Your Rights as a Whistleblower: Key Lessons from ASIC v TerraCom Ltd (No 3) [2025] FCA 1017
If you have raised concerns about misconduct within your organisation—or are considering doing so—you may be wondering what legal protections exist for you as a whistleblower. The recent Federal Court decision in Australian Securities and Investments Commission v TerraCom Ltd (No 3) [2025] FCA 1017 offers important reassurance. This landmark case demonstrates that the law takes the victimisation of whistleblowers extremely seriously, and that companies which cause detriment to employees who speak up will face significant consequences.
The Facts: What Happened to Mr Williams?
Mr Justin Williams commenced employment with TerraCom Limited as General Manager, Commercial in July 2019. Shortly after starting, he identified a practice he considered troubling: coal quality results recorded in shipping analysis reports were being amended without proper justification by TerraCom's independent laboratory, ALS Limited, to report results more favourable to TerraCom. On 13 August 2019, Mr Williams raised his concerns with TerraCom's CEO and CFO, and the following day he met with an adviser authorised by TerraCom's board, providing documents supporting his allegations. His employment was terminated on 13 August 2019.
TerraCom engaged PricewaterhouseCoopers to investigate Mr Williams' allegations. The resulting PwC Report identified inconsistencies consistent with the pattern Mr Williams had raised, did not exclude any involvement by TerraCom or its employees, and did not reject all of the allegations or find them "unfounded."
Despite this, TerraCom published three public announcements between February and April 2020—an ASX announcement, an "Open Letter to TerraCom Shareholders" in national newspapers, and a further ASX announcement—each of which characterised Mr Williams' allegations as false or unfounded. These announcements represented Mr Williams as someone who had been made redundant (when he believed he had been terminated for whistleblowing), as someone willing to make unfounded accusations for personal gain, and disclosed a confidential and privileged mediation figure of $5,000,000. Notably, the ASX itself had refused to publish one proposed announcement on the basis that it contained "emotive, intemperate or defamatory language."
The Legal Framework: How the Law Protects You
The whistleblower provisions of the Corporations Act 2001 (Cth) were strengthened in 2019 specifically because Parliament recognised that corporate wrongdoing "only comes to light because of individuals who are prepared to disclose it, sometimes at great personal and financial risk." The Revised Explanatory Memorandum acknowledged that while protections remained inadequate, "whistleblowers will continue to be discouraged from disclosing information about wrongdoing."
Under section 1317AC(1) of the Act, it is unlawful for a person or company to engage in conduct that causes detriment to another person where they believe or suspect that person has made, or may make, a qualifying disclosure—and that belief or suspicion is part of the reason for the conduct. Crucially, the law does not require proof that the whistleblower actually made a formal disclosure before the detrimental conduct occurred. It is sufficient that the company believed or suspected that a disclosure had been made, or might be made.
The Outcome: A $7.5 Million Penalty
TerraCom admitted that it contravened section 1317AC(1) by publishing the three announcements, and that the tone and content of those announcements caused Mr Williams detriment in the form of hurt, humiliation, distress, embarrassment, and damage to his reputation. TerraCom also admitted that its belief or suspicion that Mr Williams had made a qualifying disclosure was part of the reason for publishing the announcements.
Justice Jackman of the Federal Court ordered TerraCom to pay a pecuniary penalty of $7,500,000, payable in two instalments, together with $1,000,000 in costs. The maximum penalty available was approximately $24.49 million—being 10 per cent of TerraCom's annual turnover—meaning the penalty imposed represented approximately 30 per cent of the statutory maximum.
In reaching this figure, Justice Jackman noted that the contravening conduct was objectively serious, deliberate, spanned two months across three separate announcements, and arose out of the conduct of senior management including the CEO and CFO.
What This Means for You
If you are an employee who has raised, or is considering raising, concerns about potential misconduct within your organisation, the TerraCom decision affirms several important principles. First, the law now extends broad protection: you do not need to have made a formal disclosure before your employer's detrimental conduct occurs; it is enough that your employer believes or suspects you have, or may, blow the whistle. Second, detriment is not limited to dismissal or demotion—public statements that cause hurt, humiliation, embarrassment, or reputational damage are also captured. Third, ASIC is actively enforcing these provisions, and the courts are prepared to impose penalties that carry real "sting"—not merely a cost of doing business.
It is also worth noting that public companies are now required to maintain a whistleblower policy, and that TerraCom itself has since revised its policy and undertaken formal training following these proceedings. Your employer's whistleblower policy should set out the persons to whom you can make a protected disclosure, including external bodies such as ASIC and APRA.
If you believe you have been subjected to adverse treatment because you have raised concerns about potential wrongdoing, you should seek independent legal advice promptly. The TerraCom decision makes clear that the courts and regulators stand behind those who are prepared to speak up.
This article is for general information purposes only and does not constitute legal advice. You should obtain independent legal advice relevant to your particular circumstances.