A protected communication is a report to the Office of the ICAC that the person reporting it believes on reasonable grounds would tend to show that improper conduct has occurred, is occurring, or is at risk of occurring or would assist the ICAC and his Office to perform their functions.
This information is a protected communication whether 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:
- Health and Community Complaints Commissioner
- Children’s Commissioner
- Environmental Protection Authority
- ICAC Inspector
- Commissioner of Police
- Deputy Speaker
- Chief Justice or next senior Supreme Court Judge
- Chief Judge or next senior Local Court Judge
- Electoral Commissioner.
It does not matter how this protected communication is made, including whether or not:
- it is made orally or in writing; and
- it is made anonymously; and
- the individual making it assets that it is a protected communication.
Individuals may also apply to the Office of the ICAC by written notice for their action to be considered a protected communication.
Persons who make a protected communication are taking a protected action, and a person incurs no civil or criminal liability and does not become 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 are required in the administration of 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 as to how public bodies can fulfil this responsibility and to take action if it is considered that this responsibility is not being fulfilled;
- wherever possible, the identity of a protected person should be kept confidential as anonymity is the best protection from retaliation; and
- that public bodies are to act as model litigants in proceedings, including disciplinary proceedings.
In addition, protections remain in place for all those 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 in preventing or decreasing retaliation.
Under the ICAC Act, the ICAC must issue directions and guidelines for public bodies and public officers for dealing with protected communications within six months of the ICAC Act commencing (by end May 2019).
The ICAC must also issue guidelines for public bodies and public officers concerning frameworks and practices for minimising risks of retaliation within 12 months of the Act commencing (end October 2019).
It is worthwhile noting that that, due to the existence of the Office of the Commissioner for Public Interest Disclosures which was replaced by the Office of the ICAC, many public bodies have existing policies in place surrounding whistleblower protections and minimising retaliation.