First we see that the training was being conducted by paid rather than volunteer trainers. This removes any issues regarding the application of the OHS legislation as the paid staff were at their place of work so owed a duty to people other than employees, in this case SES volunteers, that were at their place of work.
In my original post I commented that the application of the NSW Act to volunteers was unclear, but given there were paid trainers it follows that had this occured on the NSW side of the Murray river the legal outcome would have been much the same.
Also in the original post on this matter I said that
Regardless of the fine legal points (remembering that the application of the OHS Act is clearer in Victoria than it is in New South Wales), it should be heartening to note that in both cases, that is the case involving the NSW Fire Brigades and the recent prosecution of VicSES it was not the individual fire-fighters or volunteers or trainers that were prosecuted. In each case it was the organisation itself that was the subject to the proceedings reflecting the view that the safety failures lay not in the decisions of the members on the ground or their failure to apply safe practices and policies. Without knowing the details of this latest case, we may assume that the prosecution of the organisation, rather than an individual , represents a view by WorkSafe in Victoria and WorkCover in New South Wales, reflected a view that in each case it was an institutional or organisational failing to ensure that the members had the tools, the resources or the training to safely perform their task.
Again we can see from the WorkSafe summary that the allegation was that the SES “… failed to inform and instruct its employees who conduct the “Swim Test” …” to take certain safety measures, not that the instructions were issued but not followed. Even if instructions had been issued but not followed, there would still be organisational responsibility to train and supervise trainers to ensure that they actually put those instructions into practice. Responsibility except in the most outrageous cases, will nearly always fall on the organisation rather than the individual.
Regardless of the legal issues, we must remember the tragedy that this event was and remember the sacrifice of this volunteer and the cost that his family are paying. Discussing the legal issues in this forum is in no way meant to detract from that sacrifice and the tragedy for his family and the SES community.