Building a preventative culture December 2021 A key element of the WHS Act is a positive duty of dutyholders requiring the elimination or minimisation of risks arising from work.65 The primary duty is to identify, control and address hazards and risks, so far as is reasonably practicable, which may affect the physical and psychological health or safety of workers. The recommendations of the Robens committee were based on a conviction that legislation ‘should seek to promote, as much as to control’.66 Robens advised against the use of prosecution for most offences under health and safety law, preferring instead the use of new administrative sanctions, improvement and prohibition notices, to encourage good practice. Indeed, the Robens Committee believed the role of the state was to facilitate good practice, establishing and strengthening the arrangements through which voluntary effort, or ‘self-regulation’ could thrive.67 As noted in an overview of the Australian legislation by the Australian National University School of Regulation and Global Governance, REGNET: A key development in the legislation in the jurisdictions that have adopted the national model Act and regulations is to establish the ‘person conducting a business or undertaking’ (the PCBU) as the principal duty holder, rather than the ‘employer’. The PCBU concept includes employers but it also includes franchisors, principal contractors, the head parties in supply chains, and others conducting a business or undertaking. Importantly, a PCBU must ensure the health and safety, so far as is reasonably practicable, of all workers engaged or caused to be engaged by the PCBU, or whose activities in carrying out work are influenced or directed by the PCBU. In addition, these seven jurisdictions have the same provisions in relation to the general duties, worker representation and participation, the functions and powers of regulators and inspectors, and sanctions for non-compliance.68 Safe Work Australia’s guide, How to determine what is reasonably practicable to meet a health and safety duty, provides further assistance on the issue: A duty holder must first consider what can be done – that is, what is possible in the circumstances for ensuring health and safety. They must then consider whether it is reasonable in the circumstances to do all that is possible.69 Safe Work Australia explains that what is ‘reasonably practicable’ is an objective test. It takes into account what the person ought reasonably to have known and what was reasonably foreseeable by someone in the position of the duty holder at the particular time.70 It also clarifies that ‘the standard is intended to be a very high one’.71 FREE AND EQUAL An Australian Conversation on Human Rights 69