Mining Work Health, Safety Laws and Serious Industrial Crimes in Australia: Down the Shaft of Jurisdictional Inconsistency
1
Faculty of Law and Business, Australian Catholic University, Brisbane, QLD 4014, Australia
2
More Chambers, Brisbane City, QLD 4000, Australia
*
Author to whom correspondence should be addressed.
Laws 2025, 14(4), 49; https://doi.org/10.3390/laws14040049
Submission received: 1 June 2025
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Revised: 10 July 2025
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Accepted: 11 July 2025
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Published: 16 July 2025
Abstract
This article examines the level of inconsistency in work, health and safety (WHS) laws across Australia’s mining sector. Despite general efforts towards national harmonisation through model WHS legislation, significant inconsistencies persist because individual states and territories retain primary regulatory control. A critical analysis of each jurisdiction’s legislative framework reveals a fragmented legal landscape. Queensland, especially, exhibits notable divergence. Key findings highlight a considerable variation in legislative approaches to risk management principles and specific obligations. In particular, a disjointed and incremental approach to serious offences such as industrial manslaughter and provisions concerning imputed conduct are evident. These inconsistencies suggest that corporations operating in multiple Australian mining regions must develop a nuanced understanding of the varying WHS requirements in each jurisdiction. This study underscores the need for caution when assessing risk management strategies aimed at preventing serious incidents because the presumption of a harmonised system can be misleading, especially concerning mining-specific legislation.
1. Introduction
This article examines the complex regulatory landscape governing work health and safety (WHS) within Australia’s mining resources sector. It assesses the legislative variations that have resulted as a consequence of national inconsistencies and raises questions about the level of equal and balanced WHS enforcement across Australia. This is an important consideration due to Australia’s reliance on international investment and markets for its mined resources. Investors might accept a tolerable level of jurisdictional variation to suit regional compliance conditions without compromising optimal performance and continuous improvement. However, given the omnipotently dangerous nature of mining work, this paper argues that inconsistencies in the approach to the most serious industrial crime, manslaughter (IM), are not a topic that should be ignored. This issue has not been discussed in the literature, and this research remedies this deficiency by examining the patchwork of mining WHS laws in relation to this offence, including the serious consequences for those persons who may be imputed by conduct.
1.1. Mining as a Dominant National Industry Concern
The natural resources industry encompasses activities involved in extracting and processing materials that occur naturally within the environment. This broad category includes sectors such as mining, oil and gas extraction. In so far as mining is concerned, rock formations containing metals and other valuable minerals have been historically profitably extracted from the earth’s crust and below. Indeed, Australia produces significant quantities of 19 different minerals across more than 350 operating mines (Geoscience Australia 2025). Australian iron ore, coal and bauxite dominate the global markets.
In terms of dollar value (AUD), Australia’s largest industry is mining. In 2021–2022, it generated over AUD 218 billion in export revenue and represented over 37% of Australia’s total goods and services exports (ABS 2025a). In 2022–2023, the mining industry in Queensland alone contributed AUD 86.5 billion in nominal gross value-added terms and accounted for 18.3% of Queensland’s total output (ABS 2025a, 2025b). This represents approximately 24% of that state’s total economy, making it the largest industry in Queensland and the second largest mining sector in Australia (ABS 2025a). As a national concern, it is almost trite to declare that mining at the national level is socio-politically vital to Australia’s prosperity (ABS 2025a, 2025b). Despite its tremendous economic value, it is nevertheless an unequivocally dangerous undertaking.
1.2. The Dangers of Mining and the Likelihood of Multiple Deaths
Mining is inherently associated with high-risk activity. Historically, mining operations have been linked to significant numbers of fatalities and serious injuries stemming from hazards such as ground or strata failure, high-powered mobile equipment interaction, explosions, fires and exposure to airborne contaminants (Quinlan 2014). Mining work is universally accepted as the most hazardous occupation when the number of people exposed to risk is taken into account. The ILO observes, “Although only accounting for one percent of the global workforce, it is responsible for about eight percent of fatal accidents at work” (ILO 2015). Mining is generally described in the literature (and, of course, in popular culture) as an activity with a focus on perilous conditions and resilient workers who accept the reality of potential accidents and disasters (ILO 2023). These observations highlight the ever-present risk of the ground giving way or the volatile nature of underground environments (Hopkins 2022; Quinlan 2014). To that end, portrayals of harsh working conditions, confinement, harmful dust, air quality, dangerous machinery and tools, human cost and physical and psychological toll are justified and contribute to a public perception of a high-risk workplace (Potvin and Nedin 2003). In recent times, in Australia and New Zealand (NZ) alone, consider the NZ Pike River mine explosion, where 29 workers were killed in 2010 (Quinlan 2014). In the past 50 years in Australia, several mining disasters have occurred, including Moura (Queensland), where in 1975, 13 men died in an underground explosion, followed by a second Moura disaster in 1986 (12 lives), and in 1994, a third major Moura mining accident occurred, with the bodies of the 11 miners unretrieved (Hopkins 2001). In 1999, four miners were killed in New South Wales (NSW), and Tasmania’s Beaconsfield Mine collapse in 2006 placed 17 workers at risk of death, and one miner died (see Hopkins 2022).
Key statistics from Safe Work Australia (SWA) indicate multiple work fatalities are evident, but individual deaths also remain a concern (SWA 2024a, 2024b). By contrast, occasionally, multiple fatalities occur at other workplaces (e.g., the Dream World theme park tragedy in Queensland in 2016, where four patrons died. See Gregson and Quinlan 2024). Accordingly, it is fair to conclude that mining disasters are comparably significant in terms of scale of tragedy.
1.3. Mining as a Politico-Legal State and Territory Work Health and Safety Concern
Since January 2012, harmonised WHS laws in the form of the Work Health and Safety Act 2011 (WHSA Model Law) have been introduced in the Australian Capital Territory (ACT), New South Wales (NSW), Northern Territory (NT), Queensland (Qld), and the Commonwealth (Cth).1 In January 2013, South Australia (SA) and Tasmania (Tas) also subscribed to the Model Act. By 2021, Western Australia (WA) had enacted its version of the Model Law. Despite initial interest in harmonisation, Victoria, Australia’s second most populous state (ABS 2025a), has not joined the scheme, and there appears to be no interest by its government in harmonising its health and safety laws along national lines.
Generally, WHS legislation in Australia is described in the literature and promoted by regulators as a harmonised scheme that was created to afford consistent worker protection for a balanced and nationally consistent framework so as to secure the health and safety of workers (see SWA 2024a; Foster et al. 2014; Bluff and Johnstone 2017; Schofield et al. 2014). At best, however, Australia’s “nationally consistent framework”, as stated in the Object of the Model Law, could be described as a near-harmonised WHS regulatory framework model. This is because, in the absence of any express Commonwealth power to legislate for the health and safety of individuals affected by work activities, the business of protecting workers (employees), individuals or other persons against harm to their health, safety and welfare through the elimination or minimisation of risks is the responsibility of second-tier government (and whose direct focus is not the national interest). Specifically, the mining industry is one arena that has never, historically, been an integrated or complete feature of harmonisation. Consequently, this article explores the level of inconsistency in mining and investigates the extent to which differences exist from one jurisdiction to another.
This investigation is important because what is missing from the literature is why the mining sector, the second largest Australian industry in terms of output (12.2%) and is just behind the combined work output of health and education (13.4%) (RBA 2025a, 2025b) has resisted harmonisation. Traditionally, mining, gas and petroleum have been politically and legislatively dissociated from WHS laws (especially in Queensland and WA).2 One reason for this dichotomy is likely because mining has been viewed as a distinct activity from other work activities in Australia. Another reason may be that, combined, these two states account for over 70% of all mining in Australia (Statista 2024), thereby asserting some form of politico-legal influence. The fact that WA, the largest mining jurisdiction, incorporated mining activities into its general Work Health and Safety Act 2020 (WA) only as recently as 2022, and Queensland firmly resists merging its mining laws under a harmonised scheme, suggests that mining WHS regulation is a site of political contest.
1.4. Themes
This article investigates the extent to which mining WHS jurisdictions are comparably consistent from one jurisdiction to another in Australia. The first theme focuses on different risk management standards (principles, philosophies or tests) enshrined in the respective legislation (Bluff and Gunningham 2004). It critically examines the role of the different core legislative WHS principles, namely “So Far As Is Reasonably Practicable” (SFAIRP), “As Low as Reasonably Achievable” (ALARA) and “As Low As Reasonably Practicable” (ALARP), to determine if any substantive differences exist in these risk management principles in a practical sense. Subsequently, it identifies distinct but interconnected inconsistencies in these legal frameworks to suggest a less-than-ideal harmonised compliance setting.
The analysis then proceeds to the second theme by providing a comparative overview of mining IM laws in each Australian jurisdiction. The principles SFAIRP, ALARA and ALARP are compared to determine whether these tests materially contribute to inconsistencies in the application of IM, or whether these tests matter at all for this offence. Additionally, the issue of conduct imputed by way of attribution, e.g., when an employee fails to follow proper instructions, is examined in the context of IM. The justification for this two-stage approach is that legal frameworks governing workplace fatalities in Australia have undergone a significant transformation with the introduction of IM laws across various states and territories. Yet, rarely are inconsistencies considered concurrently with legislative change.
Legislative evolution reflects a national impetus towards enhancing accountability for deaths occurring in the workplace; a movement substantially driven by public concern following workplace tragedies (e.g., Dream World in Queensland) and recommendations from pivotal inquiries, such as the Boland Review (Boland 2018) at the national level. Despite being part of the harmonised scheme, however, the Queensland government commissioned an independent WHS review; including IM laws (Lyons 2017). As explained above, the mining industry, characterised by its inherently high-risk operational environment, stands as a critical focal point for reforms; however, it has not played a major role in the harmonisation process. Indeed, until recent years, mining has resided in a regulatory workplace silo (and in some jurisdictions, it squarely remains independent or standalone).
In any event, the recent introduction of IM laws has not been a uniform national process. Jurisdictions have enacted IM at different times, creating an environment of inconsistency. It is contended that, for national mining companies whose operations frequently span multiple states and territories, this staggered rollout presents a complex and shifting compliance landscape. For international investors, this regulatory fragmentation will likely contribute to uncertainty, complicate due diligence processes, and make assessing potential legal liabilities, especially concerning the varying IM laws and penalties, more difficult. This may have been a tolerable issue in the past, but now sentences for breaches of WHS offences that attract life imprisonment are a feature in some Australian jurisdictions. It is suggested that the national guidelines to address these unresolved issues should be considered by SWA and regulators.
2. Methods and Limitations
This study employed a combination of qualitative comparative critical legal analysis methodologies (van Hoecke 2011) to examine the material variations and differences in WHS legislation that are concerned with mining activities across all Australian state and territory jurisdictions (current to May 2025). The primary data sources for this research comprised the legislative instruments set out in Table 1, accessed through parliamentary and government websites. For completeness, corresponding explanatory notes or memoranda were also assessed for legislative context and intent.
In particular, the Model Law and the respective Acts of each Australian jurisdiction (see tables below), under the so-called harmonised scheme, have been comparatively analysed against jurisdictions where the Model Act does not apply (see the two-stage process below). As mentioned, Victoria is not part of this scheme, and Queensland subscribes to the scheme for most WHS activities but has separate mining-specific (and other resources) legislations for operational work/occupational health and safety regulation and compliance.
The nature of this fragmentated landscape subsequently allowed for the application of a functional legal methodology (van Hoecke) to examine and uncover the underlying societal requirements and objectives that divergent legal rules aim to fulfil in a complex socio-legal framework. In complex societies, the role of law is supposed to ensure different elements of society function effectively and predictably together (Durkheim 1893), that is, under a consistent or harmonised framework for specific legal arenas, namely WHS. In this context, the law achieves a form of solidarity that is organic rather than mechanical. It does this by creating certainty and predictability in behaviour. Consequently, the functional method proves useful for pinpointing legal convergence and divergence and for understanding the foundational values and goals that legal systems strive to realise.
Table 1.
The national WHS mining legislative framework.
| Jurisdiction | Key Legislation (Acts and Regulations) |
|---|---|
| NSW |
|
| Qld |
|
| WA |
|
| SA |
|
| Tas |
|
| NT |
|
| ACT |
|
| Vic |
|
To support the cross-sectional analytical and functional approaches, a comparative common law approach was residually adopted to analyse the nexus with shared legal rules to determine the extent of divergence across different Australian legal systems. This is critical because the legal definition of “reasonably practicable”(RP) (R v Australian Char Pty Ltd [1999]) is broadly consistent in three common law jurisdictions (United Kingdom (UK), NZ and Australia). Thus, a brief examination of the British approach has been provided to compare and contrast any shared cultural and historical backgrounds in light of Australia’s received tradition of WHS legislative influence from the UK.
The two-stage cross-sectional statutory approach has been designed to extract and analyse relevant provisions from the respective Australian legislation in light of the above theoretical framework. Stage 1 broadly involves:
- The identification and review of key provisions surrounding general risk management principles and tests—the legal philosophy adopted to demonstrate the discharge of a general duty or obligation3;
- A cross-jurisdictional comparison of these provisions;
- A cross-sectional analysis of similarities and differences in the legislative language and requirements relevant to these risk-based principles;
- An analysis of the variations in the scope and application of duties in accordance with the principles.
Stage 1 of the analysis adopts a broad view, identifying and reviewing the key provisions related to general risk management principles. The findings in this part of the comparative analysis have been synthesised to identify divergences in the legislative response to risk management principles.
Stage 2 narrowly focuses on the identification of inconsistencies in the approach to IM and imputed conduct by:
- Identifying these serious crime provisions in the Acts;
- Comparing key fault elements of the offence and determining any nexus with the relevant statutory risk management principle;
- Assessing maximum penalties (fines and imprisonment) for individuals and corporations. This includes identifying the relationship between WHS legislation and criminal law;
- The scope of individuals whose conduct may be imputed (e.g., an officer, employee or agent) can be attributed to a body corporate (thresholds for imputation, such as knowledge, authorisation or recklessness). This includes any specific provisions related to chains of responsibility or due diligence in the context of imputation.
Stage 2 narrows the focus to the inconsistencies in the legislative approach to industrial manslaughter (IM) and imputed conduct. The fact that other serious crimes, such as recklessness, feature under Model laws but not mining-specific statutes is also considered in this narrow context.
The findings in this part of the comparative analysis have been synthesised to identify divergences in the legislative response to the most serious crime, IM. This methodological approach provides a robust framework for a systematic analysis of the legislative frameworks governing IM and imputed conduct within the Australian WHS context.
Limitations of this study are acknowledged. In a comparative law methodology assessment, it is accepted limitations exist because legal themes are deliberately selected based on the research design as set out above, and at the exclusion of others (Glenn 2007). The methodological approach potentially contains biases (Legrand 2023). That is, the analysis is confined to narrow legislative text and does not extend to a detailed, systematic review of case law or international laws, which might influence the practical application of the legislation. This study also excludes the gas and petroleum sectors, which are governed by separate WHS legislation in some jurisdictions. A future comparative study of these industries could further highlight the fragmented nature of Australia’s WHS legal system. Another limitation is that while a comprehensive review of the legislation has been undertaken, the analysis focuses on key provisions concerning IM. Other (less) serious provisions (e.g., reckless conduct) are identified but not addressed in this study to the extent that IM has been examined, and may also have relevance. However, it should be acknowledged that while IM features in Australia, irrespective of the specific mining WHS statute, recklessness does not.
The research methods used in this study align with the questions being asked about the nature of inconsistencies under review. If the law is a device used both for ensuring that human beings and corporate citizens harmonise their actions and behaviours with social expectations (van Hoecke 2002) and compensating them for departures from the social order, then questions should be raised about procedural and substantive divergences. If the law is a mechanism for achieving social solidarity and holding society together in Australia, then the approach to consistency in WHS in mining should be questioned because it is far from harmonised.
3. Findings
3.1. Overview of State- and Territory-Based Regulation of Mining Safety in Australia
A significant development in Australian WHS law has been the move towards national harmonisation. The objective of this initiative was to create greater consistency in WHS laws across the country, thereby reducing regulatory burdens for businesses operating nationally and improving safety outcomes. As mentioned above, all Australian jurisdictions except Victoria have adopted legislation based on this model framework. Victoria operates under its Occupational Health and Safety Act 2004.
Despite Victoria’s uniqueness in terms of general OHS regulation, as of 2025, all Australian jurisdictions under the harmonised scheme (and Victoria), except Queensland, have generally adopted laws to incorporate mining safety under a broader WHS rubric.
Table 1 and Table 2 set out the current legislative landscape in Australia and should be read together. Table 3 presents a matrix of the interrelationship of the principles enshrined in the respective laws. Table 4 summarises the serious crimes provisions contained in the legislation. Table 5 summarises the data contained below for quick reference to the key differences in the statutes.
It should be noted that despite the appearance of specific mining legislation in NSW, SA, WA and SA, there is no standalone Act as is the case in Queensland. In other words, the substantive provisions, including management principles and offences, are part of the harmonised WHS Acts of those jurisdictions. Table 2 below provides an explanation.
Table 2.
Overview of the relationship between model WHS laws and mining jurisdiction.
| Jurisdiction | Separate Mining Laws | Explicit Relationship with Respective Work Health and Safety Laws/Occupational Health and Safety Act 2004 (Vic) |
|---|---|---|
| NSW | No (but see Table 1) | Yes: laws in Table 1 assist in securing the objects of the Work Health and Safety Act 2011 at mines and petroleum sites, and express a relationship with the WHS Act. |
| Qld | Yes | No relationship with the mining Acts. Section 3 of the WHS Act explicitly states it does not apply to a coal mine or other mines pursuant to the specific Acts. (Historically, this has always been the position.) |
| WA | No | Yes |
| SA | No (but see Table 1) | Yes |
| Tas | No (but see Table 1) | Yes—to be read together with the Work Health and Safety Act 2012 as a single Act. |
| NT | No | Yes |
| ACT | No | Yes |
| Vic | No | Yes: Occupational Health and Safety Act 2004 (Vic) is explicitly listed as the primary mining safety law. |
Queensland is unique in that, unlike Victoria, it is part of the harmonised Model Laws scheme, generally, but not for WHS mining (and for that matter, petroleum and gas activities). In terms of WHS mining, Queensland is completely detached from the WHS Act 2011 and applies specific legislation (see Table 1). This finding may at first appear to be of minor national consequence in that Queensland is the only mining jurisdiction to remain independent of the WHS regime.4 After all, Victoria has separate legislation for its health and safety obligations, so what does it matter if only one out of eight mining jurisdictions has not subscribed to uniform mining laws? The issue is of national concern because, unlike Victoria, Queensland mining is significantly the second largest mining industry in Australia, and this legislative gap suggests a significant lack of harmonisation in terms of mining activities. Accordingly, the absence of a single, overarching national mining safety law necessitates detailed comparative analyses to understand these significant differences despite the fact that they relate to only one state. As the industry is so dominant in Queensland, the detachment from a harmonised scheme is interrogated below.
Any perception of harmonised influence is primarily the result of the establishment of SWA pursuant to the Safe Work Australia Act 2008. Its function is advisory to encourage a consistent, national WHS policy for improving WHS outcomes across Australia. Its responsibility is to administer the Model Laws (SWA 2012). The Model Act itself does not mandate conformity to the model WHS legislative framework developed by SWA (SWA 2013). Application remains the responsibility of state and territory regulators. A preliminary finding, therefore, is that mining in Queensland starkly stands alone from the rest of Australia for socio-economic and political reasons. Despite the appearance of a unified national mining legislative framework, and as the Australian federal government does not directly regulate WHS, each jurisdiction is examined individually below.
3.2. Queensland: A Distinct Legislative Model for Mining Safety
As set out in Table 1 and Table 2, Queensland maintains a comprehensive but independent legislative structure for mining safety, deliberately setting it apart from the state’s general WHS framework. Instead of integrating mining into its WHSA 2011 (Qld), Queensland regulates the sector through two principal industry-specific statutes: the Coal Mining Safety and Health Act 1999 (CMSHA) for coal operations, and the Mining and Quarrying Safety and Health Act 1999 (MQSHA) for all other mining and quarrying activities.
3.3. Legal Duties and Risk Management Principles: SFAIRP, ALARA or ALARP?
A general legal framework governing health and safety in the Australian mining industry places specific duties and responsibilities on various parties involved in mining operations. Generally, persons conducting a business or undertaking (PCBUs)/employers5 in the mining sector have a primary duty to ensure, so far as is reasonably practicable (SFAIRP), that the health and safety of workers and other individuals are not put at risk from the work carried out (McGurk and Bardell 2023). In most of Australia, this overarching duty includes eliminating or minimising risks to health and safety to the greatest extent possible.
The first notable difference is the Model Law duty provision at s19 requires PCBUs to ensure safety objectives are met, SFAIRP. In Queensland, both the CMSHA at s29 and MQSHA at s26 require that risk be at an acceptable level, which is within acceptable limits and as low as reasonably achievable (ALARA). These differences will be examined in the sections to follow.
Prima facie, the core concepts behind SFAIRP, ALARA or ALARP may appear very similar, all revolving around the idea of reducing risk to a tolerable level by balancing the potential harm against the effort required to implement further risk reduction measures (Tranquillo et al. 2022; CASA 2022). (Technical observations aside, this inquiry is concerned with what the Legislature has stipulated.)
There is no definitional or ministerial guidance material for an understanding of the division of SFAIRP and ALARP, but the separation suggests more than a semantic distinction. Furthermore, nothing in any explanatory memoranda suggests that any of these risk management principles are interchangeable and, otherwise, are deemed identical. Table 3 underscores that SFAIRP is the prevalent statutory term, with Queensland’s explicit adoption of ALARA for its mining Acts being a primary deviation.
The regulatory application of ALARP appears consistent (except Victoria), but it is subordinated to specific processes contained in the respective regulations. In any event, a regulation would ordinarily be subsumed under the broader statutory construction of the relevant Act in force, containing the dominant risk management principle, namely, SFAIRP or ALARA (unless otherwise specified).
Table 3.
Inter-jurisdictional use of SFAIRP/ALARP/ALARA risk management principles in mining legislation.
Table 3.
Inter-jurisdictional use of SFAIRP/ALARP/ALARA risk management principles in mining legislation.
| Jurisdiction | Explicit Use of SFAIRP in WHS Mining Law (Acts) | Explicit Use of ALARA in WHS Mining Law (Acts) | Selected Use of ALARP in WHS Mining Law (Regulations) |
|---|---|---|---|
| NSW | Yes | No | Yes: Only indicated for specific activities. ALARP is dominantly applied (one reference to SFAIRP, electrical safety). |
| Qld | No | Yes | Yes: Mixture of ALARP, SFAIRP and As Low as Practicable is indicated for specific activities only. ALARA test for limiting workers’ exposure only in the corresponding Acts. |
| WA | Yes | No | Yes: Narrowly indicated for specific activities. SFAIRP dominant test in Regulation. |
| SA | Yes | No | Yes: Narrowly indicated for specific activities. SFAIRP dominant test in Regulation. |
| Tas | Yes | No | Yes: Narrowly indicated for specific activities. SFAIRP dominant test in Regulation. |
| NT | Yes | No | Yes: Narrowly indicated for specific activities. SFAIRP dominant test in Regulation. |
| ACT | Yes | No | Yes: Narrowly indicated for specific activities. SFAIRP dominant test in Regulation. |
| Vic | Yes | No | No: So Far As Is Practicable in regulations where indicated for specific activities (neither ALARP nor SFAIRP). |
3.4. Terminological Variations: Incident, Accident, Event or Occurrence
Another peculiar feature of standalone mining health and safety legislation is the variance in distinct terminology to describe occurrences. In most jurisdictions, “incident” is broadly used in terms of causation. In Queensland, the two mining-specific Acts predominantly use “accident”, “serious accident”, and “high potential incident”. In Queensland mining legislation, the term “event” and “occurrence” are also generally used in a non-specific, descriptive sense within the legislative texts and guidance, referring to happenings or circumstances without carrying a precise, defined legal meaning for reporting unless incorporated into a defined term like “dangerous incident” or “reportable incident.” For example, “serious accident” is defined as an accident-causing death or an injury/illness requiring admission to a hospital as an inpatient (CMSHA, s16). The scope is very prescriptive. This is raised in the context of the Model Law Acts in Table 1, specifically adopting the term “incident”6, and the distinctions made in Queensland mining laws not only add common law definitional complexity, but also demonstrate a reluctance to conform to SWA’s terminology as adopted under the Model Law.
3.5. Industrial Manslaughter and Mining
Industrial Manslaughter Overview
While the IM offence exists nationwide, its specific formulation, the required fault element, and the maximum penalties vary significantly. The following table provides a comparative overview of Australia’s IM provisions and highlights the distinct inconsistencies.
Nationwide establishment of IM laws clearly reflects a decisive shift in legal and societal expectations concerning accountability for workplace deaths (Boland 2018). However, as set out in Table 4, fault elements required to prove the offence vary, ranging from negligence in some jurisdictions to higher thresholds of gross negligence or recklessness in others. Maximum penalties also differ considerably, and, in the NT, a maximum of life imprisonment may be imposed. This lack of harmonisation means that mining corporations operating across state borders must navigate a complex matrix of legal standards for the most severe WHS offence, thereby complicating uniform safety policy development and legal risk assessment. As discussed below, what the cross-sectional findings reveal is that while common principles nationally appear like-for-like, notable differences exist to suggest heightened legal vigilance and tailored compliance strategies for the mining sector within a disjointed framework. For a quick reference of the data presented in Table 1, Table 2, Table 3 and Table 4, Table 5 summarises these differences. For completeness, Table 6 provides a brief comparison of Australia compared to two closely related common law jurisdictions, which are briefly discussed below. Its purpose is to illustrate the vexed and inconsistent approach, especially in terms of serious crimes.
Table 4.
Overview of industrial manslaughter and mining legislation.
| Jurisdiction | Primary Act & IM Section(s) | Key Persons Liable | Main Fault Element(s) | Maximum Corporate Penalty—Fine | Maximum Years Individual Penalty—Imprisonment | Alternative Conviction (Varies) |
|---|---|---|---|---|---|---|
| NSW | WHS Act 2011, ss32B-F | PCBU, Officer | Gross negligence causing death | $20 m | 25 | Yes |
| Qld | CMSH Act 1999, s48A-D MQSH Act 1999, s45A-D | Employer, Senior Officer | Negligent conduct causing death (express absence of element breaches the health and safety duty’ | $10 m | 20 | No |
| WA | WHS 2020, s30A | PCBU, Officer | No reference to negligence or reckless. Conduct causing death, knowing it was likely to cause death and disregarding that likelihood (“connivance”) | $10 m | 20 and/or $5 m fine | Yes |
| SA | WHS Act 2012 s30A | PCBU, Officer | Gross negligence or recklessness causing death | $18 m | 20 | Yes |
| Tas | WHS Act 2012 s29A-D | PCBU, Officer | Negligent or reckless conduct causing death (expressly contains the element that breaches the health and safety duty) | $18 m | 21 | Yes |
| NT | WHS Act (National Uniform Legislation) Act 2011, s34A-E | PCBU, Officer | Negligent or reckless conduct causing death | $12 m | Life | Yes |
| ACT | WHS Act 2011 s34A-B | PCBU, Officer | Negligent or reckless conduct causing death | $18 m | 20 | Yes |
| Vic | OHS Act 2004 s39G | Applicable entity, Officer | Negligent conduct causing death | $19.7 m | 25 | Yes |
Table 5.
Summary of jurisdictional inconsistencies in Australian mining WHS legislation.
| Jurisdiction | Primary Legislative Model | Core Risk Principle | IM and Reckless Offences Exist? | IM Fault Element | Maximum Individual Penalty for IM |
|---|---|---|---|---|---|
| NSW | Harmonised WHS Act with supplementary mining laws | SFAIRP | Yes | Gross negligence | 25 years |
| Qld | Standalone Mining Acts | ALARA | No (just IM) | Negligent conduct | 20 years |
| WA | Harmonised WHS Act | SFAIRP | Yes | Knowing conduct was likely to cause death and disregarding that likelihood | 20 years |
| SA | Harmonised WHS Act with supplementary mining laws | SFAIRP | Yes | Gross negligence or recklessness | 20 years |
| Tas | Harmonised WHS Act with supplementary mining laws | SFAIRP | Yes | Negligent or reckless conduct | 21 years |
| NT | Harmonised WHS Act | SFAIRP | Yes | Negligent or reckless conduct | Life Imprisonment |
| ACT | Harmonised WHS Act | SFAIRP | Yes | Negligent or reckless conduct | 20 years |
| Vic | Standalone OHS Act | SFAIRP | Yes | Negligent conduct | 25 years |
For completeness, the following table provides a brief overview of distinct but interconnected approaches to risk management principles and serious crimes in three common law nations. It demonstrates that despite the appearance of similarities in the practical sense, significant distinctions exist in attitudes towards a risk management test, IM and reckless conduct. It should also be mentioned that the UK distinctly treats manslaughter as an offence under separate legislation (see Table 6). This Act has created a specific offence for which companies and other large organisations can be found guilty if a death is caused by a gross breach of a relevant duty of care, and a substantial part of that breach was in the way the organisation’s senior management managed or organised its activities. The approach is merely acknowledged here in that it is two-tiered in that a breach of the HSWA formatively creates the context for which a prosecution for corporate manslaughter might be commenced. Despite NZ’s post-Pike River Mine reforms as a result of that recent disaster (see above), its Act does not contain a specific IM offence, but the most serious offence is reckless conduct, which exposes an individual to a risk of death or serious injury (comparable to Australia’s s31 Model WHSA 2011). This is, however, the converse in Queensland. In any event, while the laws in the UK and NZ differ (Table 6), it is, therefore, somewhat incongruous that such significant differences exist in Australia (Table 4 and Table 5).
Table 6.
Cross-jurisdictional snapshot comparison of three comparable common law nations.
| Mining Laws | Australia | New Zealand | United Kingdom |
|---|---|---|---|
| Legislative Model | Harmonised WHS Act (most jurisdictions, excluding Victoria); except Queensland | Health and Safety at Work Act 2015 | Two-tiered approach: Health and Safety at Work etc. Act 1974; (plus distinct Corporate Manslaughter and Corporate Homicide Act 2007) |
| Core Risk Principle | SFAIRP (most jurisdictions); except Queensland, ALARA) | SFAIRP | SFAIRP for HSW Act |
| Specific Industrial Manslaughter Offence in Acts | Yes, plus a separate offence of reckless (except Queensland) | No (only reckless) | Not in HSW Act; see distinct Act |
| IM Fault Element | Ranges from negligence, gross negligence or recklessness | n/a | Gross breach of a relevant duty of care (for corporate manslaughter, gross negligence manslaughter for officers and relevant individuals) |
| Maximum Individual Penalty for IM | Range up to life | n/a | Pursuant to Sentencing Council Guidelines |
The subject of discussion below, divergence in the respective Australian laws, is most clearly illustrated in the fault elements required for a conviction and the severity of the penalties imposed. Australian jurisdictions all contain IM; however, there exist different standards concerning negligence, gross negligence or recklessness required elsewhere in Australia. To complicate matters, specific mining Acts in Queensland do not contain the distinct offence of reckless (known as Category 1 ubdet the Model WHSA). As Table 4 illustrates, even at a harmonised level, Australia’s federal system has resulted in a patchwork of IM laws. The introduction of a “negligence” standard for IM is a significant distinction when considering the requirement for an element of gross negligence required for manslaughter under criminal law. This potentially lowers the threshold for a conviction.
4. Discussion
4.1. Overview—Polytomous Risk Management Principles in WHS Mining Legislation: SFAIRP, ALARP or ALARA—Does It Really Matter?
In the context of Australia’s Model WHSA (and in Victoria’s Act), the phrase SFAIRP is used to qualify the extent of a duty holder’s responsibility to ensure health and safety (as stated in s17 and elementised in 19–26, 46 of the Model Australian laws). As Table 6 depicts, in the UK and NZ, the risk management principle also adopted is SFAIRP in the respective Acts. As such, SFAIRP is the definitive legal test in these jurisdictions. Its meaning is derived directly from the “gross disproportion” principle articulated in Edwards v National Coal Board (1949). The SFAIRP duty applies at all levels of risk. That is, even for a risk that is considered acceptable, if a reasonably practicable control measure exists that can reduce the risk further, it must be implemented, unless the duty holder can demonstrate that the cost of doing so is grossly disproportionate to the risk reduction benefit. This is what is meant by the qualification “so far as is” for the purposes of the relevant legal standard. McWilliams v Sir William Arrol & Co Ltd & Anor [1962] underscores the significance of SFAIRP. The statutory duty in question in that case required employers to ensure safety “so far as is reasonably practicable”. The phrase SFAIRP introduces a qualified, rather than an absolute, obligation on the employer. This standard requires a balancing act, weighing the level of risk against the cost, time and effort required to mitigate it (Bourk v Power Serve P/L & Anor [2008]).
As set out below, by stark contrast, ALARA, as it is featured in those separate Acts, provides:
The risk must be reduced to “an acceptable level”. An “acceptable level of risk” is one “within acceptable limits” and “as low as reasonably achievable”. The persons upon whom those obligations fall must “ensure” that the risk falls to that level. That obligation is “absolute”. Exculpations are excluded by s 48(3) of the CMSHA (Davis P in Anglo Coal (Moranbah North Management) Pty Ltd v Stone [2025] ICQ 011 at 85.)
Thus, SFAIRP involves a cost analysis in which the burden of proof lies with the duty holder to demonstrate that all reasonable and practicable measures have been taken to minimise exposure to harm. However, ALARA emphasises keeping exposure as low as acceptably possible (tolerable), which suggests consideration of socio-economic factors. This may be interpreted as having a stronger emphasis on reduction without necessarily a “grossly disproportionate” cost test. Indeed, it was observed by Davis J that “Nothing in the CMSH Act is suggestive of any balancing of safety and commercial interests. The risk must be “within acceptable limits” and “as low as reasonably achievable…” Some operations may be such that whatever safety measures are taken, the risk cannot be brought “within acceptable limits” and, therefore, operations must cease (BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024], at [27]).
The focus in ALARA suggests a continuum of constant improvement for even lower levels for acceptability. An argument is, therefore, raised below of inconsistent risk tolerance tests, which is incongruent with a harmonised or cohesive safety culture for corporations and their levels of risk acceptance across the same site or company, potentially creating a less cohesive framework.
4.1.1. What Is Reasonably Practicable?
In Australia, for SFAIRP (and ALARP), the root phrase “reasonably practicable” (RP) is defined in s18 of the Model WHS Act. This definition is paramount to understanding the scope and application of the SFAIRP duty:
18. What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, considering and weighing up all relevant matters including:
- (a)
- the likelihood of the hazard or the risk concerned occurring; and
- (b)
- the degree of harm that might result from the hazard or the risk; and
- (c)
- what the person concerned knows, or ought reasonably to know, about:
- (i)
- the hazard or the risk; and
- (ii)
- ways of eliminating or minimising the risk; and
- (d)
- the availability and suitability of ways to eliminate or minimise the risk; and
- (e)
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
This phrase represents the fundamental legal standard that qualifies the general duties imposed by primary health and safety legislation in the UK7, and applies broadly to workplace hazards in Australia (Holmes v RE Spence & Co Pty Ltd [1992]).
It embodies the following essential elements, namely a duty to do what is reasonably able to be done to ensure health and safety, involving a balance between the risk and the sacrifice required, with action mandated unless the sacrifice is grossly disproportionate to the risk (Sirrs 2015). Table 7 provides a detailed summary of the elements of s18 above.
Table 7.
Elements of the Reasonably Practicable Test.
| Elements of 18 (a–e) | Practical Description of WHS Act s18 (a–e) |
|---|---|
| (a) | The probability or chance of the hazard or risk eventuating. A greater likelihood generally requires more robust control measures. |
| (b) | The potential severity of injury, illness or damage if the hazard or risk materialises. Therefore, more significant potential harm warrants a greater effort and expenditure on controls. |
| (c) | This includes actual and constructive knowledge. Duty holders must proactively identify hazards, understand risks and be aware of current methods for risk elimination or minimisation, including industry best practices and technological advancements. Thus, this knowledge is dynamic and requires ongoing updating (state of knowledge). |
| (d) | Consider whether control measures exist (e.g., innovation and relevance) and whether they are feasible, appropriate and effective for the specific circumstances of the particular risk. A control should be meaningful and practical to implement (e.g., does work on a roof’s edge require physical barrier edge protection or a harness?) |
| (e) | The financial and other costings (i.e., time, trouble, practicability) that are involved in implementing control measures. Cost is considered after assessing the risk and available controls. A control measure must be implemented unless the cost is grossly disproportionate to the risk reduction benefit. The onus is on the duty holder to prove gross disproportionality. The capacity of the duty holder to pay is generally not a relevant consideration (Gross Disproportionality Test)8 |
This statutory definition is prescriptive in the sense that the matters in s18 of the Model Law must be considered; however, it is not exclusive. The use of the term “including” implies that while these five categories of factors are mandatory considerations, other relevant matters specific to a particular situation or industry may also be pertinent and should be taken into account.
Several key interpretive principles flow from this definition. First, the determination of what is “reasonably practicable” is an objective test (Robens 1972). This means a duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder’s position. It requires a reasonable person to be equipped with the necessary knowledge and resources for that type of undertaking (WorkCover Authority of NSW v Cleary Bros (Bombo) Pty Ltd [2001], Baiada Poultry Pty Ltd v The Queen, (2012)).
Guidance from SWA Australia (SWA 2023a, 2023b) and state regulators often breaks down “reasonably practicable” into two elements: first, a duty holder must consider what can be done (i.e., what is possible in the circumstances for ensuring health and safety); and second, they must then consider whether it is reasonable, in the circumstances, to do all that is possible. The underlying principle is that what can be done should be done unless it is reasonable in the circumstances for the duty holder to do something less. The overarching objective of the WHS Act, as reflected in its objects section (e.g., Section 3(2) of the model WHS Act), is to ensure that workers and other persons are given the “highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable”. This standard informs the interpretation of what is “reasonably practicable”.
4.1.2. The Common Law Evolution of Reasonably Practicable (RP)
The RP principle has historical roots, originating in 19th-century English common law as a standard to determine if a duty of care for work health and safety had been met (Peace 2017). Its most famous judicial articulation is often attributed to the case of Edwards v National Coal Board (1949). In this case, Lord Justice Asquith outlined the balancing act involved: weighing the quantum of risk against the sacrifice (in money, time or trouble) required to avert it. This common law understanding was subsequently codified in the UK’s HSWA, which, in turn, heavily influenced Australian jurisprudence. The Court held:
The construction placed by Lord Atkin on the words “reasonably practicable” in Coltness Iron Co. v. Sharp [citation omitted] seems to me, with respect, right. “Reasonably practicable” is a narrower term than “physically possible” and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them—the risk being insignificant in relation to the sacrifice—the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s. 49? (b) Are these measures reasonably practicable?
By requiring gross disproportionality before a precaution to be deemed not RP, the law places a high value on preventing harm, demanding significant effort and expenditure from employers unless the cost is truly exorbitant relative to the safety benefit. This inherent asymmetry, placing the burden of proof squarely on the employer to demonstrate gross disproportionality, reflects the protective aims of health and safety legislation. Consequently, the foreseeability of risk is relevant not only to the defence of RP but also to whether the workplace was safe in the first place.
4.1.3. So Far as Is—Reasonably Practicable (SFAIRP): The Dominant Standard
What then is SFAIRP? The requirements within s18 seem to foster a culture of continuous improvement and innovation. Applying the qualifying words “so far as is” suggests SFAIRP is not a static standard. Instead, it is a dynamic duty that compels organisations to remain vigilant, stay informed of advancements in their field, and continuously seek out and implement better safety solutions as they become reasonably practicable. This proactive stance is evident in guidance suggesting that SFAIRP goes beyond merely replicating past practices and must consider new and updated technologies and knowledge (EOA 2019).
Indeed, this duty is elaborated in s17 of the Model Law, which addresses the management of risks and introduces the qualifying words “so far as is”. It requires a PCBU, in meeting their primary duty of care, to:
(a) eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable (emphasis added).
This establishes a clear hierarchy of control measures within the SFAIRP framework, mandating elimination as the primary objective.
Australian courts have consistently affirmed that the duty to ensure safety SFAIRP is a positive and proactive one (see Turner v South Australia (1982) at 839, 840, per Gibbs CJ). As Table 3 highlights, SFAIRP stands as the central and overarching legal standard for risk management under the model WHS Acts and Victoria. In the Australian mining industry (except Queensland), this means mine operators as PCBUs have a fundamental duty to eliminate risks to health and safety, SFAIRP. If elimination is not possible, they must minimise those risks, SFAIRP. The principle might be seen as emphasising the implementation of all RP precautions. The question is whether all reasonable steps have been taken, given that its focus is on precaution (Black 2006).
4.1.4. As Low as Reasonably Practicable (ALARP)—Confined to Regulations:
The term ALARP does not appear in the Australian (or UK) Acts. It is mentioned in parts of subordinate legislation for operational purposes (see McDonald v Bell [2020]). Accordingly, ordinary statutory interpretation principles would suggest it is not identical to SFAIRP (despite sharing an RP nexus). Furthermore, it is omitted from s17 of the Model Act “Management of risk” (see above).
The principle is based on the notion that risks, lower than the “limit of tolerability”, are tolerable only if risk reduction is impracticable or if its cost is grossly disproportionate (depending on the level of risk) to the improvement gained (ANCOLD 2022). It is regarded as a risk management concept applied to define boundaries between risks that are generally intolerable, tolerable or broadly acceptable (Tranquillo et al. 2022). It seems the ALARP principle aims to reduce risks as far as possible “without cost expenditure that is disproportionate to the benefit gained, or where the solution is impractical to implement” (Jones-Lee and Aven 2011 in PMCSA 2016). The Office of the National Rail Safety Regulator (ONRSR) explains:
Sometimes the term ALARP is used by the rail industry. Both ALARP and SFAIRP have at their core the concept of reasonably practicable…Duty holders should be cautious of using ALARP guidance documents produced by other jurisdictions or for legal frameworks.
However, the case law does not suggest these terms ought to be conflated but rather are purposefully distinguished as distinct tests (The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council [2025]).
As observed in Construction, Forestry, Mining & Energy Union v State of Queensland & Anor [2004], the term is widely relegated to regulatory risk management practice for practical application in subordinate legislation. While some guidance material suggests SFAIRP and ALARP are functionally compatible, it would be prudent to carry out risk management in accordance with the precise term found in the relevant legislation when making formal legal arguments or documenting compliance (see Robinson and Francis 2014). This is because, despite conceptual similarities, the specific legal tests and precedents are ordinarily tied to the statutory language. Using ALARP, for example, colloquially might be tolerated, but demonstrating compliance in a legal context requires addressing the SFAIRP standard as specified in the Act. This legislative specificity is not accidental; it reflects a particular approach to safety duties. The test SFAIRP entails a distinct, and potentially more rigorous, legal standard than that which might be inferred from some applications of ALARP (NOPSEMA 2020).
Crucially, SWA consistently uses the term SFAIRP in its interpretive guidelines and supporting materials. The term ALARP is conspicuously absent from its official guidance on the model WHS Act. This consistent usage by the primary national policy body is a strong indicator of the legally preferred terminology and the conceptual approach underpinning Australian WHS law.
Under this view, the ALARP approach may be characterised by assessing whether something is so bad that an intervention is required (Reason 1998; Baybutt 2014). This implies a threshold of risk that must be crossed before action is mandated (Reason 1998). Conversely, SFAIRP is anticipatory in nature by emphasising a positive duty to implement all reasonably practicable precautions, irrespective of whether a calculated risk level falls below a certain “tolerable” threshold (DEECA 2024). The focus is on the availability and reasonableness of precautions themselves (Toft 1996).
The emphasis on SFAIRP can be seen as fostering a more advanced safety culture. The proactive stance inherent in the SFAIRP philosophy aligns with the notion of a “generative” safety culture, as described by Reason (1998). Such a culture is marked by a constant vigilance, a willingness to learn and a shared commitment to seeking out and implementing better safety solutions, rather than merely meeting minimum compliance standards (Waring and Glendon 1998). It is suggested that an ALARP approach, if misapplied to simply achieve a pre-defined “tolerable” risk target (TfNSW 2016), could inadvertently support a more prescriptive safety culture where the focus is on demonstrating that a risk level is acceptable rather than on continuous improvement. Thus, the legal preference for SFAIRP in Australia not only reflects a specific legal standard but also encourages a more mature and effective approach to safety. If it is accepted that ALARP is subordinated by SFAIRP, where then does the principle ALARA, as featured in Queensland mining legislation, reside?
4.1.5. ALARA (as Low as Reasonably Achievable)
Mirrored in Queensland’s mining statutes, the following “two-tiered” (DNRM 2013) test is expressed (emphasis added):
Division 1: Control and management of risk
29 What is an acceptable level of risk (CMSHA)/26 What is an acceptable level of risk (MQSHA)
(1) For risk to a person from coal mining/mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is—
- (a)
- within acceptable limits; and
- (b)
- as low as reasonably achievable.
(2) To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to—
- (a)
- the likelihood of injury or illness to a person arising out of the risk; and
- (b)
- the severity of the injury or illness.
For risk to a person from mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is—(a) within acceptable limits; and (b) as low as reasonably achievable. ‘Within acceptable limits’ and ‘low as reasonably achievable’ must have regard to (a) the likelihood of injury or illness to a person arising out of the risk; and (b) the severity of the injury or illness 9 (CMSGA, s29 and s26 MQSHA).
The two subsequent provisions immediately preceding the above stipulate in the respective statutes ask, “How is an acceptable level of risk achieved?” and “What happens if the level of risk is unacceptable?” (see Construction, Forestry, Mining & Energy Union v State of Queensland & Anor [2004]). The approach in this mining sector in Queensland suggests that if a mine becomes too dangerous, everyone must be moved to safety immediately. Then, steps must be taken to fix the danger (MBR v Parker [2012]). These Acts stipulate that for risk to be at an acceptable level, operations must be carried out so that the level of risk is not only “within acceptable limits” but also ALARA (MBR v Parker [2012]). This distinct legislative model suggests a greater prescriptive regulatory focus than SFAIRP.
The principle ALARA suggests a stronger emphasis on the continuous optimisation of controls to reduce exposure, even if levels are already below regulatory limits. It is argued that “achievable/acceptable” connotes broader socio-political and economic factors more explicitly than the strict cost–benefit analysis often associated with SFAIRP/ALARP. This might explain why Queensland has opted for standalone Acts and a separate mining coroner (see below). It is still not clear, however, why the legislature has adopted a test definitionally different from RP; however, it is worth noting that the narrative in the mining explanatory memoranda suggests a socio-political motive in light of the Moura disasters.
Curiously, ALARA is a principle predominantly applied in the field of radiation protection (ARPANSA 2005). Its core tenet is to keep exposure to ionising radiation as low as reasonably achievable, social and economic factors being considered (ARPANSA 2008). To place it into context, this means avoiding any radiation exposure that does not provide a direct benefit, even if the dose is small (DCCEEAW 1999). The practical application of ALARA in radiation safety or radiological protection often emphasises three basic protective measures: minimising the time spent near a radiation source, maximising the distance from the source, and using the appropriate shielding (ARPANSA 2008). It, therefore, might be arguable that the term “achievable” in ALARA implies a stronger imperative to reduce risks to the lowest possible levels, particularly where there may be no absolutely safe threshold of exposure (DCCEEAW 1999). This is the case with ionising radiation, and where societal expectations for protection are high (see the Radiation Safety Act 1999). This approach is also consistent with reasoning in BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] in circumstances where mining operations must cease pursuant to ALARA.
This threshold differs from the “practicable” in SFAIRP/ALARP, which more explicitly balances the risk against the practicality (including cost) of the controls. Conceptually, “reasonably achievable” might share common ground with “reasonably practicable”. The notion of “achievable” could inherently imply feasibility and what is “reasonably able to be done”, which is a core component of the definition of “reasonably practicable”. But there is no authority for this. Outside the specific ALARA context for radiation protection, the phrase “reasonably achievable” appears much less frequently as a standalone, formally defined legal standard for general health and safety duties when compared to SFAIRP or RP (see Table 6). The prominence of ALARA in Queensland does, however, illustrate an important point: specific high-consequence or uniquely complex hazard mining arenas have been deliberately designed by the legislature to be distinguishable, but without substantive justification (see Minerals Industry Safety and Health Centre 2019 below).
It may be that this distinct WHS standard implies a strong emphasis on achieving the lowest possible risk level that technology and current practices can achieve, informed more by achievability than practicability in the mining setting, although the practical distinction in a legal setting might often be nuanced (McDonald v Bell [2020]). This statutory choice in Queensland may also reflect a desire to underscore the imperative for continuous improvement and the adoption of the best available control measures in its high-hazard mining sectors. Irrespective of what the rationale has created, an opportunity for divergence and doubt in legal arguments about what is an adequate SFAIRP or ALARA compared to other mining jurisdictions in Australia has been created.
4.1.6. Comparative Analysis of Principles and Statutory Implications
These different principles are summarised as follows:
- SFAIRP: Serves as the broad, legally binding standard applicable across all workplaces and all types of hazards covered by general health and safety legislation in Australia, except Queensland mining (R v Associated Octel Limited [1994]; Slivak v Lurgi (Australia) Pty Ltd [2001]).
- ALARP: Provides an operational interpretation and methodology in discrete limited subordinate legislation where complex risks often require quantitative assessment and demonstration that risks are controlled to a tolerable level. It does not substitute the SFAIRP duty for broad practical risk management decisions because it only applies to specific contexts (Viva Energy Australia [2021])
- ALARA: Provides a specialised framework for optimising protection by balancing risks and benefits and is a feature of Queensland mining (CFMEU v State of Qld and Anglo Coal [2005]).
Across Australia, SFAIRP provides a universal baseline for the duty to manage WHS risks in the mining industry, stemming from its inclusion in the model WHS laws and Victoria’s OHS Act. This means persons at mine operations are fundamentally required to identify risks and do what is RP to eliminate or minimise them. Queensland’s legislative framework is notable for its definition of an acceptable level of risk, which mandates that risks must be within ALARA. This arguably makes the ALARA principle applicable to all mining risks as a more encompassing requirement than in other mining jurisdictions. The practical difference between Queensland’s approach and the SFAIRP standard could lead to different regulatory expectations or enforcement expectations, particularly in situations where a risk is already deemed within “acceptable limits” but has not necessarily been reduced to the lowest level technically and operationally achievable without significant further investment or effort (Anglo Coal (Moranbah North Management) Pty Ltd v Stone [2025]). Furthermore, SFAIRP explicitly allows cost to be considered if it is “grossly disproportionate” to the risk reduction, whereas the “achievable” component in Queensland’s standard might place a stronger emphasis on pursuing further risk reduction if feasible, potentially with a different weighting of the cost factor.
It seems ALARA involves managing exposures below limits, considering factors like technology and economics explicitly within its framework. Crucially, the interpretation of reasonably achievable may differ from RP, because the gross disproportion test central to SFAIRP may not apply or may be applied differently in ALARA.
Furthermore, ALARA may have developed within the specialised scientific and regulatory field of radiation protection (Bryant et al. 2018), but is expressly stated in mining laws in Queensland and displaces SFAIRP in that jurisdiction. This divergence creates potential for confusion and underscores the tension between a single legal principle and its application across diverse risk contexts. The ALARA principle, while sharing the concept of reasonableness, is distinctly shaped by its specific characteristics. The acceptance that there is no safe threshold and to minimise regulatory limits of risk wherever reasonably achievable contrasts with many conventional safety risks, where clear thresholds for harm might exist. It involves a specific type of balancing; that is, optimising protection by weighing efforts against economic, social and technological factors (BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024]); thereby making it more politico-legal in nature.
Despite the fact that Hall P (as he then was) said ALARA and SFAIRP are analogous in Newman v TJV Electrical Pty Ltd [2011] (overturned), it is stressed that the principles have distinct origins and nuances (Bryant et al. 2018). Having regard to the Coal Mining Safety and Health Bill 1999 Explanatory Notes, it seems the adoption of the absolute obligation “acceptable level of risk” principle was driven by a political and industrial desire to establish a unique test for a high-hazard industry due to multiple catastrophic failures in Queensland, including the Moura disasters (2). The Bill presents a clear performance-based framework because it requires that all coal mining operations be carried out so that the level of risk of injury or illness is “both acceptable and at a minimum” (14). An acceptable level of risk is explicitly defined as a measurement of both the “likelihood and severity of injury or illness” (14). In the “Consistency with Fundamental Legislative Principles”, it suggests adopting an “acceptable level of risk” and (3) creates a higher bar than SFAIRP, shifting the focus from the operator’s decision-making process to the actual safety outcome for workers.
This principle places the obligation squarely on the mine operator to proactively establish and maintain a safe system. The person/operator must manage risk to an acceptable level; it is not a defence to simply argue that it was not reasonably practicable to do so. This is reinforced at pp 5–6 of the note by the removal of sections 23 and 24 of the Criminal Code, which disallows excuses of “mistake of fact” or “accident” and instead requires a defendant to prove that the offence was due to causes beyond their control (Anglo Coal (Moranbah North Management) Pty Ltd v Stone [2025]). The term “reasonably practicable” is avoided in the mining Acts for risk management purposes (despite the fact that ALARP is in the regulations). This unique lego-political structure demonstrates that the primary intent was to use the absolute benchmark of acceptable level of risk to ALARA (Anglo Coal [2025]: [86]).
Indeed, Hall’s observation above is rare in the case law and is not supported by an independent expert assessment conducted by the University of Queensland with regard to the intrinsic adequacy of the legal framework governing mining and quarrying safety and health in Queensland (Minerals Industry Safety and Health Centre 2019, 4). The report supports the argument here that ALARA and SFAIRP represent different risk management standards that should not be used interchangeably. The authors criticise the specific mining laws because the concept of an “acceptable level of risk” as being both within acceptable limits and ALARA is not adequately explained and lacks particularity or clarity. The report observes it is hard to imagine a situation where a risk is ALARA but not also “within acceptable limits”, making part of the definition inadequate. Contrast this with the Model Law, where RP is defined. Such ambiguity creates a narrow scope, making it difficult for persons, operators/employers to know what standard they must meet and leading to inconsistent safety management (Minerals Industry Safety and Health Centre 2019, 12). Furthermore, many stakeholders are from a SFAIRP background and are not clear about what this legal concept means (Minerals Industry Safety and Health Centre 2019, 9). Accordingly, the term ALARA is not an established common law concept, which makes its interpretation and enforcement unprecedented and inconsistent.
The report strongly recommends replacing the “acceptable level of risk” framework with the RP standard used in the WHSA because not only does the latter contain definitional consistency, a significant body of case law exists, and importantly, it would ensure greater harmonisation. This would assuage corporations of any legal certainty, at least in terms of what risk management principles to adopt. While there may be some confluence in the respective legal tests, ALARA is silent on practicable precautions. In the absence of what is practicable (see ss17 and 18 of the WHSa), the obligation becomes “absolute” (Anglo Coal v Stone [2025]). This suggests a significantly higher and more stringent legal duty for PCBUs/employers and their officers.
This distinction is problematic because while national harmonisation has provided a common set of core WHS principles, the regulation of mining safety remains subject to considerable jurisdictional variation, tailored to local conditions, industry scale and historical legislative paths. The uniqueness of a jurisdiction’s mining law compared to the general should be scrutinised when considering the most serious crimes. This is discussed below.
4.2. Implications for Duty (Obligations) Holders for the Most Serious Industrial Crime
Industrial Manslaughter in Mining Legislation
From 2017 to 20249, IM offences were enacted in a piecemeal manner across all Australian jurisdictions in relation to all business activities and undertakings.10 As set out in Table 4, these laws impose severe penalties, including substantial fines for corporations and lengthy terms of imprisonment for individuals, particularly targeting officers.
Table 4 highlights the lack of national uniformity in mining WHS regulation and presents several significant challenges for persons who may be liable for an indictable offence. It is posited that the significant variations in WHS duties, enforcement approaches, and the definitions and penalties for serious offences, such as IM, make it challenging for investors to uniformly assess potential legal liabilities and governance risks across a portfolio of assets located in different states.
In particular, Table 4 highlights several concerning inconsistencies. First, a person in all jurisdictions (including under the Queensland WHS Act 2011) charged with IM but not found guilty of that offence may alternatively be convicted of a Category 1, 2 or 3 offence (depending on the jurisdiction), except under Queensland mining laws. There is no explanation for the significant difference, but it may be due to the fact that these discrete mining laws specify that a contravention must set out a circumstance of aggravation attached to it (e.g., multiple deaths, death, grievous bodily harm, bodily harm or simply an exposure simplifier).
Secondly, the variations in the required fault element represent a critical differentiator across jurisdictions. Proving gross negligence—a standard implying a significant deviation from the expected standard of care and a high risk of death or serious injury generally presents a higher evidentiary bar for prosecutors than proving negligence (failure to meet a reasonable standard of care) or recklessness (conscious disregard of a substantial and unjustifiable risk) (see Hall and Johnstone 2005). This difference might significantly influence the likelihood of prosecution and conviction for IM based on the same factual circumstances in different states or territories. For instance, conduct deemed negligent might lead to an IM charge in Victoria or Queensland, whereas in NSW or SA, prosecutors would need to establish the higher threshold of gross negligence (or recklessness in SA). This disparity suggests that demonstrating an adequate legal risk assessment to discharge a duty and defence strategies for mining companies operating nationally may differ. To further deviate from consistency, Queensland directs liability at senior officers.
The third significant finding concerns punishment, and the differences in Table 4 are self-evident. In the context of imputed conduct, which may attribute liability to a corporation due to the actions of another, these variations are concerning.
4.3. Significant Points of Distinction
4.3.1. The Applicable Legal Duty
The Queensland mining Acts (and Queensland and Tasmanian WHS Acts) do not make it clear as to what legal duty or duties are to be applied to a defendant when charged with IM. This is in stark contrast with the approach taken in almost all Australian jurisdictions, which require proof of a breach of an identified health and safety duty as an element of IM. As such, Queensland and Tasmania are the only jurisdictions not to have a breach of a health and safety duty (as defined in the WHS Act) as an element of the offence of IM. The absence of an identified legal duty is problematic as IM offences require proof of negligence by the wrongdoer (Ipp et al. 2002). Negligence can only be determined by assessing whether there has been a failure to comply with a specified legal duty (Johnstone 2023). It is not clear how a trial judge could direct a jury as to the elements of the offence of IM when the legislature did not make a breach of an identifiable duty an element of the offence. Perhaps a court could decide that a breach of a statutory health and safety duty is impliedly an element of the offence of IM where the legislature has chosen not to make this explicit. This, however, is not an issue in other jurisdictions (see Table 4).
The problem is compounded by the fact that the two mining Acts contain a number of different health and safety duties, some of which are highly specific to a particular position, such as the senior site executive. Other duties are limited to being physically at a mine at the mine. The lack of detail also leaves open the possibility that some other legal duties are found outside the Acts; for example, in the Queensland Criminal Code, to theoretically underpin a charge of IM (Evgeniou v. The Queen (1964), 37 ALJR 5; R v. Scarth [1945], St R Qd 38). It is arguable that the offences, as they now stand, are legally defective, considering the lack of particularity compared to the rest of Australia.
4.3.2. Officer and Who Is a Senior Officer?
In Queensland, the Acts impose liability only for the crime of IM to a senior officer or executive officer (e.g., see the definition in Part 3 s48, CMSHA). An executive officer is a senior officer in a corporation (refer to s9AD of the Corporations Act 2001). This category of defendant is not found elsewhere in Australia. In all other Australian jurisdictions, apart from Victoria, liability for IM is limited to officers and the PCBU. In Victoria, all duty holders are potentially liable, except workers, under s25 of the Occupational Health and Safety Act. It is unclear why Queensland has only followed this path. Logically, the legislature must be taken as wanting to create a class of defendants who exercise powers beyond those of an officer, but no other jurisdiction conforms to this approach. This seems incongruous with the rest of Australia, where “senior” is not a feature of IM. It is likely that the use of these terms places a heavy burden on the prosecution to establish that a defendant is a senior officer.
It will be a matter of evidence as to whether an individual can be said to be a senior officer. A person acting as the senior site for a small company that has its working capital invested in one mine could well satisfy the test for an officer set out above and, thus, be arguably found to be a senior officer. Conversely, someone else doing the same job with the same level of responsibility for a much larger company may not. Further, it is unclear to what extent the duties of an officer with respect to exercising due diligence will determine the ambit of potential liability for a senior officer charged with IM because the due diligence provisions, e.g., at s47 CMSHA, relate to officers specifically.
4.3.3. Criminal Negligence or Recklessness?
Both mining Acts require proof of negligence on the part of a defendant, and the negligent conduct (the acts or omissions of the defendant) must be a substantial cause of the death. Unlike some other jurisdictions (e.g., Victoria), the CMSHA and the MQSHA do not contain statutory definitions of negligence.
Negligence in Queensland is understood as a failure to comply with a legal duty, and that failure is of such a magnitude that it warrants punishment by the state (R v Lavender (2005) 222 CLR 67). It does not require a high risk of death, serious injury or serious illness, as required in Victoria (Occupational Health and Safety Act, s39E). Negligence in Queensland does not require knowledge that the conduct is likely to cause the death of or serious harm to an individual, as required in WA. Unlike the offence of IM, there is no alternate basis of liability of recklessness available. Liability for IM in Queensland is thus limited to a narrow basis, markedly different from the majority of other Australian jurisdictions. The prosecution must prove criminal negligence and cannot rely upon any other basis of liability, such as recklessness.
The core of WHS law is the proactive management of risks, assessing whether a duty holder has met their obligations. A failure to meet these standards without reasonable excuse can form the basis of the “breach of duty” with regard to the IM charge. To that end, prosecutors would scrutinise whether the PCBU or (senior) officer took all reasonably practicable steps to ensure the safety of the deceased. In practical terms, if an argument against implementation due to cost is raised, the evidence would need to demonstrate that the cost is not just disproportionate but prohibitive to the continuation of the enterprise or activity.
To establish that the impugned conduct was negligent, or in some cases grossly negligent, it is necessary to demonstrate a breach of a legal duty. This involves questions of both fact and law. If negligence is to be viewed as a significant departure from the standard of care that a reasonable person would exercise, which results in serious disregard for the safety of others, then adding the adjective gross suggests a significant departure with an extreme degree of carelessness by demonstrating an inexcusable disregard for the lives and safety of others. It extends the element of failure to meet a reasonable standard of care. It elevates the idea of flagrant disregard for the potential consequences (R v Brisbane Auto Recycling Pty Ltd). But for negligence to be a feature of the conduct engaged, a person may not have intended to cause harm, despite carelessness (Callaghan v The Queen (1952)). For gross negligence, the person’s actions would need to be so reckless, along with a manifestation of disregard for human life, and to a degree much higher than negligence (see Patel v The Queen 2012).
Even without a death, reckless conduct that exposes a person to a risk of death or serious injury is a Category 1 offence under Model WHS laws, carrying substantial penalties (but not in Queensland mining laws). Recklessness generally involves being aware of a substantial risk and proceeding anyway, or a conscious disregard for safety. Along with IM, it is one of the two indictable offences under the Model Act. However, the conduct is not criminal if there is a “reasonable excuse” for the act or omission (R v Lavin 2019, QCA 109). Consider a high-risk work environment where a worker falls from a height of six metres and dies. According to Lavin (2019), under s31, the issue is not whether the erection of the railing is “reasonably practicable” but whether the failure was the omission to erect railing, if there was a “reasonable excuse” in making that omission (see R v Sam (No 17) [2009], NSWSC 803). That is:
The jury may have been satisfied that the erection of the railing was a “reasonably practicable” step to take. However, the appellant had directed that workers on the roof were to use harnesses if working near the edge. He also directed that the scissor lifts be positioned in such a way as to constitute a barrier. The real question was, having given those directions and, in the context of any other relevant evidence in the case, whether he had a “reasonable excuse” for not causing Multi-Run to erect the railing (Lavin 2019, [14]).
In terms of IM, from an evidentiary perspective, the distinction between ALARA and SFAIRP may become critical when considering serious crimes. The above case scenario presents an interesting dilemma in a mining setting concerning IM. Under the SFAIRP standard in NSW, the employer of a mine operator might argue that the cost of edge protection and scaffolding might be (cost) grossly disproportionate to the risk reduction where harnesses are appropriate. However, under Queensland’s ALARA standard, a prosecutor could argue that because the physical barriers are achievable, the employer was obligated to adopt them to drive the risk to the lowest possible level, with the cost being a secondary consideration. In the absence of a reasonable excuse, it is arguable that if ALARA is applied as a distinct standard from SFAIRP in a mining operation, particularly where it might be interpreted more stringently than the grossly disproportionate test of SFAIRP, complications can arise in a criminal prosecution. If a mining company asserts it was following an ALARA standard for a particular hazard (e.g., radiation, or even dust if they apply ALARA broadly), a prosecutor might argue that ALARA implies a more aggressive pursuit of risk reduction than the SFAIRP grossly disproportionate test. In a criminal trial for IM, the prosecution could contend that the defendant failed to achieve ALARA without a reasonable excuse, even if they met the SFAIRP standard. This could place a heavier burden on the defence to show that every conceivable effort was made, even if the cost–benefit analysis under SFAIRP might have allowed for a lesser degree of control. Thus, in ALARA, “achievable” might be interpreted as requiring absolute elimination or reduction to the lowest possible level, irrespective of a “grossly disproportionate” cost test, pushing duty holders to invest more than what might be strictly “reasonably practicable” under SFAIRP for other hazards.
Prosecutors could argue that if a higher ALARA standard was internally adopted for some risks, it implies that higher levels of control were known to be achievable and, therefore, reasonably practicable for other, perhaps similar, risks, even if SFAIRP might not strictly demand it. This could be used to establish a breach of duty.
To prove IM, the prosecution needs to demonstrate that the defendant was aware of a substantial risk and unjustifiably proceeded. If a company’s internal documents or safety culture demonstrate a commitment to ALARA, but an incident occurs where a risk was not reduced to the “achievable” level, it could be used as evidence that the company knew more could be done and thus, consciously disregarded that knowledge, thereby establishing recklessness. The discrepancy between the declared ALARA standard and actual practice could be highly incriminating. Officers have a duty of due diligence to ensure the PCBU complies with its WHS duties. If there are conflicting or confusing risk management standards within the organisation, it becomes harder for officers to demonstrate they exercised due diligence in ensuring that “reasonably practicable” measures were implemented consistently across the board.
In a complex mining case, expert witnesses (e.g., safety engineers, ergonomists, radiation specialists, etc.) would be called upon to testify on what RP was. If some experts are more accustomed to an ALARA framework and others to SFAIRP/ALARP, their testimonies could differ, potentially creating an element of doubt in proceedings. For IM based on negligence, the court assesses whether the defendant’s conduct fell short of the standard of care that a reasonable person would exercise. If a company, by applying ALARA in some areas, implicitly sets a higher internal standard for risk reduction, then failing to meet that higher standard in an area where an incident occurs could be presented as evidence of negligence.
Consider a foreign company that runs a Victorian mine where general dust control for respirable crystalline silica (RCS) is managed under SFAIRP. If a worker dies from silicosis, and the prosecution presents an indictment for IM, the defendant could present evidence of SFAIRP compliance for RCS. However, in Queensland, the prosecution must point to the ALARA standard, arguing that the company demonstrates an understanding of how to aggressively reduce exposure to ALARA. A question arises as to why rigorous efforts pursuant to ALARA were not applied to RCS, where SFAIRP is the test, especially given the known severity of silicosis. This could suggest that a company must know that more can be done for RCS but chooses not to, potentially establishing negligence or recklessness. This scenario supports the conclusions reached in the Minerals Industry Safety and Health Centre Report (2019).
While SFAIRP is the prevailing legal test for WHS duties in Australia, including for serious offences, the presence of a distinct ALARA standard (or its interpretation) can introduce significant legal inconsistencies. The core risk lies in creating a two-tiered standard across Australia, which prosecutors could then use to argue that a similar level of diligence and risk reduction was RP across all operations, potentially demonstrating negligence or recklessness when it was not achieved. This case scenario suggests a failure to implement risk controls that were achievable (the ALARA standard), even if costly (but not so costly as to be grossly disproportionate under SFAIRP), and could more readily be framed as a negligent or reckless disregard for safety.
4.3.4. Corporate Culture and Liability
There are significant differences among the jurisdictions as to how a corporate defendant can be found liable for IM. Unlike other jurisdictions, e.g., NSW and NT, there is no reference in the Queensland legislation to the concept of “corporate culture”; that is, evidence of the corporate defendant’s policies, rules, attitudes and course of conduct. Thus, a pattern of ignoring SFAIRP in a jurisdiction where these risk management principles apply across various aspects of operations can demonstrate a culture of indifference or negligence towards safety at a corporate level. This could include a lack of, or inadequate risk assessments, failure to implement identified control measures, insufficient resources allocated to safety, inadequate training and supervision and ignoring warnings or past near-misses (Jensen 2001). The Queensland mining laws do not have a counterpart to s244BA of the NSW WHS Act, setting out the basis upon which a company can be found guilty of criminal negligence. The Acts merely contain a provision allowing the acts of an officer, employee or agent to be imputed to the corporate defendant when done within the actual or apparent scope of the representative’s authority, i.e., “Responsibility for acts or omissions of representatives” (see CMSHA s261, MQSHA s240). Therefore, an act done or omission made by the representative within the scope of the representative’s actual or apparent authority is to be taken to have been done by the corporate defendant unless the corporate defendant can prove that they could not, by the exercise of reasonable precaution and proper diligence, have prevented the act or omission (McDonald v Bell [2020]; Betts v Whittingslowe (1945)). However, this formulation does not make the corporate defendant vicariously liable for the actions of its representatives. Rather, it makes the representatives’ actions the actions of the corporate defendant. It would then be up to the prosecution to establish liability. This provision is the only guidance given in the Queensland Acts as to how a corporate defendant may be liable for IM.
A corporate defendant could avoid liability if it can prove that it could not, by the exercise of reasonable precaution and proper diligence, have prevented the act or omission. Queensland’s CMSHA and MQSHA require that risks to safety and health must be managed to an acceptable level so that the risks are controlled within acceptable limits. When an act or omission by a representative thus leads to a potential breach of mining safety laws, and that act is imputed to the corporate defendant under CMSHA s261 or MQSHA s240, the prosecution would need to establish that the representative’s act or omission occurred and that it constituted a breach of a safety and health obligation, leading to an unacceptable level of risk. The corporate defendant would then need to prove, on the balance of probabilities, that it had taken all reasonable precautions and exercised proper diligence to prevent that specific act or omission. Essentially, if the corporation can show that its systems and practices were designed to reduce the risk of such an incident to a level that was as low as reasonably achievable, it stands a strong chance of satisfying the reasonable precaution and proper diligence test. As the ALARA test is not a separate explicit test, the principles of ALARA are intrinsically linked to the concept of an acceptable level of risk and are fundamental to demonstrating the reasonable precaution and proper diligence required for a corporate defendant to absolve itself of liability under CMSHA s261 and MQSHA s240 when a representative’s actions are imputed to it.
The issues of the reasonableness of the measures and whether due diligence had been exercised should be considered in the light of what was known before the imputed conduct took place. The Queensland legislation makes no provision for evidence of corporate culture to be adduced by the prosecution. In the absence of a statutory basis for corporate culture, it is not apparent how such evidence could be admitted to determine if a safety measure is achievable and will reduce risk. For example, a person omitting to ensure a subcontractor provides and maintains SFAIRP safe systems of work could be considered criminally negligent if that lack of a safe system causes a worker’s death. The principle of ALARA offers a risk management philosophy with a different focus in that it emphasises the attainment of a goal based on the likelihood of success. It is suggested that something can be reasonably achievable as a goal, but the measures to get there might not be reasonably practicable, thereby placing a more stringent onus on Queensland miners.
Queensland’s decision to enact distinct IM provisions for its significant mining and resources sector, including unique requirements such as mandating direct employment for critical safety roles, highlights a tailored legislative response to the particular risks and operational structures of this industry. In industries like mining, where hazards are complex and consequences can be severe, a deeply embedded safety culture that reflects an ALARA-focused pursuit of the lowest achievable risk is a critical defence against the conditions that can lead to IM. This is contended to be more onerous than elsewhere in Australia.
The law regarding IM in the mining industry differs significantly in Australian jurisdictions. There have been no decided cases of IM under the Queensland mining legislation to assess the extent of deviation and applicability of risk management principles. The concept of recklessness has no part to play in Queensland mining, yet negligence and recklessness are separate and distinct modes of liability elsewhere in Australia (and Queensland’s WHSA). A defendant’s conduct may be negligent but not reckless; conversely, conduct may be reckless but will not amount to recklessness. In other words, a defendant charged with IM at a Queensland mine, where the prosecution case relies upon reckless conduct, may not be culpable, whereas a defendant in the Northern Territory may be culpable for the same conduct.
5. Conclusions and Recommendations
The Australian mining industry plays a significant role in the national economy and is pivotal in the global resources market. The regulatory landscape for work health and safety in the Australian mining industry is complex, characterised by distinct state and territory laws. The fragmented nature of mining WHS regulation in Australia represents a tangible business risk that must be factored into investment analysis and due diligence. Understanding the specific duties, enforcement patterns for IM laws in relevant states is especially critical for assessing potential legal liabilities that carry significant penalties. This article has examined the divergence in health and safety laws applicable to the Australian mining industry. The overall finding is that a clear grasp of the inconsistencies of these laws is essential for ensuring compliance and effectively managing risks to the requisite standard to avoid prosecution.
As the data in the tables provide, fault elements and penalties for serious crimes vary in mining jurisdictions under a broader Model WHS jurisdictional rubric. Furthermore, Queensland possesses explicitly different laws. Its mining Acts are notable for defining an acceptable level of risk to include the requirement that risks be managed ALARA broadly across mining hazards. However, the principle of SFAIRP is the dominant risk control standard that underpins the primary duty of care in the other Australian jurisdictions. The term ALARP is not a feature in the Australian context, other than a limited focus in subordinated legislation (regulations). This makes SFAIRP the governing principle for WHS risk, including mining safety. It is open to interpretation as to whether other tests are equivalent to the common understanding of reducing risks SFAIRP.
But ALARA has independent statutory standing that is not aligned with SFAIRP. It is a specific legal term enshrined in Queensland mining statutes and not in other mining jurisdictions. Care should be taken not to conflate ALARA and SFAIRP. Conflating the two by assuming any ALARA assessment automatically meets the SFAIRP principle would ignore specific interpretation and expectation. Queensland’s mining legislation takes a unique approach by integrating the ALARA principle directly into its overarching definition of an “acceptable level of risk” for all mining hazards. This broad application of ALARA as a fundamental component of the primary safety duty for all mining operations potentially sets a more stringent, or at least differently articulated, standard for risk control compared to the SFAIRP principle. It implies a stronger emphasis than SFAIRP on continuous improvement and driving risks down to the lowest levels that are technically and operationally feasible, even if they are already within broadly acceptable parameters.
The sheer scale of mining as Australia’s largest national economic concern warrants greater WHS consistency. But the reality is that Queensland continues to divest from a harmonised industry approach. The June 2025 Coroners (Mining and Resources Coroner) Amendment Bill 2025 aims to establish a dedicated mining and resources coroner to investigate and conduct mandatory inquests for all mining-related reportable deaths. Much like the political response to the Dreamworld deaths in 2016, when IM provisions were rushed into Parliament (and before the findings of the Boland Model recommendations were handed down), this Bill appears to be a reaction to family forum concerns. That is “the government has listened to the voices of families who have suffered the loss of loved ones in our state’s mines and quarries” (Queensland Hansard Record of Proceedings Hon 2025, 1730).
This development is a further deviation from notions of harmonisation by establishing a more specialised mining and resources fatalities arena compared to general coronial processes elsewhere. This affirms Queensland’s unique position and suggests Queensland continues to deviate toward a more specialised system for mining and resources regulation compared to a harmonised approach. This is extraordinary, considering that inquests are effective at broadly identifying systemic failures, regulatory gaps or industry-wide issues that contribute to fatalities.
In the premises, a call for harmonisation to be led by SWA in conjunction with regulators should be considered. This could be initiated with a specific review of the existing laws for national consistency across the mining sector, with a focus on core risk management principles. In the alternative, guidance could be created for mining corporations to understand the requirements across all jurisdictions in their national safety management systems. For instance, mining regulators in conjunction with SWA could create jurisdictional matrices to assist corporations in navigating these distinct differences in order to adopt the ALARA principle for risk management, where required, or appreciate that negligence as a fault element for IM is not specific to all jurisdictions. Additionally, the development of model jury directions or sentencing guidelines for IM and reckless offences to promote more consistent application across jurisdictions would greatly assist stakeholders.
Effective WHS compliance in Australian mining necessitates a nuanced understanding of the specific legislative requirements in each state or territory of operation. Relying solely on the model WHS law is insufficient. Prioritising the identification of the relevant test based on regulatory focus and appreciating the severity of failures should be observed. As the different laws under harmonisation contain varied imputed provisions, the prevalence of contractors and associated risks with procurement will also require the implementation of rigorous processes for contractor selection. Such engagement may require monitoring and verification of compliance with site and jurisdictional WHS standards. Jurisdictional diligence is, therefore, crucial.
Author Contributions
Conceptualization, T.C. and N.W., methodology, T.C.; software, T.C.; validation, T.C. and N.W.; formal analysis, T.C. and N.W.; investigation, T.C. and N.W.; resources, T.C.; data curation, T.C.; writing—original draft preparation, T.C. and N.W.; writing—review and editing, T.C. and N.W.; visualization, T.C.; project administration, T.C. All authors have read and agreed to the published version of the manuscript.
Funding
This research received no external funding.
Institutional Review Board Statement
Not applicable.
Informed Consent Statement
Not applicable.
Data Availability Statement
No new data sets created. All data publicly available via respective Australia state and territory parliamentary websites and/or https://www.safeworkaustralia.gov.au/law-and-regulation/whs-regulators-and-workers-compensation-authorities-contact-information, accessed on 10 July 2025.
Conflicts of Interest
The authors declare no conflict of interest.
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| 1 | As the Australian Cth government is not responsible for mining legislation, the WHS Act (Cth) is not discussed in this article. |
| 2 | In Queensland, for example, the now repealed Workplace Health and Safety Act 1995 (Old) (as in force 6 June 2011) expressly stated at s3 that the Act did not apply to mining, petroleum or gas operations. |
| 3 | These two terms are used jointly and severally across the landscape. |
| 4 | Recall, WA, Australia’s largest miner had only recently adopted the WHS Act framework (Worksafe WA 2022). |
| 5 | The term “employer” is used in Victoria, and in Queensland mining legislation (it includes operator), notwithstanding the fact that PCBU is used in Queensland’s WHS Act 2011. |
| 6 | In WA, the most recent harmonised state, its WHS Act 2020 acknowledges the use of “accident or other incident” (and “occurrence”) under the previous statutes for transitional purposes (at s377). |
| 7 | Health and Safety at Work Act 1974 (HSWA). |
| 8 | As set out in Hughes and Hessey (2005) 180, “There is no justification for the granting of such indulgence to small and struggling businesses as to undermine the incentive to comply with the obligations imposed by the Act…Observance of the statutory obligations may require the doing of more than is reasonable and the expenditure of more than is reasonable” (per Hall, P (2005) 180 QGIG at 925). |
| 9 | There have been few IM prosecutions in Australia, see R v Jeffrey Owen [2022] QDCSR 168, R v Narellan Pools Pty Ltd (14 June 2024—Brisbane District Court, unpublished) and in Victoria (see R v LM Holding & Hanna [2024], VSC 90). |
| 10 | Interestingly, Queensland’s WHS Act 2011 predated national recommendations pursuant to the Boland review (Boland 2018). It was the first harmonised Act to adopt IM laws, but mining laws were not amended until 2020, pursuant to the Mineral and Energy Resources and Other Legislation Amendment Act 2020, thereby demonstrating a disconnected parallel regulatory process, even for the most serious industrial crime. In Queensland, both CMSHA Part 3A, ss 48A-48D and the MQSHA Part 3A, ss 45A-45D contain the offence of IM. The Criminal Code, s23 (independent of will) does not apply in relation to an offence against IM (Davis J in Anglo Coal (2025) provides an analysis of an act or omission in the context of criminal responsibility). |
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Cvetkovski, T.; Weston, N. Mining Work Health, Safety Laws and Serious Industrial Crimes in Australia: Down the Shaft of Jurisdictional Inconsistency. Laws 2025, 14, 49. https://doi.org/10.3390/laws14040049
AMA Style
Cvetkovski T, Weston N. Mining Work Health, Safety Laws and Serious Industrial Crimes in Australia: Down the Shaft of Jurisdictional Inconsistency. Laws. 2025; 14(4):49. https://doi.org/10.3390/laws14040049
Chicago/Turabian StyleCvetkovski, Trajce, and Neville Weston. 2025. "Mining Work Health, Safety Laws and Serious Industrial Crimes in Australia: Down the Shaft of Jurisdictional Inconsistency" Laws 14, no. 4: 49. https://doi.org/10.3390/laws14040049
APA StyleCvetkovski, T., & Weston, N. (2025). Mining Work Health, Safety Laws and Serious Industrial Crimes in Australia: Down the Shaft of Jurisdictional Inconsistency. Laws, 14(4), 49. https://doi.org/10.3390/laws14040049
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