The question of what is and is not protected disclosure from ‘whistleblowers’ has long been the subject of debate. A recent decision by the Federal Court of Australia in Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 (“Mount v Dover”) addressed this issue.

The CEO of Dover Castle Metals Pty Ltd (‘Dover’) identified various safety concerns regarding the mine of Dover. He requested a report on a safety concern from one of the Directors, and he repeated this request on numerous occasions. Mr Mount directed that work should be limited to minimise injury risk, but this direction was not followed. Mr Mount sought the assistance of Dover’s Directors to intervene and stop work he had not authorised. Mr Mount’s opinions were contained in 2 ‘whistleblower’ reports emailed to the other 2 Directors (as well as some other emails which allegedly contained disclosure). Mr Mount stated that if the workers continued to ignore his directions, he would be legally obligated to report the matter due to the risks. Dover summarily terminated his contract days later. Mr Mount sued Dover and the Directors, alleging wrongful dismissal and breach of contract.

What disclosure qualifies as protected disclosure?

Section 1317AA outlines disclosure that is protected under the Act. Disclosure concerning misconduct or an improper state of affairs or circumstances is protected disclosure, however, this does not mean that the misconduct needs to be unlawful. The Court found in this case that only the first and second ‘whistleblower reports’ contained information that could qualify as protected disclosure. The Court said that “requests for reports or information do not constitute disclosures of information”, nor do requests for assistance constitute disclosure. Personal work-related grievances are also not protected disclosure. Document’s that are marked “without prejudice” or “confidential” do not automatically attract the protection of the Act.

Dover submitted that as the reported disclosures were made to both an eligible and ineligible recipient, the disclosure did not qualify for protection. The Court did not accept this, stating disclosure is not deprived of being protected because the disclosure is also made to an ineligible recipient and that it qualified for protection to the extent it was sent to the eligible recipient, but not to the extent it was sent to the ineligible recipient. Disclosure to an ineligible recipient may allow termination for breach of contract.

Disclosure in relation to contraventions of the Corporations Act or the ASIC Act, conduct which is an offence against another commonwealth law punishable by 12 months or more imprisonment and conduct that is a danger to the public will also usually be protected disclosure for the purposes of the Corporations Act. The Court said in relation to allegations by Mr Mount of insubordination, that this did not amount to disclosure protected under the Act, as it “concerned a work-related grievance within the meaning of ss1317AADA”.

Reasonable grounds and factual basis for suspicion

At [136] the Court said “before any disclosure qualifies for protection, the discloser must have reasonable grounds for forming the relevant suspicion”. A whistleblower must have reasonable grounds to suspect that the information that they are disclosing concerns misconduct or an improper state of affairs or circumstances and there must be a factual basis for the suspicion. Honestly suspecting misconduct does not necessarily result in a factual basis for that suspicion. In relation to safety risks, the Court found that Mr Mount did have reasonable suspicions that there was a safety risk at the mine and that no attention was paid to that risk, stating that Dover’s “conduct in this respect was irregular and therefore improper”.

Remedies available to whistleblowers

Section 1317AAE of the Corporations Act provides a person to whom a whistleblower has made a qualifying disclosure will contravene the section if they disclose the identity of the whistleblower or any other information which may lead to the identification of the whistleblower. Importantly, Section 1317AAE(4) provides that disclosing information that is not the identity of the whistleblower that is “reasonably necessary for the purposes of investigating a matter” is not a contravention where the person disclosing the information provided by the whistleblower “takes all reasonable steps to reduce the risk” that the whistleblower will be identified. The Court in Mount v Dover stated “it is important to keep in mind that s 1317AAE does not prohibit the disclosure of the contents of the information that qualifies for protection under Pt 9.4AAA. It prohibits the disclosure of the identity of the whistleblower or information that would likely lead to his identification”.

Section 1317AC of the Corporations Act protects whistleblowers from being victimised or being threatened to be victimised as a result of making a disclosure that qualifies for protection under the legislation. Section 1317AE sets out the remedies that can be made in relation to detriment caused to a whistleblower as a result of their disclosure.

Lessons for employers

• Employers need to be aware of what information constitutes qualifying disclosure from a whistleblower under the Corporations Act, as this will affect how and whether employers should share the disclosure with another party.
• Whistleblowing disclosure requires a factual basis for the whistleblower’s suspicion, not just an honest suspicion.
• Any information the company is made aware of, particularly that which concerns safety risks, needs to be investigated and addressed, as soon as possible prior to the information being disclosed by a whistleblower.
• Employers can not disclose the identity of a whistleblower or any information that may lead to the identification of the whistleblower nor take detrimental action towards the whistleblower.
• Employers can share the disclosure itself if this is reasonably necessary to investigate the matter and provided that all steps are taken to protect the whistleblowers identity.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.