In 1996, four miners died after their continuous miner broke into the abandoned Young Wallsend colliery, which instantly flooded the mine in which they were working.

The disaster occurred because mine managers operating the mine had relied on maps of the adjacent disused mine provided by the New South Wales Department of Minerals Resources.

The maps were faulty, showing the old mine in the wrong position.

In 2000, mine owner Newcastle Wallsend Coal Co and parent company Oakbridge, along with the managers of the mine, were prosecuted and convicted under New South Wales’ occupational health and safety laws.

By the time the convictions were recorded in 2005, Xstrata had purchased Oakbridge and inherited total responsibility for the criminal liabilities of Newcastle Wallsend Coal Co in relation to Gretley.

The company was fined $A1.47 million and the mine managers a total of $102,000.

“It is clear that the Gretley disaster was the culmination of a series of human errors over a long period of time … the Gretley mine managers and company were at the tail, but most critical, end of that series of errors. They alone were prosecuted,” the report said.

The Institute of Public Affairs (IPA) report by Ken Phillips was released yesterday and is the result of a two-year investigation and research project into New South Wales’ occupational health and safety legislation, which was reviewed and changed after the disaster.

“Instead of these laws being a positive legacy to the memory of the four deceased Gretley miners, they do an injustice to their memories. This needs to be corrected,” Phillips said.

“The design of NSW OHS legislation is deeply flawed. It creates dangerous work cultures in NSW because it is based on a presumption of guilt for some parties and minimal application of liability for others.”

The report said the failure to prosecute either the Department of Minerals Resources or the contract company that employed three of the miners, and the failure of the NSW Government to reveal why they were not prosecuted, raises serious questions about the integrity of the OH&S system and the use of the powers of criminal prosecution under the system.

The NSW Government established a formal judicial investigation which reported in 1998 and found that the Department of Mineral Resources directly contributed to the disaster through its failures in relation to the maps.

However, the Attorney-General of NSW did not initiate a prosecution against the department and would not make the reasons behind the decision public.

“If workplace injury and deaths are to be avoided, it is essential that every person and organisation in any chain of events that leads to safety incidents is captured in the liability net of OHS legislation,” Phillips said.

“The NSW OHS legislation has an excessive and almost exclusive focus on holding employers or ‘like employers’ [for example, managers] responsible, while other parties are not held similarly liable.

“This is flawed legislation that contributes to unsafe worksites and practices.”

The IPA report also suggests that as the direct employer of three of the deceased miners, a detailed investigation of United Mining Support Services (UMSS) should also have been undertaken in relation to the disaster.

UMSS was majority-owned by the Construction, Forestry, Mining and Energy Union (CFMEU), which the report claims had "deep institutional links" with the Government and "significant influence over the political pre-selection processes of many members of parliament".

“The processes of prosecution or non-prosecution have suffered from serious irregularities, to the point that there exist questions about the integrity and impartiality of the OHS prosecution processes in NSW,” Phillips said.

“NSW OHS laws have a highly narrow focus on the role of the employer. Instead of equally apportioning liability and responsibility across all persons involved in worksites, the NSW OHS laws place emphasis on employers and, by comparison, apportion little if any liability to employees.

“For example, NSW OHS laws apply maximum fines of 750 penalty units and possible imprisonment against employers, but only 45 penalty units and no imprisonment against employees. Victoria, on the other hand, applies exactly the same level of penalties against both employers and employees.

“In addition, NSW is alone in applying a presumption of guilt to employers. The mere fact that an incident has occurred means that an employer [or the employer’s manager] is automatically held to be guilty.

“The presumed guilty person is in the position of having to disprove their guilt and the Gretley case shows that even if others were also at fault, those others can and do avoid prosecution and conviction,” the report concluded.