing it being used in a legal proceeding.

For example, if person A knows that a document is reasonably likely to be required in evidence in a legal proceeding and person A authorises person B to destroy the document, then, (if person A has the intention of preventing the document from being used in a legal proceeding,) person A is guilty of the offence of destruction of evidence.

The penalty for this new offence is up to five years imprisonment or a fine of $64,458.

The new criminal offence applies to documents which are reasonably likely to be required in all kinds of legal proceedings including:

  • civil court proceedings
  • criminal court proceedings
  • arbitration proceedings
  • commissions of inquiry, and
  • proceedings before any person or body which has (by law or agreement of the parties) authority to hear, receive and examine evidence.

What Is ‘Reasonably Likely’?

One of the most uncertain elements of the new crime is the test of ‘reasonably likely’. Clearly, if proceedings have been commenced, a document which addresses the subject matter of the proceeding could be considered reasonably likely to be required in evidence in those proceedings.

But what if proceedings have not been commenced? Is it ‘reasonably likely’ that a document will be required in evidence if there is a history of litigation, like tobacco litigation? What if there is not a history of litigation but there have been customer complaints? Or an employee has resigned and alleged that they have been harassed in the workplace? Or what if an organisation makes thousands of products and by their very nature, one or two of them are likely to be defective and cause injury?

It is unclear what ‘reasonably likely’ means in the context of this new crime. In the past courts have said that the meaning of the phrase ‘reasonably likely’ will vary depending on its context and there are competing judicial views on the meaning of the phrase.

In Department of Agriculture v Binnie, Justice Marks said that reasonably likely does not require establishment of a greater than 50 per cent chance,2 however, in ACCC v Safeway, Justice Goldberg indicated that a 50 per cent chance would be required to satisfy a test of reasonably likely.3

Corporate Responsibility

Corporations can also be guilty of the new crime. Principles similar to those in the Commonwealth Criminal Code Act are used to make corporations liable.

The maximum penalty for a corporation guilty of the crime is $322,290. Conduct and knowledge of employees, agents and officers is attributed to corporations for the purposes of the crime.

Intentions of boards of directors and officers are also attributed to corporations. Intentions of employees or agents of corporations are attributed to corporations if there is a corporate culture that directed, encouraged, tolerated or led to the formation of an intention of preventing a document from being used in evidence in a legal proceeding.

‘Corporate culture’ is defined in the Crimes Act as an attitude, policy, rule, course of conduct or practice existing within a corporation. The second reading speech states that the concept of corporate culture is designed to cover situations where, despite the existence of formal document retention policies, noncompliance is expected. Factors relevant to whether a corporate culture exists are:

  • whether authority to commit the offence of destruction of evidence has been given by an officer of a company, and
  • whether any employee believes on reasonable grounds, or entertains a reasonable expectation, that an officer of the company would authorise or permit the commission of the offence.

Evidence (Document Unavailability) Act 2006

The Evidence (Document Unavailability) Act inserts a new Division 9 into the Victorian Evidence Act which provides judges with broad discretionary powers to deal with the unavailability of documents in civil proceedings. Division 9 applies, whether the cause of the unavailability of documents occurs prior to or after commencement of proceedings.

Section 89B of the Evidence Act now provides:

If it appears a document is unavailable and the unavailability of the document is likely to cause unfairness to a party in a proceeding then the court may make any ruling or order that the court considers necessary to ensure fairness to all parties in the proceeding.

A document is unavailable if the document is or has been in the possession, custody or power of a party and the document has been:

  • destroyed
  • disposed of
  • concealed
  • rendered undecipherable, or
  • rendered incapable of identification.

The kinds of ruling that a court may make pursuant to section 89B include that:

  • an adverse inference be drawn from the unavailability of the document
  • a fact in issue between the parties be presumed to be true in the absence of evidence to the contrary
  • certain evidence not be adduced
  • all or part of a defence or statement of claim be struck out, or
  • the evidential burden of proof be reversed in relation to a fact in issue.

Any one of these orders could change the entire outcome of a case.

Before making an order under section 89B the court must have regard to:

  • the circumstances in which the document became unavailable
  • the impact of the unavailability of the document on the proceeding, including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence, and
  • any other matter that the court considers relevant.

Practical Implications Arising From The New Legislation

Corporations and individuals may be impacted by the new legislation in many different respects.

The damage to reputation which may result from a conviction under the new crime of destruction of evidence or a judgment giving reasons for an order under Division 9 of the Evidence Act could be extreme and longlasting.

Files that are not intentionally destroyed or rendered undecipherable could contravene the civil legislation. If files are ‘somewhere’ in a warehouse or archiving facility, but cannot be located or identified in the mass of files, they may be ‘unavailable’ for the purposes of the civil legislation.

Finally, while there are criminal provisions relating to destruction of evidence in other jurisdictions,4 the new civil legislation is unique to Victoria. There may be similar legislative reforms in other states in the future, but in the meantime the existence of these provisions in Victoria could give rise to plaintiffs issuing proceedings in Victoria so as to gain a strategic advantage from the new provisions.

The pitfalls of this new legislation can be avoided by being prepared:

  • formalise your organisation’s document management policy
  • be careful about document destruction
  • be vigilant about document retention, and
  • regularly review your organisation’s document management practices—making sure that policies and staff training are current.


1. British American Tobacco Services Ltd v Cowell (2002) 7 VR 524.

2. (1989) VR 836 at 841.

3. (1988) 153 ALR 393 at 425.

4. Section 39 Crimes Act 1914 (Cth); section 317 Crimes Act 1900 (NSW); section 129 Criminal Code Act 1899 (Qld); section 243, Criminal Consolidation Act 1935 (SA); and section 132 Criminal Code Act Compilation Act 1913 (WA).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.