WHS Harmonisation in Australia: Why It Matters and What’s Still Broken

The promise of harmonised work health and safety laws across Australia was simple: same protections for all workers, consistent standards for all businesses, and streamlined compliance for organisations operating across multiple jurisdictions. More than a decade after the model WHS laws were introduced in 2012, that promise is eroding.

Safe Work Australia’s Best Practice Review Discussion Paper, published in September 2025, lays bare a confronting reality. Despite the initial commitment by all jurisdictions to maintain national consistency, jurisdictional variations have multiplied to the point where harmonisation objectives are being actively undermined.

For WHS professionals, PCBUs, and safety managers working across state lines, this fragmentation creates confusion, increases compliance burden, and in some cases, results in workers having different rights depending on their postcode.

What is WHS Harmonisation and Why Does It Matter?

WHS harmonisation refers to the adoption of nationally consistent work health and safety legislation across Australian states and territories. Before 2012, each jurisdiction had its own occupational health and safety laws, creating a complex patchwork of requirements that varied significantly across borders.

The Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) signed in 2008 set out the principles for achieving national consistency. The model WHS Act, model WHS Regulations, and 27 model Codes of Practice were developed to provide a unified framework.

Between January 2012 and March 2022, all jurisdictions except Victoria adopted the model WHS laws. Western Australia was the last to come on board when its WHS Act commenced on 31 March 2022.

The Original Benefits of Harmonisation

Evidence shows that harmonisation delivered tangible benefits when implemented properly. A 2021 study found that harmonisation resulted in a 0.9 percentage point reduction in workers’ compensation claims in harmonised states, with even stronger effects in the construction industry.

For businesses, the advantages were clear. A 2015 survey of chief WHS officers in 37 large companies found that organisations experienced reduced regulatory impact, fewer injuries, and improved safety systems following adoption of harmonised laws.

The objectives under the IGA included establishing uniform safety standards, reducing compliance impacts for multi-jurisdictional businesses, improving regulatory consistency, and most importantly, reducing workplace deaths, injuries and disease.

How the System Has Fractured: Key Areas of Divergence

The erosion of harmonisation has been gradual but significant. A range of factors have contributed to the emergence of jurisdictional variations that extend beyond what was necessary to accommodate local legislative frameworks.

Industrial Manslaughter Laws: Eight Different Approaches

Every Australian jurisdiction now has an industrial manslaughter offence, but the consistency stops there. Maximum penalties range from life imprisonment in the Northern Territory to 25 years imprisonment (and $20 million for body corporates) in New South Wales.

The elements of the offence also differ. Queensland requires negligence about causing death, while New South Wales requires gross negligence, and the Northern Territory requires recklessness or negligence. Western Australia applies a different standard altogether, requiring that the PCBU’s conduct is engaged in “knowing” it is likely to cause death or serious harm.

These variations mean that the same workplace fatality could result in vastly different legal consequences depending on which side of a state border it occurred.

For more detail, see the industrial manslaughter comparison table at Hamilton Locke.

Psychosocial Hazards: A Split Approach to the Hierarchy of Controls

One of the most significant emerging divergences relates to psychosocial hazards and whether the hierarchy of controls must be applied to manage these risks.

The model WHS Regulations originally did not mandate application of the hierarchy of controls for psychosocial hazards. However, Queensland, the Australian Capital Territory, the Northern Territory, South Australia and the Commonwealth have all amended their regulations to explicitly require use of the hierarchy (elimination, substitution, isolation, engineering controls, administrative controls, PPE).

New South Wales followed suit with its WHS Regulation 2025, which commenced in August 2025, explicitly requiring the hierarchy of controls under section 55C.

Western Australia and Tasmania have not made this change, maintaining the original model position that psychosocial risks do not have to be managed according to the hierarchy. This creates confusion for PCBUs with operations in multiple states about whether they must prioritise elimination and higher-order controls or whether lower-order measures like Employee Assistance Programs are sufficient.

Safe Work Australia has flagged this inconsistency as problematic for harmonisation. For practical guidance on managing psychosocial hazards, see SafeWork NSW’s Code of Practice.

Health and Safety Representatives: Expanding Powers in Some States

Queensland made substantial amendments to HSR powers in 2024 following its 2022 Review of the WHS Act. These changes included permitting HSRs to accompany WHS entry permit holders and inspectors, request and receive information about worker health and safety, and issue written cease work notices to PCBUs.

The amendments also introduced new requirements for PCBUs to proactively provide workers with information about HSRs and work groups, and prohibitions on PCBUs from intentionally hindering HSR elections.

New South Wales is following Queensland’s lead with amendments introduced in 2025, while other jurisdictions maintain the narrower HSR powers under the original model laws. This creates inconsistency in worker representation entitlements across state borders.

The model laws already provide for HSR powers, but Queensland and NSW have significantly expanded these beyond the national framework. For businesses operating nationally, this means different consultation and representation obligations in different locations.

Right of Entry: Divergent Approaches to Union Access

Right of entry provisions under Part 7 of the model WHS Act have been subject to substantial variation. Queensland reintroduced a 24-hour notice requirement for entry permit holders in 2025 (except where there is reasonable belief of serious, immediate or imminent hazard), marking a significant departure from the model Act which requires notice “as soon as practicable after entry.”

New South Wales, Victoria, Western Australia, South Australia and the ACT allow entry permit holders to take photographs, videos, measurements and conduct tests at workplaces. Queensland initially passed similar amendments but they never commenced.

South Australia takes a more restrictive approach, requiring entry permit holders to reasonably suspect a contravention before entering, and to consider whether it is reasonably practicable to notify SafeWork SA prior to entry.

Western Australia has not included Part 7 in its WHS laws at all, instead applying the workplace entry permit system under the Industrial Relations Act 1979 (WA).

For further information on union right of entry, visit Safe Work Australia’s model WHS laws page.

Prosecution and Enforcement: Different Systems, Different Outcomes

Who brings WHS prosecutions and how they are decided varies significantly across jurisdictions. Queensland established the Office of the Work Health and Safety Prosecutor as an independent statutory body separate from both the regulator and the Director of Public Prosecutions.

In New South Wales, unions can now initiate prosecutions for any WHS offence after consulting with a regulator who has declined to bring proceedings. This is a substantial expansion from the previous position where unions could only commence proceedings for Category 1 and 2 offences.

Tasmania refers serious breach files to the DPP who decides whether to prosecute, while Western Australia, New South Wales and Victoria regulators have authority to decide whether to prosecute (though in WA, industrial manslaughter proceedings must be commenced by the DPP).

The Northern Territory regulator must seek the views and consent of the DPP on prosecuting industrial manslaughter and Category 1 offences involving death.

These variations affect consistency in how breaches are investigated, prosecuted and penalised across Australia. The National Compliance and Enforcement Policy (NCEP) aims to promote consistency, but research by Bluff and Johnstone found considerable diversity in how WHS regulators support, inspect and enforce compliance despite the NCEP.

Penalties and Enforcement: The Widening Gap

The model WHS Act was amended in July 2023 to introduce a tiered classification system, change how penalty provisions are expressed, increase penalty amounts, and provide for indexation. Only the Commonwealth and ACT have implemented these changes in full.

New South Wales increased penalties to align with the model but did not adopt the tiered classification system or remove penalty units. Queensland also continues to use penalty units.

Maximum penalties for the same Category 1 offence now differ. The Commonwealth has chosen a maximum of $17 million for body corporates compared to $11.8 million under the current model WHS Act (as of July 2025).

For HSE Direct clients operating nationally, understanding these penalty variations is crucial for risk assessment and insurance purposes.

Codes of Practice: State-Specific Developments

Queensland requires PCBUs to either comply with an approved code or manage hazards and risks in a way that provides an equivalent or higher standard. Failure to comply is a Category 3 offence. New South Wales introduced an identical provision in 2025.

South Australia requires that the WHS Minister may only approve, vary or revoke a code if acting upon the recommendation of the advisory committee, after consulting with the Small Business Commission on small business impacts.

Western Australia mandates that the public must have free access to approved Codes of Practice and any document they reference, which has significant implications for Australian Standards that usually involve purchase costs.

Visit HSE Direct’s resources page for downloadable WHS standards and compliance checklists.

The Practical Impact on Businesses and Workers

Compliance Complexity for Multi-Jurisdictional Operations

For businesses operating across multiple jurisdictions, these variations create considerable confusion and compliance burden. Different WHS obligations apply to duty holders depending on location, even for the same activity.

Construction companies working on projects in Queensland, New South Wales and Victoria must navigate different HSR powers, different right of entry rules, different consultation requirements, and different prosecution frameworks.

Mining companies operating in Queensland, Western Australia and South Australia face different mining-specific regulations. Queensland maintains distinct legislation for electrical safety and has industry-specific laws that apply to the exclusion of the WHS Act in certain circumstances. Most jurisdictions have separate arrangements for regulating mining safety, further fragmenting the regulatory landscape.

Different Worker Rights and Protections

Variations in laws lead to inconsistent protections for workers and differences in representation and consultation entitlements. While the primary duty of care under section 19 of the model WHS Act should ensure a baseline level of safety, variations in other duties, consultation frameworks, and regulations can result in perceived or actual differences in protection.

A construction worker in Queensland has the right to be accompanied by their HSR when an inspector visits the site. That same worker on a project in Western Australia may not have the same entitlement.

A worker exposed to psychosocial hazards in New South Wales is entitled to controls applied according to the hierarchy, prioritising elimination and job redesign. A worker in Tasmania has no such legislative requirement.

Public perception of safety and legal obligations plays a critical role in maintaining confidence in the system. These inconsistencies undermine that confidence.

Inconsistent Enforcement and Prosecution Outcomes

Inconsistencies extend to penalties, investigations and enforcement approaches, contributing to varied outcomes in prosecutions and sentencing. This undermines the principle that duty holders should face equivalent consequences for similar breaches.

Research by Safe Work Australia examining sentencing frameworks found that outcomes can be influenced by whether the presiding magistrate has expertise in WHS matters. In South Australia, New South Wales and the ACT, WHS cases are heard by judges or magistrates with backgrounds in employment law, WHS law or industrial relations, contributing to more consistent sentencing. In other jurisdictions, assignment depends on court location, which may result in less specialised handling.

What Broke the System?

Political Pressures and Local Responses

The Safe Work Australia Discussion Paper identifies several contributing factors to the erosion of harmonisation. Political shifts have influenced priorities, with some jurisdictions reversing earlier changes when governments change.

Tragic workplace fatalities have prompted jurisdictional-specific responses. The 2016 Dreamworld and Eagle Farm incidents in Queensland led to the 2017 best practice review and subsequent amendments that diverged from the model laws.

Elected officials need to be responsive to their electorates, and Safe Work Australia’s processes for regulatory proposals can be slow. WorkSafe WA noted in its submission to the Best Practice Review that significant amendments to model WHS laws can proceed without unanimous agreement from WHS Ministers, which may lead to lack of proper analysis.

Review Recommendations and Jurisdictional Variations

Many variations arose from adoption of review recommendations. Since 2018, there have been reviews in Queensland (2022), South Australia (2022), New South Wales (2022 and 2023), the Northern Territory (2019), the ACT (2022) and Victoria (2025).

Most of these reviews led to significant variations from the harmonised model. The 2022 Queensland Review made 31 recommendations, all accepted by the Queensland Government. The Independent Review of SafeWork SA made 39 recommendations, 36 accepted at least in part. The Independent Review of SafeWork NSW resulted in the establishment of SafeWork NSW as a standalone regulator from July 2025.

While these reviews addressed legitimate local concerns and led to improvements in regulator performance, they also contributed to the fragmentation of the national framework.

Emerging Hazards and Rapid Response

Some variations were made in response to emerging hazards not anticipated in 2010. In 2022, New South Wales amended its regulations requiring food delivery platforms to supply riders with high-visibility PPE following multiple rider fatalities in 2020.

The ACT included sexual assault at a workplace as a notifiable incident in 2022, responding to increased focus on workplace sexual harassment following the Respect@Work report.

These responsive amendments address real issues, but they occur outside the national harmonisation process, contributing to divergence.

Erosion of the IGA Process

Under the Intergovernmental Agreement, each jurisdiction committed to seek WHS Ministers’ agreement before making material amendments to their WHS laws and agreed not to implement such amendments without this agreement.

Despite this commitment, the process has been eroded. Several jurisdictions have made significant changes without following the IGA process. Jurisdictions periodically proceed with amendments without informing Safe Work Australia Members or the Agency. Proposed changes are not routinely brought forward for national-level consideration.

Amendments agreed to at the national level are also often changed when implemented at state or territory level, further undermining consistency.

Can Harmonisation Be Saved?

Safe Work Australia is conducting the Best Practice Review with the explicit goal of strengthening and maintaining harmonisation. The review closed for public consultation on 3 November 2025, with the final report expected to be provided to WHS Ministers in mid-2026.

Potential Solutions Under Consideration

Previous research by Bluff and Gunningham identified several potential approaches to strengthen harmonisation:

• Independent monitoring of legislative consistency and safety outcomes
• Harmonised data systems to support transparency of WHS outcomes
• Enforceable commitments in key regulatory areas
• Financial incentives to encourage alignment
• Consideration of a national legislator or referral of powers to the Commonwealth

The review is examining mechanisms to support uniform adoption of amendments, monitoring and reporting on variations, promoting transparency and accountability, strengthening stakeholder engagement, and examining regulatory capability and governance across jurisdictions.

Maintaining Tripartite Arrangements

Effective governance arrangements and tripartite consultation at both national and jurisdictional levels are crucial. The review considers how issues raised at the jurisdictional level can be elevated to the national level, and how national-level decisions can remain supported during implementation.

All jurisdictions have established tripartite advisory councils or committees containing employee and employer representatives. However, it is important that jurisdictional processes remain connected to the national decision-making of Safe Work Australia Members and WHS Ministers.

The Role of the National Compliance and Enforcement Policy

The NCEP was developed to support a consistent approach to compliance and enforcement by WHS regulators. While most jurisdictions have adopted their own compliance and enforcement policies that incorporate or recognise the NCEP, there remain concerns about inconsistencies in application.

The 2018 National Review recommended the NCEP be amended to include a decision-making framework to guide selection of enforcement tools. While subsequent updates improved clarity, a formal decision-making framework was ultimately not included.

Union and industry stakeholders continue to express concerns about how the NCEP is adopted and applied. Regulators generally take a different view, indicating they are following the risk-based approach of the NCEP but acknowledging some differences arise from jurisdictional priorities and resource allocation.

What This Means for WHS Professionals in 2026

For WHS consultants, safety managers, and PCBUs operating across multiple jurisdictions, the fragmentation of harmonisation creates practical challenges:

Compliance obligations vary by location. You must understand and apply different rules depending on where your operations, projects or workers are located. This increases administrative burden and compliance costs.

Worker entitlements differ. Your consultation and representation obligations, HSR powers, and dispute resolution processes may be different in each state. This affects how you engage with workers and their representatives.

Enforcement approaches are inconsistent. The regulator you deal with in one state may have different powers, prosecution arrangements, and compliance strategies compared to another state. This affects your risk profile and compliance strategy.

Penalties and consequences vary. Maximum penalties for the same breach differ across jurisdictions. Industrial manslaughter offences have different elements and different maximum sentences. This affects your risk assessment and insurance arrangements.

Codes of Practice have different legal weight. In Queensland and NSW, failure to comply with a code or provide equivalent measures is an offence. In other jurisdictions, codes are admissible evidence but not mandatory. This affects how you use codes in your compliance systems.

Practical Steps for National Operators

For organisations working across state borders, HSE Direct recommends:

1. Conduct jurisdiction-specific gap analyses. Don’t assume that compliance in one state equals compliance in another. Review your systems against each jurisdiction’s specific requirements.
2. Track legislative changes in all relevant jurisdictions. Subscribe to regulator updates for each state and territory where you operate. Changes can happen rapidly, particularly in NSW, QLD and SA.
3. Apply the highest standard across all operations. Where practical, adopt the most stringent requirement as your baseline. This reduces complexity and provides consistent protections for all workers.
4. Document jurisdiction-specific procedures. Where requirements genuinely differ, clearly document the specific obligations that apply in each location. Make sure supervisors and managers understand these differences.
5. Engage with the Best Practice Review process. The review presents an opportunity to advocate for renewed commitment to harmonisation. Consider making a submission or participating in consultation processes.

For assistance with multi-jurisdictional WHS compliance, contact HSE Direct for expert advisory services.

The Bigger Picture: Workers’ Lives Depend on Getting This Right

Behind the legislative complexity and jurisdictional variations are real consequences. In 2023, 200 workers died from traumatic injuries while working. Of these, 62 occurred in just three industries: transport, postal and warehousing (26), construction (23), and agriculture, forestry and fishing (14).

While the fatality rate has dropped 19% since 2013, it has failed to reduce further in recent years. Serious compensation claims have trended upward since 2015-16, and median time lost from work-related injuries has increased.

Mental health conditions now account for 10.5% of serious workers’ compensation claims, a 97.3% increase from 2012-13.

Harmonisation matters because it supports the fundamental objective of the model WHS Act: to provide a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. When that framework fractures, it undermines the protections that save lives.

The Best Practice Review represents a critical opportunity to reset the harmonisation agenda and recommit to the principles agreed under the IGA. Whether jurisdictions will subordinate local political pressures and priorities to the national framework remains to be seen.

For WHS professionals on the ground, the challenge is to navigate the current fragmented landscape while advocating for the consistency that workers and businesses deserve.

Further Resources

• Safe Work Australia Best Practice Review Consultation Hub
• Model WHS Act Cross-Comparison Table
• National Compliance and Enforcement Policy
• SafeWork NSW
• WorkSafe Queensland
• WorkSafe Victoria
• SafeWork SA
• WorkSafe WA
• HSE Direct Resources
• HSE Direct Blog

---

About HSE Direct

HSE Direct is a leading WHS consultancy specialising in compliance advisory, safety standards development, and WHS system implementation for construction, mining, and renewable energy sectors across Australia. Our team provides expert guidance for organisations navigating multi-jurisdictional WHS obligations.

For more information about WHS compliance in your jurisdiction, contact our team or visit hsedirect.com.au.