What is a protected communication (formerly whistleblower protections)?

A protected communication is a report to the Office of the ICAC that the complainant believes on reasonable grounds would tend to show that improper conduct has occurred, is occurring, or is at risk of occurring or a communication that would assist the Commissioner and his office to perform their functions.

This information is a protected communication whether or not it is freely reported, reported as a result of mandatory reporting requirements, or a report that is made to the Office of the ICAC or another reporting body, including:

  • Ombudsman
  • Auditor-General
  • Health and Community services Complaints Commissioner
  • Children’s Commissioner
  • Environment Protection Authority
  • ICAC Inspector
  • Commissioner of Police
  • Speaker
  • Deputy Speaker
  • Chief Justice or next senior Supreme Court Judge
  • Chief Judge or next senior Local Court Judge
  • Electoral Commissioner
  • the entity with responsibility for the management of a public body or a Nominated Recipient for that public body.

It does not matter how this protected communication is made, including whether or not:

  • it is made orally or in writing;
  • it is made anonymously; and/or
  • the individual making it asserts that it is a protected communication
  • individuals may also apply to the Office of the ICAC by written notice for their action to be determined a protected communication.

Persons who make a protected communication are taking a protected action, and a person incurs no civil or criminal liability, and is not subject to disciplinary action (or other adverse administrative action) for doing so. A protected action remains privileged, even in an action for defamation.

However, it is an offence to provide information or documentation that is known to be misleading. More information regarding this can be found here.

The following whistleblower protection principles apply under the ICAC Act:

  • public bodies have the primary responsibility for providing protected persons with protection and support;
  • the Office of the ICAC’s role is to provide guidance to public bodies about fulfilling this responsibility and to take action if a public body fails to meet its responsibility;
  • wherever possible, the identity of a protected person should be kept confidential because anonymity is the best protection from retaliation; and
  • public bodies must be model litigants in proceedings, including disciplinary proceedings.

In addition, protections remain in place for all protected communications made to the former Office of the Commissioner for Public Interest Disclosures.

It is an offence to engage in retaliation against a person who has taken a protected action where the maximum penalty is imprisonment for two years.

If an employee of a public body engages in retaliation, both the public body and the employee are vicariously liable - unless the public body can prove that it had taken all reasonable steps to prevent or minimise retaliation.

The ICAC has issued directions and guidelines for public bodies and public officers in respect of dealing with protected communications.

The ICAC has also issued guidelines for public bodies and public officers in respect of frameworks and practices for minimising risks of retaliation.

Many public bodies already have whistleblower protection and retaliation mitigation policies in place.