5. Support and protection for making a PID

5.1 Protections for making a PID

Under Part 6 of the PID Act, you will receive the following legal protections for making a PID (public interest disclosure):

• protection from detrimental action taken or proposed to be taken against you or another person in reprisal for making a PID, including:
  • protection from being fired, disciplined or bullied for making a public interest disclosure
  • (where possible) the opportunity to request a transfer of employment to avoid potential reprisals
• protection from civil or criminal liability or an action of defamation for making a PID, and
• protection from committing an offence or for breaching any confidentiality obligations you might have with respect to the information you have provided within your PID.

You must make your PID in accordance with the requirements of the PID Act (i.e. to a receiving entity), to be able to receive the above protections.

5.2 Confidentiality protections and requirements

The PID Act imposes a number of confidentiality requirements in relation to the receipt and handling of disclosures in an attempt to minimise the risks of reprisal for making a PID.

These confidentiality requirements, which are found under Part 7 of the PID Act, apply to disclosures that are made directly to IBAC, the VI, or the IOC and those disclosures which are required to be notified to IBAC, the VI, or the IOC for assessment under the PID Act (i.e. disclosures that are assessable as a PID).

Breaching these confidentiality restrictions, without lawful excuse, is an offence. The confidentiality restrictions and their exceptions are set out in sections 52, 53 and 54 of the PID Act.

The confidentiality protections do not apply to an external disclosure. The two main confidentiality restrictions are:

[i] The content of a public interest disclosure must be kept confidential

The PID Act prohibits the disclosure of the content, or information about the content, of any disclosure that is assessable as a PID.

This confidentiality restriction applies to a person or body that receives a PID, or that is provided with information about a PID by an investigating entity who is assessing or investigating the disclosure.

This restriction does not apply to the discloser.

[ii]The identity of the person making a public interest disclosure must be kept confidential

The PID Act prohibits the disclosure of information that would be likely to lead to the identification of a person who has made a disclosure that is assessable as a PID.

This restriction applies to any person or body, other than the discloser.

5.3 Exceptions to the confidentiality requirements

The above confidentiality restrictions do not apply where:

• a person or body discloses the confidential information for the purposes of exercising its functions under the PID Act
• the confidential information is disclosed by an investigating entity for the purpose of the exercise of functions under the Act that authorises that investigating entity to investigate the public interest disclosure
• IBAC, the VI or the IOC determines that the disclosure is not a public interest complaint
• the disclosure of confidential information is made by an investigating entity to Victoria Police where relevant to a Victoria Police investigation of criminal conduct
• the disclosure of confidential information is for the purpose of a proceeding for an offence or a disciplinary process under a relevant Act
• the disclosure of confidential information is necessary for the discloser to obtain legal advice or representation, interpretive services, the advice of a parent or guardian (for disclosers under 18 years), the advice of an independent person (for disclosers who are illiterate or have mental or physical impairments)
• the disclosure of confidential information is for the purpose of assisting the discloser to seek advice or support from a registered health practitioner or trade union or employee assistance program
• the disclosure of the confidential information is to WorkCover for a workers compensation claim or for an application to the Fair Work Commission;
• the content, or information about the content, of a public interest disclosure is disclosed in accordance with a direction or authorisation from the investigating entity that is investigating the public interest disclosure after it has been determined to be a public interest complaint
• the content, or information about the content of a public interest disclosure is disclosed for the purpose of taking lawful action (including a disciplinary process) in relation to the conduct that is subject of the disclosure, and
• where the discloser gives prior written consent to disclose information that would be likely to lead to their identification as the person who made the public interest disclosure.

5.4 Offences under the PID Act

The PID Act contains a number of civil and criminal penalties to further protect the confidentiality of disclosures, protect persons from detrimental action in reprisal for a PID and prevent the making of false disclosures.

Offences under the PID Act include:

Detrimental action

It is an offence for a person to take or threaten action in reprisal when:

• another person has made or intends to make a PID
• the person believes another person has made or intends to make a PID
• another person has cooperated or intends to cooperate with the investigation of a PID
• the person believes another person has cooperated or intends to cooperate with the investigation of a PID.

Criminal penalty: 240 penalty units or 2 years imprisonment or both.

Civil penalty: Order of court for offender to pay appropriate level of damages to compensate for injury, loss or damage.

Disclosure of the content of a PID

It is an offence for a person or body to disclose, without lawful excuse, the content of a disclosure that has been assessed as a PID.

Criminal penalty: 120 penalty units or 12 months imprisonment or both (person); 600 penalty units (body corporate).

Disclosure of the identity of a person making a PID

It is an offence for a person or body to disclose, without lawful excuse, the content of a disclosure that has been assessed as a PID.

Criminal penalty: 120 penalty units or 12 months imprisonment or both (person); 600 penalty units (body corporate).

Making a false disclosure or providing false further information

It is an offence for a person to provide information intending it be acted on as a PID, or further information that relates to a PID, knowing it to be false or misleading.

Criminal penalty: 120 penalty units or 12 months imprisonment or both.

Falsely claiming a disclosure is a PID

It is an offence for a person to claim that a matter is the subject of a PID or the subject of a disclosure determined to be a public interest complaint (PIC), knowing that claim to be false.

Criminal penalty: 120 penalty units or 12 months imprisonment or both.