94Declaration of protected communication

94 Declaration of protected communication (1) An individual may apply to the ICAC for a declaration that an action taken by the individual that involves an allegation of improper conduct is a protected communication. (2) The ICAC may, by written notice to the applicant, declare the action to be a protected communication, whether or not the action would otherwise be a protected communication.

Independent Commissioner Against Corruption Act 2017 72 (3) In determining whether to declare an action to be a protected communication, the ICAC must take into account the following matters: (a) the seriousness of the improper conduct alleged; (b) whether the applicant believed, and had reasonable grounds for believing, the information alleged was reliable; (c) whether the action was consistent with the processes and practices of a public body; (d) whether the applicant believed, and had reasonable grounds for believing, the entity to which the allegation was made had statutory responsibility for dealing with improper conduct of the kind alleged; (e) whether an alternative process for reporting improper conduct was available and the applicant ought reasonably have used that process instead of taking the action; (f) whether the applicant believed, and had reasonable grounds for believing, the applicant was following any requirements for making a protected communication; (g) the extent to which the applicant believed that taking the action would genuinely assist in preventing, reducing or dealing with improper conduct; (h) whether taking the action was a reasonable preparatory step to, or reasonable part of, taking another action that is protected action; (i) the actual and potential adverse impact on the public interest or the interests of any person caused by the action; (j) whether taking the action was reasonable in all the circumstances. (4) An applicant or the ICAC may give a copy of a notice under subsection (2) to any person or body. (5) In addition, the ICAC may direct a public body to ensure that the content of a notice under subsection (2) is brought to the attention of: (a) any persons specified by the ICAC; and

Independent Commissioner Against Corruption Act 2017 73 (b) any other person who may be in a position to engage in retaliation for the action to which the notice relates or to prevent or deal with retaliation. (6) The rules of natural justice (including any duty of procedural fairness) do not apply to the ICAC in determining whether to declare an action to be a protected communication to the extent complying with those rules would be likely to: (a) reveal the identity of a protected person or otherwise put a protected person at increased risk of retaliation; or (b) involve a risk that the individual who took the action would suffer retaliation before the declaration is made. (7) The ICAC may, by written notice to an individual, vary or revoke a notice under subsection (2) if, as a result of further information, the ICAC considers the action taken or part of the action taken ought not be a protected communication. (8) Variation or revocation of the declaration does not affect the status of the protected communication if it would be a protected communication even if the declaration had not been made.