New Whistleblower Act With Significant Shortcomings
The new Austrian whistleblower protection bill leaves much to be desired. A recent press briefing held by Transparency International, Forum Informationsfreiheit and epicenter.works offered context and explained the bill’s considerable shortcomings and omissions. On 1st February the bill was debated at the plenary session of the lower house of parliament.
• New draft bill on whistleblower protection barely exceeds EU minimum requirements
• Insufficient provisions for handling of anonymous reports
• Administrative fines for false reports could have a deterring effect on potential whistleblowers
• Amnesty International and epicenter.works demand a more comprehensive stance on protection and inclusion in national law
The draft bill implementing the EU whistleblower directive (HSchG), which was debated in the lower house of parliament on Wednesday, 1st February, is inadequate to afford comprehensive protection to whistleblowers, according to a joint statement issued the day before the debate by Amnesty International and epicenter.works.
“Unfortunately, the federal government has missed a valuable opportunity to stop serious illicit activities in companies and the public sector. Instead of protecting whistleblowers from reprisals, the law leaves these courageous individuals no alternative but to contact the media or the anti-corruption prosecutor (WKStA). In the best case, a ‘dead law’ has been created. In the worst case, there is the threat of deterring fines for false reports,” says Thomas Lohninger, managing director of epicenter.works.
“It is in the interests of everyone in Austria that misconduct, such as corruption, is exposed. Whistleblowers make a valuable contribution and it must not be to their disadvantage. If the government really cares about the fight against corruption, the draft bill must be thoroughly overhauled,” says Annemarie Schlack, managing director of Amnesty International Austria.
Key Criticisms of the Draft Bill for the Protection of Whistleblowers
• The draft bill does not protect reports on human rights violations, discrimination, crimes outside the scope of anti-corruption law (for instance sexual harassment, embezzlement, etc.), mismanagement or misconduct in the realm of national security, breaches of worker protections, and many others.
• This limitation of whistleblower protection to a few select legal areas prevents the effective exposure of serious illicit activities and violations of the law. It is an obstacle for many potential whistleblowers, because it makes it very difficult for them to ascertain whether a report is subject to protection by the new law or not. In addition the draft bill fails to use the available option of establishing legal advice and counselling services that would help mitigate the problem.
• The draft bill does not provide clear guidance on whether and to what extent anonymous reports must be followed up. The law lacks definite provisions on how such reports should be treated in practice. This risks that many illicit activities will not be revealed at all, and even when they are reported anonymously, a company could simply ignore them.
• Whistleblowers can be fined for false information. The draft specifies that whistleblowers making a report must assume that it is true and concerns a legal area that is covered by the new law. Otherwise they are not protected. If a false report is made knowingly, the whistleblower faces administrative fines of up to EUR 20,000, and up to EUR 40,000 in repeat cases. The magnitude of these fines is disproportionate and can deter individuals from making a report when there is uncertainty involved.
Austria missed the deadline for the implementation of the EU whistleblower directive (17th December 2021) and the European Commission threatened twice to initiate treaty violation proceedings before the European Court of Justice (ECJ). The Austrian draft bill was presented by labour minister Martin Kocher more than five months after the expiration of the deadline set by the European Commission.
Numerous statements from civil society, but also from the judiciary, were submitted to the labour ministry, criticising the draft as not fit for purpose. The draft was then sent to parliament – ignoring the improvements suggested by experts from the judiciary and civil society.
The EU whistleblower directive provides for reports on misconduct and legal violations in companies and public institutions by persons who have a work-related connection to them, without the risk of negative consequences to them.
Reports of misconduct are often the only means of bringing illicit activities to light that otherwise would remain hidden from the public. Yet in many instances not the persons responsible for the illicit activities are suffering adverse consequences, but those who revealed them.
Whistleblowing is considered part of the freedom of expression and therefore protected by Article 10 of the European Convention on Human Rights.
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