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I C A C R E P O R T

Report on investigation into the University of Newcastle’s handling of plagiarism allegations

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Report on investigation into the University of Newcastle’s handling University of Newcastle’s handling of plagiarism allegations

I C A C R E P O R T

2 I C A C R E P O R T : Report on investigation into the University of Newcastle’s handling of plagiarism allegations

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© June 2005 _ Copyright in this work is held by the Independent Commission Against Corruption. Division 3 of the Copyright Act 1968 (Cth) recognises that limited further use of this material can occur for the purposes of “fair dealing”, for example study, research or criticism, etc. However if you wish to make use of this material other than as permitted by the Copyright Act, please write to the Commission at GPO Box 500 Sydney NSW 2001.

This report and further information about the Independent Commission Against Corruption can be found at www.icac.nsw.gov.au

Independent Commission Against Corruption

ADDRESS Level 21, 133 Castlereagh StreetSydney, New South Wales, Australia 2000

POSTAL ADDRESS GPO Box 500, Sydney,New South Wales, Australia 2001

DX 557 Sydney

TELEPHONE 02 8281 59991800 463 909 (toll free, for callers outside metropolitan Sydney)

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The Hon Dr Meredith Burgmann MLC The Hon John Aquilina MPPresident SpeakerLegislative Council Legislative AssemblyParliament House Parliament HouseSydney NSW 2000 Sydney NSW 2000

Madam PresidentMr Speaker

In accordance with section 74 of the Independent Commission Against Corruption Act 1988, I am pleased to present the report of the Independent Commission Against Corruption into an investigation concerning the handling by certain present and former staff of the University of Newcastle of plagiarism by students at an offshore campus of the University’s Graduate School of Business.

Assistant Commissioner Peter Hall QC (now His Honour Justice Hall of the New South Wales Supreme Court) presided over the hearings which were conducted for the purposes of this investigation.

I draw your attention to the recommendation that the report be made public forthwith pursuant to section 78(2) of the Independent Commission Against Corruption Act 1988.

Yours sincerely

The Hon Jerrold Cripps QCCommissioner


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Contents

Chapter 5: Inaction of the University’s senior managers following the Lamond Report 51

Perception of a “cover-up” 51

The sudden referral to a Student Discipline Committee 55

Failure to brief the Senior Executive Group 56

Failure to brief the University Council 57

Findings of fact 57

The role of Professor Carey 60

Chapter 6: Findings as to corrupt conduct and statements pursuant to section 74A(2) of the ICAC Act 61

Determining corrupt conduct 61

Offi cial misconduct – the common law principles 63

Dr Paul Ryder and Dr Robert Rugimbana 65

Dr Rachid Zeffane 67

Professor David Lamond 68

Actions subsequent to the Lamond Report 68

Professor Roger Holmes 69

Professor Brian English 69

Professor Bernard Carey 70

Section 74A(2) statement 71

Chapter 7: Corruption prevention issues 72

The Commission’s role 72

Prevention principles 72

Prevention issues 73

Policy compliance and administration 74

Record-keeping 78

Confl icts of interest 79

Complaints management and investigation 81

Managing emerging risks 82

Appendix 1: University of Newcastle’s Plagiarism Policy (October 2002) 86

Appendix 2: University of Newcastle’s Code of Conduct 98

Appendix 3: The Commission’s role 103

Appendix 4: The relevant standard of proof 104

Executive summary 6

Chapter 1: Introduction 9

Why the Commission investigated this matter 9

How the Commission investigated the matter 10

The hearings 11

Outcomes 11

Section 78(2) recommendation 12

Chapter 2: Background 13

The University 13

The Graduate School’s Strategic Plan 13

Institut WIRA 14

The University’s Plagiarism Policy 15

Detection of plagiarism 17

The Hong Kong precedent 18

Dr Rugimbana intervenes 19

Senior management takes over 19

The Lamond inquiry 19

Media exposure 20

Referral to a Student Discipline Committee 20

Three segments of events 21

Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students 22

Mr Firns’s allegations 23

Initial steps in dealing with the plagiarism 24

The decision to re-mark the assignments 25

Contentions 26

Dr Ryder’s conduct 32

Dr Rugimbana’s conduct 33

Dr Zeffane’s conduct 37

Findings of fact 39

Chapter 4: The Lamond inquiry 41

Professor Lamond’s suitability to conduct the inquiry 41

The question of Professor Lamond’s independence 41

The Lamond inquiry’s terms of reference 44

The outcome of the Lamond inquiry 45

Findings of fact 50


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Investigation fi ndings and recommendations

A number of fi ndings of fact are made in Chapters 3, 4, and 5 of the report. These include the following:

n The failures by Dr Ryder (the then head of the Graduate School) to apply the University’s plagiarism policy and to undertake any proper investigation of the original plagiarism allegations constituted breaches of obligations imposed on him by the plagiarism policy, the relevant code of conduct and obligations arising under his employment contract.

n In proceeding to have the relevant assignments remarked both Dr Ryder and Dr Rugimbana (Dr Ryder’s then Deputy) were motivated by a desire to avoid any potential adverse consequences that the allegations may have had to damage the University’s offshore program. Such a motive was an entirely illegitimate one as it entailed the undermining of academic standards by effectively side-lining proper investigative procedures required to be undertaken in accordance with the plagiarism policy.

n Professor David Lamond, the Director of the Sydney Graduate School of Management, the person appointed by the University to conduct an independent inquiry into the handling of Mr Firns’s report of plagiarism, lacked independence and relevant experience and should not have been appointed to conduct such an investigation. His inquiry was fl awed by his failure to examine pertinent issues, including whether there had been any plagiarism.

n The failure by Professor Roger Holmes (the then Vice-Chancellor of the University) and Professor Brian English (the University’s Deputy Vice-Chancellor) to fully and properly advise the Academic Senate, the Senior Executive Group or the Council of the University of the matter represented a serious failure by them of their duties under the University’s code of conduct.

Findings are made that Dr Paul Ryder and Dr Robert Rugimbana engaged in corrupt conduct. No fi ndings are made that any other person engaged in corrupt conduct. These fi ndings are discussed extensively in Chapter 6 of the report.

This report deals with an investigation by the Independent Commission Against Corruption (“the Commission”) into an allegation made in 2003 by Mr Ian Firns, then a sessional lecturer with Newcastle University, of corrupt conduct in connection with the handling of an incidence of plagiarism in assignments submitted by post-graduate students enrolled at an offshore campus of the University of Newcastle’s Graduate School of Business (“the Graduate School”).

Through the Graduate School, the University of Newcastle offered a Master of Business Administration program at a Malaysia-based private educational organisation, Institut WIRA, to post-graduate students.

Mr Firns’s allegations related to the handling by University staff of a report by him that 15 Institut WIRA students had substantially plagiarised the contents of assignments which he had received for assessment.

The Commission decided it was in the public interest to investigate this matter. This was because the allegations related not just to the issue of the maintenance of academic integrity through the detection and prevention of plagiarism, but also raised serious questions about the proper and effective management of this issue by the University.

The Commission interviewed a number of witnesses and obtained and examined relevant documents, which indicated that there had been plagiarism in some assignments and that University policy in dealing with this issue had not been followed. Analysis of the available evidence left a number of signifi cant questions unresolved, including why the relevant university offi cials had apparently been unwilling to establish the veracity of plagiarism claims and why the authorised procedures set out in the University’s plagiarism policy were not followed.

In order to obtain answers to these questions and to determine whether anyone had engaged in corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988 (“the ICAC Act”), the Commission held both private and public hearings as part of this investigation. Private hearings were conducted over four days in June and July 2004 to take evidence from four witnesses and public hearings were held over 18 days between 9 September and 8 December 2004, taking evidence from 16 witnesses.

Executive summary

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No recommendations are made that consideration be given to the prosecution of any person for any criminal offence.

A recommendation is made in Chapter 6 of the report that the Vice-Chancellor of the University give consideration to the taking of disciplinary action (but not dismissal) against Professor English with respect to his conduct in relation to the matters the subject of this investigation.

As other University offi cials involved in this matter no longer work for the University it was not necessary to consider whether any similar recommendation should be made in relation to any of them.

Corruption prevention recommendations

The conduct revealed by this investigation was suffi ciently serious to warrant making recommendations about action that the University could take in order to prevent events of this kind happening again. The University has already begun a comprehensive program of work to do this and some of those initiatives are reported in Chapter 7. The recommendations made in Chapter 7, and reproduced below, are intended to support and complement the initiatives already commenced by the University.

The specifi c corruption prevention recommendations made in this report are as follows:

Recommendation 1 – assessment policy

That the University of Newcastle reviews any current policies, procedures and practices, applicable to assessment and grading of student work throughout the University, that provide for re-marking and moderation of marks. The review should ensure that these policies, procedures and practices:

n define any circumstances in which items of assessment may be re-marked or the marks assigned to them moderated and the procedures to be followed in doing so;

n interact effectively with policies and procedures for managing plagiarism;

n are easy for staff to access and comply with;

n are understood by academic staff with administrative responsibilities in faculties and schools; and

n are standardised across the University as far as is practical.

Recommendation 2 – policy compliance

That the University of Newcastle takes action to encourage staff awareness of, and compliance with, the University’s values and policies. In particular that:

n in developing the roles of Student Academic Conduct Offi cers, the University considers the need for their role to concern all forms of all forms of allstudent misconduct, and also considers the need for all academics to maintain knowledge all academics to maintain knowledge alland awareness of the standards and processes governing student conduct; and

n introduces a systematic method for reinforcing, among academic staff, the importance of compliance with institutional policy and procedure for example by:

n including unambiguous statements in the University’s policy and procedure documents about how they should be complied with - those that are mandatory should be communicated as such together with details of any exceptional circumstances in which departures from the policy might be acceptable and the procedures for doing so including who has the authority to approve a departure from policy;

n conducting induction programs for new members of staff that promote awareness of policies and procedures;

n providing regular information about changes to policy and procedure as they occur;

n introducing a method for reviewing and evaluating policies and procedures in order to maintain their effectiveness.

Executive summary 7

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Recommendation 3 – administrative capacity

That the University of Newcastle develops a means of ensuring that academic staff appointed to administrative positions such as program director, head of school and head of faculty, have adequate management skills and an understanding of standard management practices and institutional standards that are necessary to fulfi l their responsibilities. Possible mechanisms include requiring experience or training in management skills as a prerequisite for appointment to administrative positions or providing management skills training as part of the professional development of potential administrators that would include:

n the ethical dimension of their administrative work;

n standard management practices including ensuring compliance with University policies and practices, record-keeping and dealing appropriately with complaints and conflicts of interest; and

n corruption risk management.

Recommendation 4 – internal investigative capacity

That, in developing a new complaint management function, the University of Newcastle establishes a dedicated administrative function to manage and respond to both internal and external complaints which reports to the Vice-Chancellor and employs staff who are professionally trained in receiving and investigating complaints.

Recommendation 5 – risk management

That in the course of its review of the internal audit function, the University of Newcastle:

n ensures that risks of fraud, corruption and misconduct are adequately addressed in its routine risk assessment and risk management plans and, if necessary, develops a separate corruption prevention strategy to address the risks identified;

n adopts a method for identifying and monitoring the risk factors present in the delivery of offshore programs and the delivery of courses to full fee-paying students;

n expands the implementation plan for the recommendations of the St James Ethics Centre to include the issues raised in this report where this is appropriate. The training programs in academic ethics and plagiarism proposed in the University’s Management Action Plan could also include a discussion of the risks to academic integrity and educational quality posed by corruption and misconduct.


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the person who initially identifi ed the plagiarism and his claims with an attitude marked by disdain and irritation, accompanied later by signs of abruptness and an unwillingness to divulge information on the University’s handling of the allegations. Why would senior offi cials behave in such a manner? Questions of motive and purpose were central in uncovering the reasons for such extraordinary behaviour.

The persons relevant to the Commission’s investigation into this matter include:

n Mr Ian Firns, then a sessional lecturer with the Graduate School;

n Dr Paul Ryder, the then Head of the Graduate School;

n Dr Ryder’s then Deputy, Dr Robert Rugimabana;

n Dr Rachid Zeffane, then a senior lecturer at the Newcastle School of Business;

n Mr Ron Day, then a lecturer at the Graduate School;

n Professor Dato Tangavalu Marimuthu, then CEO of Institut WIRA, Malaysia;

n Professor David Lamond, the Director of the Sydney Graduate School of Management;

n Professor Bernard Carey, then the Pro Vice-Chancellor of the University’s Faculty of Business and Law;

n Professor Ron MacDonald, Deputy Vice-Chancellor (Research);

n Professor Brian English, Deputy Vice-Chancellor; and

n Professor Roger Holmes, the then Vice-Chancellor of the University.

Why the Commission investigated this matter

The Commission decided it was in the public interest to investigate this matter. This was because the allegations related not just to the issue of the maintenance of academic integrity through the detection and prevention of plagiarism, but also raised serious questions about the proper and effective management of this issue by the University. Relevant issues included:

This report concerns an investigation conducted by the Independent Commission Against Corruption (“the Commission”) into an allegation made in 2003 by Mr Ian Firns, then a sessional lecturer with Newcastle University, of corrupt conduct in connection with the handling of an incidence of plagiarism in assignments submitted by post-graduate students enrolled at an offshore campus of the University of Newcastle’s Graduate School of Business (“the Graduate School”).

This report involves an issue of community concern – the protection and maintenance of appropriate academic standards at a publicly funded university in New South Wales and in relation thereto the conduct of senior offi cials that breached and otherwise failed to comply with the University’s policy on the prevention and detection of plagiarism.

The matters of concern to the Commission in this investigation lay not in the University’s policy itself nor in the detection of plagiarism, which was clearly identifi ed by the original marker of the relevant assignments. The central concern has been with the conduct of University offi cials who thereafter effectively ignored the serious allegations of plagiarism and adopted a re-marking process that favoured the students in question, rather than rigorously investigating the allegations. It took media exposure of the issue to effectively expose those offi cials responsible for that improper and inadequate response. By this time existing allegations of “soft marking” were now accompanied by allegations of a “cover-up” in relation to the offi cials who had participated in the re-marking of the assignments. The reaction of some senior offi cials within the University to media exposure was marked by a highly defensive and at times misleading stance. In July 2003 media exposure was instrumental in the hurried, albeit belated, referral of the plagiarism allegations to a Student Discipline Committee for investigation. Prior to 11 July 2003 senior management had, without reasonable excuse or justifi cation, been content to allow the plagiarism allegations to remain without effective investigation.

A matter of particular concern throughout the relevant events was the dismissive attitude displayed by certain senior managers to the original claim, made in plain and strong terms, that a number of assignments contained plagiarised material. Rather than an open-minded approach and a determination to investigate, senior management displayed a tendency to avoid that course (which was the only one consistent with policy obligations) and treated


Chapter 1: Introduction


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The University’s staff engage in a wide range of activities and as such discharge professional duties, either as educators, administrators or managers. Universities are public authorities within the meaning of the ICAC Act. The University of Newcastle was established by and operates pursuant to the University of Newcastle Act 1989. Its employees are public offi cials for the purpose of the ICAC Act.

Those holding senior management positions within the University at the centre of this investigation carry responsibilities both by reason of their employment and by virtue of the offi ces they occupied. As managers they were required to observe standards that had their source in the offi ces themselves, in prescribed policies and in codes of conduct made pursuant to statute.2 Equally they were obliged to ensure that employees and offi cers who worked with them also met applicable standards. It is by reference to such standards that the integrity of their conduct is to be measured.

At the end of the day the responsibility for the proper and effective management and administration of University activities is theirs. They in a real sense act as the trustees of the University’s good name and standards in their capacity as managers. Due and proper discharge of such fi duciary-like obligations ensures the development and maintenance of an ethical environment. Regrettably, in this matter such an environment was not maintained. And for that grave failure responsibility lies with both managers of the Graduate School and with senior University offi cials who were involved in the matter and who were part of the central administration of the University itself.

How the Commission investigated the matter

The Commission initially sought to understand what had occurred by interviewing a number of witnesses and obtaining and examining relevant documents. These enquiries indicated that there had been plagiarism in some assignments and that University policy in dealing with this issue had not been followed.

Analysis of the available evidence left a number of questions unresolved. These included the following:

n the failure to properly investigate the claims of plagiarism,

n the failure to apply the University’s policy on plagiarism,

n the whiting-out on some assignments of the comments made by the original marker identifying plagiarised material,

n the decision to remark the relevant assignments,

n whether those involved were motivated by a desire to avoid potential adverse consequences to the University’s commercial offshore program,

n whether the person subsequently appointed by the University to conduct an independent review was in fact independent and suffi ciently experienced, and

n the failure to report the matter in a timely manner to the Council of the University.

Plagiarism is a serious matter, especially in the context of tertiary education. Professor Ross Garnaut of the Australian National University made the point during the Sunday program “Cash-cow campuses”, broadcast on 3 August 2003:

It (plagiarism) undermines all of the values of scholarship. It’s the death of a scholarly institution.1

The University of Newcastle is widely regarded as one of the State’s leading tertiary institutions. The community places its trust in its educational institutions to ensure that academic standards are maintained. To provide an improper advantage to any group of students, including full fee-paying students, is antithetical to the essential principles that underpin the integrity of tertiary education. Such improper advantage constitutes a breach of public trust. In the context of the present investigation, plagiarism, the passing off of the works of others as the students own work, impugns academic integrity and must be dealt with swiftly and appropriately by well-directed action including the imposition of appropriate sanctions. Plagiarism undermines academic standards and results in unfairness to the honest and competent student. It must be prevented.

1 Transcript, Sunday program, 3 August 2003, at p.2, http://sunday.ninemsn.com.au/sunday/cover_stories/transcript_1345.asp2 See the Annual Reports (Statutory Bodies) Regulation Act 1985.

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(i) Why were relevant university offi cials apparently unwilling to establish the truth and accuracy of the claims that some assignments contained plagiarised material?

(ii) Why, given the binding nature of the University’s policy on plagiarism, was it not applied or followed?

(iii) Why was an unauthorised procedure which side-stepped both the policy and the allegations adopted?

(iv) Why was there an unwillingness to establish the facts surrounding the offi cial’s pursuit of the unauthorised procedure?

As these questions remained unanswered it was by no means clear whether any person had engaged in corrupt conduct within the meaning of the Act. In order to obtain answers to these questions and determine if anyone had engaged in corrupt conduct it was decided it would be necessary to use hearings to take evidence from a number of people.

The hearings

The ICAC Act provides that for the purposes of an investigation the Commission may hold hearings. These may be conducted in private or in public. In reaching a decision as to whether a hearing should be in public or private the Commission is obliged to have regard to any matters it considers to be related to the public interest.

The Commission determined in the public interest that it should conduct hearings and undertake other appropriate investigative steps to determine whether certain university staff members acted improperly in handling allegations of plagiarism by a number of overseas students and if so, whether such conduct was “corrupt conduct” within the meaning of the Act.

Initially a number of private hearings were conducted to protect the integrity of the investigation, to obtain a more detailed understanding as to what had occurred and why and to enable the Commission to determine if the public interest would require public hearings. The private hearings involved the taking of evidence from four witnesses, amongst other matters. The evidence given during these private hearings was the subject of supression orders made under section 112 of the ICAC Act. All of these orders are now lifted and the transcripts are publicly available.

Given the importance of the issues involved the Commission determined it was in the public interest to hold public hearings. These hearings were held over 18 days commencing on 9 September 2004. Evidence was taken from 16 witnesses.

Assistant Commissioner Peter Hall QC (now His Honour Justice Hall of the New South Wales Supreme Court) presided over the hearings which were conducted for the purposes of this investigation. Counsel Assisting the Commission in this investigation was Ms Chris Ronalds AM SC.

Outcomes

A number of fi ndings of fact are made in Chapters 3, 4, and 5 of the report. These include the following:

n The failures by Dr Ryder to apply the University’s plagiarism policy and to undertake any proper investigation of the original plagiarism allegations constituted breaches of obligations imposed on him by the plagiarism policy, the University’s Code of Conduct and obligations arising under his employment contract.

n In proceeding to have the relevant assignments re-marked both Drs Ryder and Rugimbana were motivated by a desire to avoid any potential adverse consequences that the allegations may have had to damage the University’s offshore program. Such a motive was an entirely illegitimate one as it entailed the undermining of academic standards by effectively side-lining proper investigative procedures required to be undertaken in accordance with the plagiarism policy.

n Professor Lamond, the person appointed by the University to conduct an independent investigation, lacked independence and experience and should not have been appointed. His inquiry was fl awed by his failure to examine pertinent issues, including whether there had been any plagiarism.

n The failure by Professors Holmes and English to fully and properly advise the Academic Senate, the Senior Executive Group or the Council of the University of the matter represented a serious failure by



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them of their duties under the University’s Code of Conduct.

Findings are made that Dr Paul Ryder and Dr Robert Rugimbana engaged in corrupt conduct. No findings are made that any other person engaged in corrupt conduct. These findings are discussed extensively in Chapter 6 of the report.

No recommendations are made that consideration be given to the prosecution of any person for any criminal offence.

A recommendation is made in Chapter 6 of the report that the Vice-Chancellor of the University give consideration to the taking of disciplinary action (but not dismissal) against Professor English with respect to his conduct in relation to the matters the subject of this investigation.

As other University offi cials involved in this matter no longer work for the University it was not necessary to consider whether any similar recommendation should be made in relation to any of them.

A number of corruption prevention recommendations are made in Chapter 7 of the report.

Section 78(2) recommendation

Pursuant to section 78(2) of the ICAC Act, the Commission recommends that this report be made public immediately. This recommendation allows either presiding offi cer of the Houses of Parliament to make the report public, whether or not Parliament is in session.

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Chapter 2: Background

The purpose of this chapter is to set out relevant information and provide a summary of events by way of background. This will assist the reader to understand the context in which the conduct examined in the following chapters occurred.

The University

The University of Newcastle was established in 1965. Its governing body is the University Council which has statutory responsibility for appointing staff and controlling fi nances. Day-to-day management of the University is the responsibility of the Senior Executive Group which, at the relevant time, consisted of the Vice-Chancellor, the Deputy Vice-Chancellor, the Deputy Vice-Chancellor (Research), the Deputy Vice-Chancellor (Services), the President of the Academic Senate and the Pro Vice-Chancellors of each of the fi ve faculties.3

The University then offered courses of study in fi ve faculties in addition to the English Language and Foundation Studies Centre, being:

n Faculty of Business and Law

n Education and Arts

n Engineering and Built Environment

n Health

n Science and Information Technology

These faculties were created in major restructure of the University which was implemented in 2002 and established an administrative head, with the title Pro Vice-Chancellor, for each faculty, which was composed of several schools with their own administrative hierarchies and Heads of School.

The School relevant to this enquiry is the Graduate School of business, which is a School within the University’s Faculty of Business and Law. The Graduate School is predominantly a post-graduate training organisation. It accepts domestic and overseas students both onshore and offshore on a fee-for-service basis, and delivers Masters programs in Business, Finance, Business Administration, Marketing and Human Resource Management and Industrial Relations.

Like many Australian universities, increasing the number of international students has been an explicit goal of the University4 and its international enrolments have increased steadily since 1999.5

At the relevant time, the University delivered degree courses offshore through partner institutions in Southeast Asia and offered, through the Graduate School, an accredited Master of Business Administration (MBA) program at a Malaysia-based private educational organisation known as Institut WIRA, then directed by Professor Dato Tangavalu Marimuthu. The program was an exclusively off-shore program, delivered using WIRA’s facilities in Kuala Lumpur to post-graduate students.

The Graduate School’s Strategic Plan

In 2002 the University instituted a major organisational restructure. The restructure streamlined university administration by standardising roles and titles and governance models across the university. The number of faculties was reduced from 11 to fi ve, and there were staff changes at many levels. The impact of the restructure in the Graduate School appears to have been signifi cant and some of the follow-on changes introduced by Dr Ryder are relevant to this report.

The appointments of Dr Ryder as Head of the Graduate School (as well as, later, the several other Business Schools operated by the University) and Professor Carey as Pro Vice-Chancellor (effectively the Head of the Faculty of Business and Law) were part of the University’s restructure.

Dr Ryder commenced employment with the University of Newcastle on 26 November 2001. At that time he took up a position as Head of the University’s Business School which is on the main campus, and as Head of the Graduate School which is in the central business district of Newcastle. In late 2002 Dr Ryder assumed a further responsibility for the University’s Central Coast Business School. At that stage the University permitted Dr Ryder use of the courtesy title “Dean of Business”.

Dr Ryder continued with responsibility for the day-to-day running of the Graduate School until May 2003 when a signifi cant change in his employment

Chapter 2: Background Chapter 2: Background

3 Senior Executive Group Terms of Reference, www.newcastle.edu.au/service/committees/constitutions.4 Australian Universities Quality Agency 2003, Report of the Audit of the University of Newcastle, AQUA Melbourne, January 2003, p. 33.5 University of Newcastle 2004, Summary Statistics 1999-2003, www.newcastle.edu.au/services/statistics/university_statistics/summary_stats.html, accessed on 9/5/05.Summary Statistics 1999-2003, www.newcastle.edu.au/services/statistics/university_statistics/summary_stats.html, accessed on 9/5/05.Summary Statistics


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status, his responsibilities and functions came about in circumstances referred to later in this report.

The Graduate School as noted earlier came within the Faculty of Business and Law of the University. The Pro Vice-Chancellor of the faculty was, during the period relevant to this inquiry, Professor Bernard Carey. Professor Carey was, at all material times, Dr Ryder’s supervisor.

At the time of Dr Ryder’s joining the University a Strategic Plan had been developed. One part of that plan concerned the development or enhancement of the University’s performance in terms of the internationalisation of its programs and international students.

The strategic plan to attract international students to study in Newcastle and to participate in offshore programs was pursued in 2002-2003 with considerable determination. Dr Ryder acknowledged in evidence that the driving factors or incentives for enhancing the Graduate Business School’s ranking in terms of international programs in relation to other Australasian business schools were related to considerations of finance and status. He accepted that the improvement in ranking reflected to some extent the efforts of others and himself to enhance fee-paying student programs in Asia:

[Assistant Commissioner] Q: Just before any other questions, Dr Ryder, I

think it’s clear from your evidence but is this the case that the focus you had in 2003 so far as the program we’re discussing is concerned and similar overseas programs, was that your focus was on post-graduate fee-paying business programs?

A: That’s correct.

Q: Specifi cally, to grow the numbers of students studying at the college that we’re talking about, that right?

A: M’mm M’mm.

Q: You’ve got to say yes or no.

A: Yes, yes.

Q: As I understand it, at this time, there was a ranking of Australasian business schools by an entity known as Asia Inc, which is a magazine, as I understand it, that circulates through Asia, is that correct?

A: That’s right, yep.

Q: The University of Newcastle was ranked, in 2002, in that journal in the bottom three Australian business schools?

A: That’s correct, yeah.

Q: And that within the 12 months or so with your focus and the strategy that had been determined, those rankings were considerably improved, is that right?

A: That’s correct, yes.

Q: That refl ects the intensity, to some extent, of your efforts and those of others to enhance the fee-paying student programs, particularly in Asia, is that right?

A: That’s correct, yes.

Institut WIRA

The relationships that Australian universities have with offshore partner institutions vary in terms of structure. The relevant relationship in this instance, between the University and Institut WIRA, had been in place for quite some time and permitted WIRA to deliver University of Newcastle-accredited curriculum to students enrolled in certain WIRA courses. The arrangement is described on the University’s website as follows:

… the Master of Business Administration (MBA), the Master of Marketing and the Master of Human Resource and Industrial Relations programs are offered in Malaysia, utilising local teaching staff with additional support of guest lectures by NGSB [the Graduate School] academic staff. Students attend classes on weekends, undertaking a more intensive study program that is more appropriate for their circumstances.6

The offshore program that was relevant in this enquiry was the Graduate School’s Master of Business Administration. It was taught in an intensive coursework format jointly by staff of WIRA and the Graduate School. Graduate School staff visited Kuala Lumpur to deliver classes in an intensive mode on weekends and while sessional appointments such as that of Mr Firns are not unusual, most staff who taught in the offshore programs at that time were permanent Graduate School staff.

WIRA students were assessed on coursework, assignment and examination results, with the local

6 www.newcastle.edu.au/faculty/bus-law/fi rs/wirra/index.html.

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lecturer marking the coursework and the visiting Graduate School lecturer marking the assignment and exam and moderating the coursework marks.7

The usual process for recording and distributing the Institut WIRA marks was described by Dr Rugimbana as follows:

The process is that results are processed and approved by the Head of School. Then they are sent to Examinations. An unoffi cial copy is faxed to WIRA. The reason we send unoffi cial results is that WIRA were on a 4-term system up until 2003. Given the tight schedule of classes and exam periods, students needed an indication of their results before they commenced the next term. If we waited until offi cial University periods, students would not have an indication of results in time for commencement in the next term. By the time results are in NUSTAR [the University’s computerised student records system, accessible online] and on the web they are offi cial.8

The University’s Plagiarism Policy

Like most universities the University of Newcastle has, and had at the time these allegations arose, a policy for dealing with student plagiarism. At the time the alleged plagiarism occurred the relevant policy was the Policy for the Prevention and Detection of Plagiarism (“the Plagiarism Policy”) which was introduced in October 2002.9

The Plagiarism Policy, reproduced in Appendix 1 to this report, sets out a standard University-wide procedure for dealing with allegations of plagiarism and included both text and a fl ow chart outlining the expected procedure to be followed when plagiarism is suspected. This policy also introduces the concepts of intentional and unintentional plagiarism. Intentional plagiarism is defi ned as “plagiarism which arises from an intention to deceive” while unintentional plagiarism “arises from a lack of knowledge or understanding of the concept of plagiarism or lack of skill in using the relevant academic conventions”.

The policy states unequivocally that “both intentional and unintentional plagiarism are breaches of the policy”.10

The policy allows for a situation where the suspected offence may be discovered by a “casual” staff member and requires such a person to report the suspicion to the relevant Course Coordinator.

According to the policy, the type of action to be taken against the student depends upon a critical decision at this point about whether the “incident” constitutes “prima facie” plagiarism or “poor referencing skills”. This decision is to be made by the “staff member who discovers the irregularity and/or the Course Coordinator”.11

If the decision is poor referencing then the consequence is to “provide clear feedback to the student” and consider whether it is appropriate to allow the student to resubmit an assignment subject to a penalty. If the decision is that there is prima facie plagiarism then the matter must be referred to the Head of School to pursue by way of investigation, imposition of penalty or, if necessary, referral to the Student Discipline Committee.12

The fl ow chart which sets out the procedure for dealing with instances of suspected plagiarism, and which forms part of the Plagiarism Policy referred to above, is reproduced as Figure 1 on the following page.

Plagiarism by a student can constitute misconduct under the University’s Student Discipline Rules. The relevant provision of the rules is Clause 2(g) which provides that “misconduct” includes “contravening any rule made by the Council in relation to the conduct of written assessment”.13 The “Council” here means the University Council and the relevant “rule” which may be contravened by a student who engages in plagiarism was, at the time of the conduct the subject of this investigation, the Policy for the Prevention and Detection of Plagiarism (2002) section 6.0 headed “Responsibilities and Rights of Students” which requires students to “avoid all acts which could be considered plagiarism”.


7 Information provided to the Discipline Committee by Dr Robert Rugimbana reported in “Report on matters arising from Student Discipline Hearings relating to Plagiarism”, 31 October 2003.

8 ibid.9 The University’s Policy for the Prevention and Detection of Plagiarism was replaced in June 2004 by a new Policy on Student Academic Integrity

(www.newcastle.edu.au/policy/academic/general/academic_integrity_policy_new.html)10 University of Newcastle 2002, Policy for the Prevention and Detection of Plagiarism, approved by Vice-Chancellor on 4 October 2002, paragraph 3.0.11 ibid, Notes on Procedure Flow Chart, Note 2.0 “Plagiarism?”.12 ibid, Procedure Flow Chart and accompanying Notes.13 www.newcastle.edu.au/policy/legislat/discipline/student.htm


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Figure 1: Extract from University of Newcastle’s Policy for the Prevention and Detection of Plagiarism (2002)

Procedure for Investigation and Subsequent Action for Allegations of Plagiarism

Possible Plagiarism?Suspicion that work submitted by a student is not

that student's work (either in part or in its entirety). 1.0

Check the Central Plagiarism File for previous cases of plagiarism by this student. 6.0

Decide on the appropriate penalty or refer the case to the Student Discipline Committee. 7.0

A student may appeal to the Council against a finding of misconduct by the Student

Discipline Committee. The appeal is heard by the Disciplinary

Appeals Committee. 9.0

Advice the student in writing of 5.0the allegation their rights the support available, and invite the student to respond to the allegation.

Provide clear feedback to the student onreferencing guidelines; sources of help for academic writing;Plagiarism Policy; and the overlap between poor referencing technique and plagiarism.

Student permitted to resubmit assignment? 3.0

Advice the student in writing of the outcome of the investigation and, if a penalty has been

imposed, their right of appeal.

If a penalty has been imposed, place a record of the investigation on the Central Plagiarism File. If no penalty has been

imposed place the record on the Central Record of Investigation File.

Head of School or Pro Vice-Chancellor? 4.0

Consider the case on its merits and with regard to

University Policy. Plagiarism has occurred?

N

Y

Student Discipline Committee 8.0

prima facie Plagiarism 2.0

Head of School

N

17

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The policy allows for any of a range of penalties to be imposed if “it is determined that plagiarism has occurred”. They are:

(i) a warning given;

(ii) loss of all or part marks for the assessment item;

(iii) downgrading the fi nal grade in the course;

(iv) imposing a grade of fail in the course;

(v) the exclusion of the student from enrolment in a particular program and/or course(s) permanently or for such lesser period as the Discipline Committee may decide;

(vi) the exclusion of the student from the university permanently or for such lesser period as the Discipline Committee may decide.

Penalties (i)–(iii) may be imposed by the Head of School; penalties (i)–(iv) may be imposed by the Pro Vice-Chancellor; penalties (i)–(vi) may be imposed by the Discipline Committee.14

The policy is structured in a way that prescribes responsibilities for both students and the University. The responsibilities of the University are as follows:

…the University has an obligation to:

n set in place and publicise to all academic staff and students policies and procedures relating to plagiarism;

n inform all parties of their rights and responsibilities;

n ensure that the policies and procedures are implemented consistently across all faculties;

n provide advice to students on how to avoid plagiarism

n provide advice to staff on how to minimise opportunities for plagiarism and how to detect instances of plagiarism

n provide students proper opportunities to answer allegations of plagiarism

n provide and publicise a proper process for students to appeal decisions arising from plagiarism;

n maintain a register of cases of plagiarism for which a penalty is imposed on a confi dential Central Registry fi le with limited access.15

The policy also states that “the Pro Vice-Chancellor and the Heads of School are responsible for the implementation of the policy in each Faculty”.

Presumably in an effort to meet these responsibilities, the course outline provided to students enrolled in Organisational Effectiveness at Institut WIRA in Term 4 2002 includes the following statement:

Plagiarism is the use of another person’s ideas or work without appropriate acknowledgement or credit. Plagiarism may be intentional or unintentional. Intentional plagiarism is the clear intent to pass off another person’s work or ideas as your own for your own gain. Unintentional plagiarism may occur if you do not understand the appropriate way to acknowledge the source of your ideas and information. If you are unsure of the acceptable methods of acknowledgment you should consult with your lecturer, tutor or library staff.

Proven plagiarism is a very serious matter which may result in severe disciplinary action and/or exclusion from the university.16

Mr Firns told the Commission that he had also warned students, in person, about the consequences of plagiarising material in their assignments17 and Dr Marimuthu reported in an email to Mr Day that “both Ian and I have informed the students about the consequences of plagiarism”.18

Detection of plagiarism

Mr Ian Firns had been contracted by the University as a sessional lecturer to deliver, in late 2002 (term 4 of WIRA’s academic year), a course titled “Organisational Behaviour and Effectiveness” (course GSBS6110) to 50 WIRA students undertaking the University’s Master of Business Administration (MBA).

Mr Firns delivered the lectures for the course at Institut WIRA in Kuala Lumpur on 12 and 13 October 2002. He returned to Australia on 14 October 2002. The assessable work for the course consisted of a class presentation and case study worth 30%, an assignment (by way of an essay) worth 35%, and an exam worth 35%. The class presentation was marked by Dr Marimuthu, the Institut


14 ibid, para. 7.0, “Penalties”.15 ibid, para. 4.0, “Responsibilities of the University”.16 University of Newcastle, Course Outline: Organisational Effectiveness GSBS6110 Term 4 2002, p. 11.17 Statement of Mr Firns dated 17 December 2003. 18 Email from Dr Marimuthu to Mr Day dated 31 January 2003.


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WIRA lecturer and the exams and assignments were marked by Mr Firns. The assignments were due on 16 November 2002 and 50 were submitted for marking.

On 28 January 2003 Mr Firns reported to the University that in his opinion 15 of his students had substantially plagiarised the content of their assignments from other sources. Mr Firns came to this conclusion after checking the assignments against subject-related articles and papers published on the internet. Where he found evidence of copying by the students, Mr Firns in a very time-consuming exercise made a handwritten notation of the website address of the copied article or paper on the relevant student’s assignment, a process which enabled ready proof of the plagiarism.

The procedures under the University’s Plagiarism Policy bound the University’s academic staff in circumstances of alleged plagiarism by students. It was to Dr Ryder, as head of the Graduate School, that Mr Firns’s allegation of plagiarism was directed, pursuant to the Plagiarism Policy.

On 3 February 2003, Dr Ryder determined to deal with the WIRA matter in the same manner as he had dealt with an earlier, separate, incidence of plagiarism by offshore students at the Hartford Institute in Hong Kong, and he directed Mr Ron Day, then a lecturer at the Graduate School with responsibility for co-ordinating the offshore programs, to deal with the matter accordingly. However, Mr Day’s involvement in this matter was shortly to cease.

The Hong Kong precedent

Mr Firns also taught at another of the Graduate School’s partner institutions, the Hartford Institute in Hong Kong.

Mr Firns had taught the course “Organisational Behaviour” at the Hartford Institute in 2002 and reported plagiarism in some assignments he marked for that course. In that instance Mr Firns reported his suspicions to the Head of School, Dr Ryder in December and Dr Ryder asked Mr Day for advice about how to deal with the matter. Mr Day suggested that the students be given an opportunity to resubmit their assignments subject to a penalty of 50% of the available mark. He reminded Dr Ryder that the new

(October 2002) plagiarism policy required the Head of School (Ryder) to make the decision about how to proceed under the policy and expressed concern about the delay that the allegations were not being dealt with promptly.

Dr Ryder ultimately communicated his decision on the Hartford allegations in the same week that Mr Firns first mentioned the possibility of plagiarism in the WIRA assignments. On 9 January 2003 Dr Ryder advised Mr Day that the Hartford students would be “provided with clear feedback on referencing guidelines and the plagiarism policy and will be permitted to resubmit the assignment”.19

The option to allow students to resubmit an assignment is described in the University’s 2002 plagiarism policy:

The assessment task should be based on its academic merit. If this results in a Fail grade because of poor referencing technique, the decision may be made to allow the student to resubmit the item, provided that this would not result in inequities for other students. The maximum mark available for a resubmit is a Pass mark of 50%. 20

In this instance, the procedure was followed in accordance with the October 2002 policy and students were given feedback and permitted to resubmit their assignments with a maximum pass mark able to be obtained of 50 per cent. I am by no means of the view that this was a permissible outcome or interpretation of the Policy. In any event there was no evidence before the Commission as to whether any of the decision makers resolved the question as to whether there was “prima facie plagiarism” in the Hartford assignments.

The relevance of the Hartford matter is not so much whether it represented an incorrect application of the 2002 policy. Rather, it is that the Graduate School’s management of the Hartford allegations allowed Mr Firns to observe the enforcement of the 2002 policy by the Head of School in a particular way. It is not surprising that, when the WIRA allegations were later treated differently, Mr Firns had concerns.

19 Email from Dr Ryder to Mr Day dated 9 January 2003.20 University of Newcastle 2002, Policy for the Prevention and Detection of Plagiarism, approved by Vice-Chancellor 4 October 2002, Notes on the

Procedure Flow Chart, Note 3.0, “Opportunity to resubmit”.

19

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Dr Rugimbana intervenes

On 5 February 2003, responsibility for the WIRA matter was taken over by Dr Robert Rugimbana, the then Deputy Head of the Graduate School. On 10 February 2003, acting on the recommendation of Dr Rugimbana, Dr Ryder abandoned his earlier decision to earlier follow the Hartford precedent and instead directed his deputy to arrange a re-marking of the 15 assignments reported by Mr Firns. The re-mark was to be undertaken, at the direction of Dr Rugimbana, by a lecturer at the Graduate School, Dr Rachid Zeffane.

On 11 February 2003, prior to providing the assignments to Dr Zeffane for remarking, Dr Rugimbana directed Graduate School administrative officers to use “white-out” to obliterate Mr Firns’s handwritten comments on the affected assignments. Mr Firns’s comments on three of the assignments were “whited-out” before the administrative officer concerned sought guidance from her supervisor, who directed her to make copies of the balance of the assignments so as to preserve the comments, before continuing the whiting-out task. In the event, due to time constraints only five of the remaining assignments were whited-out (having first been photocopied so as to preserve Mr Firns’s comments), with no whiting-out on the remaining seven assignments.

Dr Zeffane, who did no more than superfi cially check the assignments for plagiarised material (his evidence was that he did not know how to conduct such a check), passed all 15, awarding marks ranging from 19.5 to 29.5 out of a total 35 available marks. As these assignments were worth 35 per cent of the total course mark, the re-mark had the potential to place the balance of the student cohort’s assignments, in regard to which Mr Firns had identifi ed no plagiarised material, at a signifi cant disadvantage.

Dr Ryder failed to notify Mr Firns of this outcome, even to the extent of misleading Mr Firns about the re-marking when they met in Dr Ryder’s offi ce about a different matter on 25 February 2003. Dr Ryder gave evidence in the hearing that during this meeting he told Mr Firns that he was “following university policy” with regard to the WIRA matter, intending by that comment to mislead Mr Firns because “he did not have my trust at that point in time.”

Senior management takes over

Notwithstanding Dr Ryder’s behaviour, Mr Firns shortly discovered the truth from other staff at the University and, incensed at Dr Ryder’s conduct, sent an email on 27 February 2003, to the University’s Vice-Chancellor, Professor Roger Holmes, and to two of the University’s Deputy Vice-Chancellors, Professor Brian English and Professor Ron MacDonald, alleging the handling of the WIRA matter to be “the most serious case of academic misbehaviour I have ever encountered”. The essence of Mr Firns’s allegation was that a “soft marking” approach had been adopted by the Graduate School, intended to favour international, full-fee paying students.

Professor English, then acting as Vice-Chancellor in the short term absence of Professor Holmes, determined to conduct an inquiry into the allegation. Upon his return to the University on 5 March 2003, Professor Holmes delegated to Professor English the management of the investigation, that delegation embracing “the appointment of the external expert … setting the terms of reference [and] bringing forward the results of the enquiry in a timely fashion”. Once the complaint by Mr Firns was lodged with the senior executive of the University, it appears to be beyond dispute that they took over the management of the WIRA matter in its entirety, to the exclusion of Drs Ryder and Rugimbana and seemingly by-passing the Faculty’s Pro Vice-Chancellor, Professor Bernard Carey, who, structurally at least, had line oversight of both Drs Ryder and Rugimbana with regard to the WIRA matter.

The Lamond inquiry

On 12 February 2003, Professor English approached Professor David Lamond, a senior and experienced academic from another university, to conduct the inquiry into the WIRA matter, culminating in his formal appointment to the position on 14 February 2003. Almost from the outset, the independence of Professor Lamond from the University was in question. There were, as the evidence disclosed, matters which also raised serious doubt as to Professor Lamond’s independence, including his professional association with Professor Bernard Carey, the Pro Vice-Chancellor of the Graduate School’s Faculty, his then contemporaneous involvement in professorial appointments at the University, and his involvement with Dr Ryder in the development of a new course to be offered by the Graduate School. So concerned did Professor English become at the



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eroding perception of the independence of Professor Lamond that, on 14 March 2003, he instructed Dr Stephen Thompson, a solicitor with the law fi rm Sparke Helmore, “to attend and to observe the investigation to ensure that due process and the requirements of natural justice are observed.”

Professor Lamond commenced his investigation on 17 March 2003, and reported to Professor Holmes on 28 March 2003, that his investigation had found that “the University has properly exercised its responsibilities under [the Plagiarism Policy]” and that:

whilst there is no evidence that anyone tried to subvert the policy, some staff [namely Drs Ryder, Rugimbana, Zeffane and Mr Day] did not properly exercise their responsibilities in regard to knowing the policy and acted on the basis of a misunderstanding of the procedures to be followed.

As the evidence before the Commission disclosed, this investigation was fl awed in a number of respects.

Professor Holmes and Professor English fi rst met to discuss the “Lamond Report” (as Professor Lamond’s report on the fi ndings of his inquiry became known) on 31 March 2003. At this meeting Professor Holmes decided that the full report would not be further published, even to the extent of successfully barring access to the document by the University’s Chancellor and Deputy Chancellor, and by members of the University’s governing body, the University Council. A very short “media release” by Professor English, containing the fi ndings quoted above, was at that stage the only generally available information as to the content of Professor Lamond’s report.

What followed this was a prolonged period of inaction on the part of the University’s most senior managers, Professors Holmes and English, from 1 April 2003 to 11 July 2003, in relation to any further dealings with the assignments. Professor Holmes claimed that during this period he was waiting for a “report” from Professor English. Professor English on his evidence considered that his role in the WIRA matter was complete. In the event, no steps were taken to have the assignments reviewed or in any other way dealt with until 11 July 2003, during which time Dr Zeffane’s marks stood as the final marks and, as a consequence, at least one of the affected students graduated with an MBA degree.

Media exposure

On 8 July 2003, contact was made with Professor Holmes (just prior to Professor Holmes’s departure overseas) by Mr Nick Rushworth, the producer of the Nine Network’s Sunday television program, who requested that Professor Holmes participate in a pre-recorded interview concerning the University’s handling of the WIRA matter. The request was passed on to Professor English, who declined to be interviewed in place of Professor Holmes. On 3 August 2003, Nine broadcast its Sunday program concerning the WIRA matter. Sunday contained an interview with Mr Firns, who alleged that the Lamond inquiry was a “white-wash” of the mishandling of the WIRA matter by the University – “soft marking” was compounded by “cover-up”, and now more widely exposed.

For the University’s part, on 11 July 2003, Professor English, then acting as Vice-Chancellor in the temporary absence of Professor Holmes overseas on University business, wrote to Professor Carey seeking Professor Carey’s advice as to “what action, if any, you intend to take” in relation to what he identifi ed as to outstanding matter of the assignments. Professor Carey replied, recommending that the assignments be referred to the University’s Discipline Committee.

On the same day Professor English issued a media release titled “Final Report on Handling of Allegations of Plagiarism”.

Referral to a Student Discipline Committee

On 15 July 2003, Mr Firns’s allegation of plagiarism by the WIRA students was referred by an acting Vice-Chancellor Professor English, in accordance with the Plagiarism Policy and after discussion with Professor Holmes prior to his departure overseas, to a Student Discipline Committee, a committee comprised of University academics and a student representative tasked by referral from the Vice-Chancellor to inquire into allegations of student misconduct.

The Student Discipline Rules of the University provide for Student Discipline Committees to be convened by the Vice Chancellor under a permanent Chair. In relation to these events Professor Linda Connor had been the Chair since February 2003. The Rules provide for the remaining Committee members to be appointed ad hoc from various sections of the

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University as each Committee is convened. (Ref: Clause 4 Student Discipline Rules).

The Discipline Committee’s investigation, which included the engagement of Deloitte Touche Tohmatsu to review the assignments for plagiarised content, confi rmed to a large degree Mr Firns’s allegation. The review by Deloitte Touche Tohmatsu had disclosed plagiarised content, in varying degrees, in 12 of the 15 assignments identifi ed by Mr Firns. On 31 October 2003, the Discipline Committee provided its report to Professor Holmes, recommending that penalties be imposed on the affected students (apart from the abovementioned student who had already graduated, the awarding of whose degree was determined by the University to be irrevocable), which largely required those students to rewrite and resubmit their assignments, subject to an imposed limit on the maximum mark that could be awarded. By 10 December 2003, the process was complete and the affected WIRA students had received their fi nal marks for “Organisational Behaviour and Effectiveness”.

Three segments of events

The events outlined above may for convenience be considered as falling into three segments:

n The fi rst segment relates to the claim by Mr Firns that 15 assignments contained plagiarised material and the subsequent actions of senior university offi cers, in particular, Dr Ryder, Dr Rugimbana and Dr Zeffane in acting contrary to University policy by effectively ignoring Mr Firns’s allegations and permitting the assignments to be re-marked with no fi nding on the plagiarism issue presented by Firns.

n The second segment relates to the establishment and conduct of what became known as the “Lamond inquiry” to investigate allegations that university offi cials had acted improperly in the handling of Mr Firns’s allegations. The Lamond inquiry itself became the subject of allegations of “white-wash” and “cover-up”.

n The third segment relates to the investigation or lack of investigation, following receipt of the report of the Lamond inquiry, by senior management of the University of an alleged cover-up of Mr Firns’s allegations. This therefore involved the question of a possible “cover-up” by some members of senior

management of the plagiarism issue itself and the conduct of Dr Ryder and others in dealing with the plagiarism allegations by the irregular re-marking procedure.

Each of these will be examined in the following chapters.

Chapter 2: Background 21


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The University’s handling of the plagiarism allegations in the months of February and March 2003 was notable for at least two reasons. First, the avoidance by those with the responsibility for responding to Mr Firns’s allegations of breaches of the University’s proclaimed policy on plagiarism as well as of the prescribed procedures to deal with plagiarism. Second, the consistent unwillingness by a number of persons to pursue anything approaching a constructive and vigorous investigation of Mr Firns’s allegations.

The avoidance manoeuvres which side-tracked the University policy on plagiarism meant that responsible management within the School and the Faculty failed to take any steps to guard and protect the University’s academic standards and processes. The approach which they pursued was indeed one that involved “soft marking”. The re-marking of the assignments that had been identifi ed by Firns as affected by plagiarism was undertaken on an entirely unprincipled and invalid basis. Dr Ryder acknowledged in evidence that by adopting such a course no investigation of the plagiarism allegations as envisaged by the policy provisions would then occur.

It will be necessary to identify and discuss some of these remarkable events in greater detail but it is suffi cient at this point to summarise some of the more notable factual matters as including the following:

(i) The removal of Mr Day on 3 February 2003 as Offshore Coordinator prior to the unauthorised re-marking direction and the appointment of Dr Rugimbana to take over that position. One would have expected such an important decision to have been recorded but it was not;

(ii) The signifi cant decision made on 10 February 2003 during a short meeting between Dr Ryder and Dr Rugimbana to have the assignments re-examined by another marker which then resulted in the re-marking of the assignment without penalty or sanction for plagiarism. This decision to proceed with the re-marking approach contrary to policy was not recorded;

(iii) Dr Rugimbana’s assessment of the assignments to the effect that they did not constitute cases of plagiarism but that the assignments merely contained referencing problems. That assessment and the basis for it were not documented in any contemporaneous record.

(iv) The “fresh” review in February 2003 undertaken by Dr Zeffane did not utilise or employ techniques or methods designed to identify plagiarism;

(v) The whiting-out of some of Mr Firns’s comments on assignments he claimed were affected by plagiarism before they were sent to Dr Zeffane;

(vi) The failure by Dr Zeffane to identify the methodology and basis for his conclusion that the assignments suffered only from what he termed “referencing problems”;

(vii) The failure by Dr Ryder himself to examine the assignments and/or ensure that a rigorous investigation was undertaken into the allegations made by Mr Firns and his reliance upon Mr Day’s recommendations;

(viii) Dr Ryder’s deceptive communication with Mr Firns on 25 February 2003 when he failed to disclose or mention to Mr Firns that a re-appraisal/re-marking of the assignments had already taken place.

(ix) Dr Ryder’s acceptance, without any supporting material, of Dr Rugimbana’s recommendation for the re-marking process and of Dr Zeffane’s re-assessment.

(x) The failure of senior staff to recognise the impact of the delay in dealing with the allegations on the University’s stated obligations to respond to students in a timely way;

(xi) The failure of Drs Ryder, Rugimbana and Zeffane to recognise that re-marking only 15 of the 50 students who had submitted assignments was in breach of an underlying principle of University policies that all students will be treated fairly and without prejudice in the assessment of their work.

(xii) The absence of contemporaneous documentation of important decisions, recommendations or directions concerning or relating to the re-marking process in addition to the decisions referred to in (i) and (ii) above is a remarkable feature of the history of this matter.

This last point relates in particular to the recommendation of Dr Rugimbana for a re-appraisal of the assignments, to the basis for the decision of Dr

Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students

23

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Ryder to authorise that course of action and to the methodology and findings of Dr Zeffane. Additionally, there were no written terms of reference provided to Dr Zeffane for his review nor did Dr Zeffane possess any expertise in detecting plagiarism. The absence of documentation on important administrative and management decisions represents a serious departure from principles of transparency and accountability.

Mr Firns’s allegations

In bringing this matter to the attention of the Commission, Mr Firns provided the text of his email of 27 February 2003 to the Vice-Chancellor and Deputy Vice-Chancellors. The relevant parts of this email allege that:

… after Ron Day had been relieved of his responsibility in this area someone else – I do not know who – instructed administrative staff to ‘white-out’ all my comments and the marks I had placed on the offending papers from WIRA. These papers were then given to a member of the University staff – I do not know who – to mark. That person was clearly not as professional as I was in the approach he or she took to marking the papers, as it seems he or she failed to realise that there was plagiarism in these cases. Marks were awarded ranging from just over 50% to just over 80%. I understand that these were recorded as offi cial results and that many, if not all, of the students concerned have since been allowed to graduate.

…

I was not told that this exercise was happening … Ron Day was not told. It seems that Professor Ryder21 was not told, although responsibility for disposal of the issue rested with him.

Mr Firns described these events as “the most serious case of academic misbehaviour I have ever seen” and expressed the view that it:

undermines fundamental academic values and has the potential to damage Australia’s education export industry. It has the potential to seriously damage the University’s standing and it has the potential to adversely affect my own standing and that of my fi rm. 22

Mr Firns continued in his complaint to the Commission that the University’s inquiry into his allegations “proved to be a whitewash. The findings were untenable. Lamond is a close associate of Bernard Carey, Ryder’s boss”.

Implicit in these allegations and increasingly explicit in Mr Firns’s correspondence with the University was his concern that the University deliberately avoided dealing with the question of whether there had been any plagiarism at all. His belief was based on the fact that the assignments were re-marked rather than dealt with according to the plagiarism policy, that nobody ever checked the website addresses he had noted on the assignments (indeed some had been “whited-out”), and that Professor Lamond’s terms of reference did not include the question of whether there had been plagiarism.

The interest of the Commission in these events is whether they point to corrupt conduct as defi ned in sections 8 and 9 of the ICAC Act. In this matter, the Commission was concerned with whether there had been corrupt conduct on the part of staff responding to Mr Firns’s report of plagiarism and an attempt by the University to use Professor Lamond’s inquiry to hide this conduct.

It is clear that re-marking the assignments was not an option provided for in the University’s 2002 Policy on the Prevention and Detection of Plagiarism which was in force at the time of the relevant events. Whether the reasons for not complying with the policy can be attributed to corrupt conduct is not so clear. Consequently the Commission undertook enquiries to establish whether there was any corrupt conduct involved in the various components of the action ultimately taken by the University, namely:

n deciding to re-mark the assignments rather than follow the recommendation of Mr Day

n ‘whiting-out’ Mr Firns’s notations on the assignments that he had marked with zero

n removing Mr Day from the position of Coordinator of Offshore Programs

n arranging the Lamond investigation

n not considering the question of plagiarism.

They are reported on the following pages in chronological order.

Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students Chapter 3: The response of the Graduate School to allegations of plagiarism by WIRA students

21 Dr Ryder had the courtesy title of Professor while he was Dean of the Business School, and is referred to as Professor Ryder by several of those who gave evidence to the Commission.

22 Email from Mr Firns to Professors Holmes, English and MacDonald, dated 27 February 2003.


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Initial steps in dealing with the plagiarism

When Mr Firns reported to Mr Day his prima facie belief that he had found plagiarism, Mr Day, then in the de facto role of course coordinator, forwarded Mr Firns’s email to the Head of School, Dr Ryder. These actions accorded with the University’s plagiarism policy. In the same email, Mr Day asked Dr Ryder how he would like the allegations handled and reminded him of the approach taken in respect of the allegations of plagiarism against students at the Hartford Institute in Hong Kong.

When he was advised of the allegations against the students and the action proposed, Dr Marimuthu emailed Mr Day and Mr Firns on 30 January 2003 asking for the students to be “reviewed more generously”.23 Mr Firns responded to Dr Marimuthu’s email on 1 February 2004 clearly setting out his view of the students’ conduct and the application of the policy:

In each case … the student appears to have plagiarised all of the material he or she has presented as his or her own work. In most if not all cases the sources were not included in the reference list, so there was prima facie evidence of intent to deceive. In such cases, the correct mark in my view for the particular submission is zero … This mark, however, is preliminary, rather than fi nal.

…

Newcastle’s plagiarism policy (attached) requires me to pass all these cases on to the Head of School for him to decide their disposition. That is what I have done. As you can see from the policy I had no discretion in the matter, and I’m afraid you and I now have no further say in it. Paul [Ryder] may allow the students to submit another essay. I would recommend that course to Paul. If he does allow resubmission, the maximum mark would be 50% according to the plagiarism policy. I suspect he will ask someone else to grade the papers if this opportunity is extended to the students concerned. 24

This email correctly states Mr Firns’s role under the policy as a casual, or sessional, lecturer and highlights the need for the Course Coordinator, in this instance,

to decide whether the conduct should be treated as poor referencing, and therefore that one option for consideration under the Plagiarism Policy would be that the students be given an opportunity to resubmit, or as some other form of plagiarism that would warrant other action by the Head of School.

Mr Day told the Commission that on 3 February 2003 Dr Ryder told him in person that the WIRA allegations were to be treated in the same way as the Hartford allegations. Later that day, Dr Ryder advised Mr Day that he would be replaced as Offshore Coordinator by Dr Rugimbana, immediately. On 4 February 2003 Mr Day emailed Dr Rugimbana suggesting that the process for dealing with the WIRA allegations be the same as that applied to the Hartford allegations.

On 5 February 2003 Dr Ryder responded to Mr Day’s email of 30 January 2003 regarding the WIRA allegations agreeing to the process of the students resubmitting their assignments as suggested by Mr Day and stating “as discussed, proceed to deal with this using the same approach adopted in Hong Kong”25. Later that day Mr Day emailed Dr Rugimbana advising that he (Rugimbana) should deal with the WIRA allegations and handed over all documents and records of the Hartford case. The following day Mr Day replied to Dr Ryder that Dr Rugimbana should deal with the WIRA allegations.26

Dr Robert Rugimbana commenced employment at the University of Newcastle in 1989 as an Assistant Administrative Offi cer and later moved into academic positions. By the year 2000 he was a senior lecturer specialising in marketing. In July 2002 he was promoted to the position of Deputy Head of Graduate School. He did not take up duties in that position until January 2003. From that point he worked closely with Dr Ryder. Whilst some members of staff in the Graduate School were unhappy with changes introduced by Dr Ryder, Dr Rugimbana was not one of them. Dr Rugimbana said in his evidence to the Commission that he saw Dr Ryder as working closely with the Pro Vice-Chancellor in implementing the strategic plan.

Dr Rugimbana had obtained a degree many years ago from the University of Dar-Es-Salaam in Tanzania, namely a Bachelor of Science and Education. He took a second degree in the University of NSW in 1982

23 Email from Dr Marimuthu to Mr Day dated 30 January 2003. 24 Email from Mr Firns to Dr Marimuthu dated 1 February 2003.25 Email from Dr Ryder to Mr Day dated 5 February 2003.26 Email from Mr Day to Dr Ryder dated 6 February 2003.

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(Master of Business Administration). He also obtained a PhD in Marketing at Macquarie University.

Dr Ryder was the person who was ultimately responsible for Dr Rugimbana’s appointment as Deputy Director.

Dr Rugimbana left the University of Newcastle in early 2004 having completed a year as Deputy Director. He formally completed his employment on 30 April 2004.

The decision to re-mark the assignments

On 10 February 2003, as part of his new role as Coordinator of Offshore Programs, Dr Rugimbana met with Dr Ryder. Dr Ryder’s recollection of the meeting is that Dr Rugimbana recommended that, rather than offer the students an opportunity to resubmit their assignments or proceed to an investigation of the allegations by the Head of School as the Plagiarism Policy allows, the affected assignments should be marked afresh by a new marker, as “an independent review”.

This is not a reasonable interpretation of any of the options set out in the policy. Despite this major departure from policy neither Dr Rugimbana nor Dr Ryder documented the decision or the reasons for it and neither discussed it with anyone else in the faculty who may have been more experienced in these matters.

Of signifi cance to this decision is that Dr Ryder was the principal decision-maker in determining how the Hartford allegations were handled. Dr Ryder was indeed familiar with the policy and should have recognised the importance of not only deviating from the 2002 plagiarism policy but of documenting the reasons for this departure. Similarly, Dr Rugimbana, in assuming the role of Offshore Co-ordinator, should have made himself familiar with the policy, if he wasn’t already, and should have similarly recognised the importance of documenting a decision to deviate from the policy.

I find that the decision to re-mark the assignments was taken by Dr Ryder on the recommendation of Dr Rugimbana, and that no other individual was involved in the decision. Dr Ryder and Dr Rugimbana gave the Commission several reasons in explanation of their decision to re-mark the assignments. These can be summarised as follows:

n the website addresses provided by Mr Firns did not demonstrate prima facie plagiarism

n Dr Marimuthu, Mr Day and Mr Firns did not think there was plagiarism and therefore there was no plagiarism in the assignments (although there may have been poor referencing)

n the 15 assignments identifi ed by Mr Firns may not have been any different from the others in the course, and

n the assignments may have been inadequately marked or marked too harshly.

These explanations are examined later in this chapter.

Another decision made at Dr Rugimbana’s meeting with Dr Ryder on 10 February 2003 was that Dr Rachid Zeffane, a senior lecturer at the Newcastle School of Business, should undertake the re-mark.

In one statement Dr Ryder says he recommended Dr Zeffane to Dr Rugimbana27 but in his evidence he said that Dr Rugimbana recommended Dr Zeffane, although he said he was “not absolutely certain on this”. In any event, Dr Rugimbana contacted Dr Zeffane by telephone immediately after this meeting to ask if he would re-mark the assignments and both agree that the reason for selecting him was that he had “developed the course and delivered the course offshore”.28 There was no written record made of the decision or the conversations and Dr Zeffane was engaged by verbal agreement. As the discussion that follows indicates, Dr Zeffane was a most inappropriate choice.

Dr Zeffane gave evidence that he visited Dr Rugimbana’s offi ce on 10 or 11 February to collect the assignments for re-marking:

He [Dr Rugimbana] as far as I remember, he was of the view that Ian Firns had made … that 15 students hadn’t done something proper but he [Mr Firns] hadn’t provided evidence and he may be exaggerating this … and that he needed – they needed a re-mark of the assignments.

Dr Zeffane gave evidence that he then had a conversation with Dr Ryder as follows:


27 Submission by Dr Ryder to Professor Lamond dated 24 March 2003. 28 Submission by Dr Ryder to Professor Lamond dated 24 March 2003.


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Paul said that Ian Firns had marked these assignments for GSBS6110 ... [indistinct]. He suspected that 15 students, he’s suspecting — and I use that word because I think I heard that word — he’s suspecting 15 students to have plagiarised, that we are going to white out everything that he’s done and I can’t recall at that time whether he was referring to the list, to the spreadsheet, no entries, “We want you to take these assignments, mark them and give us your fresh opinion on what they are worth”. In other words, I understood my task to assess the assignments. That’s how I approached it.

Dr Ryder did not recall instructing Dr Zeffane to check the assignments for plagiarism:

[Counsel Assisting] Q: Do you say you told him to check the web site addresses provided by Mr Firns?

[Dr Ryder] A: I — I had — there was some discussion about web sites. I can’t — I can’t really recall, you know, any — any detail. But it certainly was acknowledged that the web sites were — had been identifi ed and it needed to be considered.

Q: Did you instruct him to check the web site addresses provided by Mr Firns?

A: I — I don’t believe I gave him a specifi c clear direction along those lines because I was not seeking to give him a detailed briefi ng. I had left that to Dr Rugimbana and I was content to leave it at that.

Dr Rugimbana’s evidence was that he had briefed Dr Zeffane to check for plagiarism in the assignments:

[Counsel Assisting] Q: What was the brief?

[Dr Rugimbana] A: He [Dr Zeffane] was to re-look at the papers and determine whether or not we were dealing with, if you like, intentional plagiarism or inadvertent plagiarism.

Q: Who briefed him to do that?

A: I briefed him.

Q: In writing?

A: No, over the — well, when — when we fi rst talked about it with Professor Ryder —

Q: When did you brief him?

A: It was after the meeting with Professor Ryder.

Q: On what date?

A: I’d have to check — check my notes.

Q: What was the brief that you gave to Dr Zeffane?

A: That we had papers that —

Q: What was the brief, what did you say to him?

A: Yes. I explained to Dr Zeffane that we had papers here that were suspected of plagiarism and would he do a review of those papers and give us a clearer status on those particular papers. Now, the reason I brought that up or rather made the recommendation was, fi rst of all, the lack of source, the lack of what I thought was fi rm evidence. That was the fi rst thing. The second thing is that if you look at, just page 1 for example of this same paper, you will see that there might be one or two lines where he says, this has been stolen from, but there’s - in the same page, you will see a reference being made, by the student, of where they got the material from, on the same page.

Dr Ryder confi rmed that Dr Zeffane returned his “independent analysis” of the 15 assignments to Dr Rugimbana on 19 February 2003.29 He awarded four distinctions, four credits and seven passes. Dr Ryder said that he “amended the grades” 30 for the 15 students on 27 February to refl ect Dr Zeffane’s re-mark.

Dr Zeffane later described his conclusion in a memo to Dr Rugimbana as follows:

My judgement on virtually all of the essays does not indicate that the students had bluntly plagiarised. I concur however with the view that some students lacked knowledge / expertise in methods of proper referencing. 31

Contentions

Both Dr Ryder and Dr Rugimbana put forward a number of contentions to seek to justify the direction to re-mark the relevant assignments. These contentions are examined in some detail below.

29 Submission by Dr Ryder to Professor Lamond dated 24 March 2003. 30 Submission by Dr Ryder to Professor Lamond dated 24 March 2003.31 Memorandum from Dr Zeffane to Dr Rugimbana dated 14 March 2003.

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Contention that Mr Firns had no concluded view of plagiarism

In their evidence before the Commission both Dr Ryder and Dr Rugimbana claimed that they interpreted Mr Firns’s and Mr Day’s emails in early January to mean that they had not formed the view that there was plagiarism in these assignments.

Dr Rugimbana, in his report to Dr Ryder on 24 March 2003, stated:

the correspondence from both Mr Ron Day and Professor Marimuthu clearly cast doubt on the allegation of intent to deceive and instead refer to elements of poor referencing skills, (which can be interpreted as unintentional plagiarism) … Curiously, this appears to be a view expressed by Mr Ian Firns himself in his email to Mr Ron Day and Ms Kyllie Stone dated 8th January 2003.

However Dr Rugimbana, in explaining his interpretation, ignored the fact that the email he quoted was sent before Mr Firns had fi nished marking the assignments and therefore it could not represent his fi nal conclusion. Dr Ryder was directly informed by Mr Firns about his suspicions on 12 January 2003 by an email in which he reported that he was still marking the assignments and that the number suspected of plagiarism had risen to 12. By the time he submitted the fi nal marks in a spreadsheet to the Graduate School on 20 January 2003 Mr Firns had concluded that 15 assignments indicate “what appears to be deliberate serious plagiarism”. He noted:

They will need to be dealt with by Professor Ryder who will probably want Ron Day to look at them in the fi rst instance. My suggestion is that these people be allowed to resubmit, with a maximum possible grade of 50% …

Furthermore, it is clear that Dr Rugimbana was given all Mr Day’s correspondence on the matter so he was equally aware of the views of Mr Firns and Mr Day.

Regardless of any recommendation from either Mr Firns or Mr Day about the action to be taken, the decision about a proper response rested with Dr Ryder under the policy. Even when Mr Day comments, in an email asking Dr Ryder to make a decision about the assignments, “it appears to me again a case of them not having much idea of how to go about referencing properly rather than

copying from another student or a deliberate intention to deceive”32, Dr Ryder was not obliged to rely on their views once they had reported their suspicions of plagiarism to him. Whether Dr Ryder formed the view that the plagiarism was intentional or not, it is clear that the 2002 policy applied wherever it appeared that any type of plagiarism had occurred. As Head of School he was obliged by the policy to take decisive action.

This is not to suggest that Dr Ryder, as Head of School, should have taken any particular course of action in respect of the assignments but in that role, he was obliged by the policy to make some decision in accordance with the policy. The policy allows the Head of School some discretion to investigate the possible plagiarism, to impose a penalty on the students or to refer the incident to the Discipline Committee for disciplinary action. Presumably one of the reasons for the discretion allowed to the Head of School is that some degree of judgement is appropriate depending on the individual circumstances and facts of each matter. For example, one option open to Dr Ryder was to conduct an investigation himself. He could have done this by interviewing the two lecturers Mr Firns and Dr Marimuthu, the coordinator Mr Day, and the affected students.

Contention that there was no evidence substantiating plagiarism

Another reason given for the re-mark was that Dr Rugimbana and Dr Ryder held a view that prima facie plagiarism meant plagiarism substantiated by evidence. Dr Rugimbana in particular maintained in his evidence that anyone reporting plagiarism, such as Mr Firns, is also expected to provide evidence of the plagiarised material:

[Counsel Assisting] Q: The web addresses that he’d put which he indicated was the source of his conclusion that the material had been plagiarism?

[Dr Rugimbana] A: That is correct, because I didn’t see them as being prima facie evidence.

Q: Why not?

A: Because as I told you earlier, it’s like saying, there’s the library.

Q: But that’s nonsense, isn’t it?

A: It is not.


32 Email from Mr Day to Dr Ryder, dated 30 January 2003.


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Q: It is that they are very specifi c references that take you directly to an individual article?

A: That what you’ve just mentioned could be affecting many cases. Do you know why? Because with addresses, and contents of addresses change.

Q: But you wouldn’t know, you didn’t check any of them?

A: That’s what I’m saying to you, it cannot be fi rm evidence, can it?

For Mr Firns’s part, he gave evidence concerning his method of identifying the plagiarised material in the assignments as follows:

[Counsel for Firns] Q: Mr Firns, when you originally were looking at the papers, what was the process that you used to detect the plagiarism?

[Mr Firns] A: Initially, what alerted me to the potential problem was a shift in — in the quality of the language, the - the syntax, the sophistication of the language.

Q: Would it be fair to say that that was the fi rst thing that initiated your response?

A: Yes.

Q: You then compared what you read against your knowledge of various articles and websites?

A: Certainly where there were concepts that — with which I was familiar that were unreferenced, yes.

Q: Then beyond your own knowledge, you then engaged a technique to search the website for various phrases?

A: Yes, I put distinctive words or phrases from the paper in question into the Google search engine.

Q: Has anybody ever asked you any questions in relation to the techniques you’ve adopted?

A: Not that I recall.

Q: In relation to your assessment of the 15 papers — if I might put it at that — other than making the observation of plagiarism, did you engage in any further assessment of the papers once you’d identifi ed the plagiarism?

A: No.

Despite believing that such evidence was necessary neither Dr Ryder nor Dr Rugimbana asked Mr Firns to provide any more material as evidence of his suspicions nor did they attempt to fi nd the evidence themselves. On receiving the assignments from Mr Day, Dr Rugimbana said in his evidence that he had “skimmed through the papers just to get a — out of curiosity to get a sense of the extent of the — of the problem” and noted Mr Firns’s comments including references to websites from which he believed material had been copied. He did not check any of the website references, asserting in his evidence that:

... in that sort of situation, google.com is not a plagiarism-detecting mechanism and really saying you can type in a paragraph and suddenly all these articles fall out. That is a nonsense. If it was so easy, I would have expected that he would have attached those assignments, as every academic does.

Mr Day, on the other hand, told the Commission that in his view Mr Firns had done more than was required of him under the policy in terms of establishing a basis for his suspicions of plagiarism and had not found it necessary to ask for additional evidence.33 The evidence provided by Firns established not one or two assignments with plagiarised material but serious and fairly widespread cases of plagiarism. Professor MacDonald said in evidence:

…a plagiarism of this magnitude that was suggested as Mr Firns said of it a substantial number of papers, is an issue that the University should look at very quickly…

In such a serious case, appropriate action would be as indicated by Professor MacDonald who stated in his evidence to the Commission that:

I think if there were serious and prolonged evidence of plagiarism on the part of particular student where there was a possibility that the measures that would be taken would be fairly extreme…….then it should be the Pro Vice-Chancellor would discuss the matter. I would assume with the Deputy Vice-Chancellor and a formal student discipline committee under the disciplinary procedures would ensue from there.

33 Letter from Mr Day to the Commission, dated 2 November 2003.

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Contention that a re-mark had been recommended by Mr Day

Another reason proposed by Dr Ryder for the re-mark is that Mr Day recommended the option of re-marking the assignments:

I relied on the fact that Mr Day had said in the previous case and again in this one, that they were largely referencing problems and that these problems were present in the other assignments that were being passed.

It is important to note that nowhere in the 30 January 2003 email is the word “re-marked” used nor is it stated that “it is not plagiarism”. The relevant parts of it read:

It appears that the essays that were given zero tended to contain a number of quotes that were strung together (not copied from other students) and some have not cited all sources or not acknowledged/cited them properly. On a quick look through, it appears to me that it is again a case of them not having much of an idea of how to go about referencing properly, rather than copying from another student or a deliberate intention to deceive. Even the assignments that were marked (and received a reasonably good mark) also had some problems with referencing.

What we did in Hong Kong was to make the students re-do the assignment which would be only be [sic] given 50% of the mark originally allocated to the assessment. We also sent out letters to the students regarding plagiarism. Do you want the same thing to apply to these students, or do you want the marks to ne [sic] moderated by someone else (and if so by who?) I will await your decision before emailing Professor Marimuthu.34

This email clearly asks whether he wants to allow a “resubmission” or “moderating”. Neither of these terms means a re-mark and none of the emails from Mr Day that were provided to the Commission mentions the term “re-mark”.

Resubmission here refers to the course of action described in the email, and allowed for by the policy, in response to “poor referencing”.35 The term “moderation” usually refers to a type of norm-referenced assessment that involves the adjustment of marks to reflect the anticipated spread of marks across a cohort of students. It is often “necessary when comparability of scores”36 is required across a groups of students that has been taught in a range of institutions or assessed by more than one marker. The aim of moderation is to “make sure the assessment is fair”37 by removing as much as possible, contextual differences such as individual marking standards. There are several methods for moderating marks including:

n the use of reference or scaling tests for statistical moderation

n the inspection of samples by post

n inspection by a visiting moderator

n external examination

n teacher requested moderation

n group and consensus moderation of internal assessment.38

The Commission asked the University to explain the process of moderation as it is used in the Graduate School and received the reply that the Graduate School:

... do not believe that this is a policy/procedure matter, more practice. At WIRA where the local lecturer marks all of the assignments (except for the exam), a sample of assignments are sent back to the UoN to ensure that the marking standard of the WIRA local lecturer is in line with NGSB [the Graduate School] standards. This is the process that is commonly referred to as “moderation” and it helps to ensure QA.39

This process is refl ected in an email from Dr Marimuthu that mentioned that “Ian has moderated the marks and grades” for the case study that he (Marimuthu) had marked.40


34 Email from Mr Day to Dr Ryder dated 30 January 2003.35 See Appendix 1, “Procedure for Investigation and Subsequent Action for Allegations of Plagiarism” fl owchart in Policy for the Prevention and

Detection of Plagiarism. 36 James R, McInnis C and Devlin M 2002 “Assessing Learning in Australian Universities” extracted on the Centre for the Study of Higher

Education/ Australian Universities Teaching Committee website http://www.cshe.unimelb.edu.au/assessinglearning/06/normvcrit6.html, accessed on 4 May 2005.

37 Government of Western Australia Curriculum Council, “Statistical Moderation” pamphlet http://www.curriculum.wa.edu.au/fi les/pdf/statmod.pdf, accessed on 4 May 2005.

38 Wynne, Harlen, 1994, “Concepts of Quality in Student Assessment” paper presented at the annual meetings of the American Educational Research Association and the British Educational Research Association, quoted in Hagston, Jan, “Moderation: what, why and how?” Goulburn Ovens Murray Adult and Further Education Network http://www.gomacfe.net/docs/moderation_what_why_how.doc, accessed on 4 May 2005.

39 Email from Sally Gordon, Deputy Vice-Chancellor’s Offi ce to the Commission dated 10 March 2003.40 Email from Dr Marimuthu to Mr Day dated 31 January 2003.


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Contention that Mr Firns’s marking of the assignments was defi cient

Dr Ryder and Dr Rugimbana both told the Commission that they believed that the assignments had not been adequately marked or perhaps had been marked too harshly. Dr Ryder gave the following evidence in this regard:

In relation to this matter, the major concern that I had was when Dr Rugimbana took over the responsibility for finalising the grades and he reviewed the assignments and he indicated and showed me a number of assignments where the assignments had not been read fully, that they had been dismissed in Firns’s own comments and in his own handwriting on page 1. The words were used, “This is a blatant attempt to deceive. I will read no further.”

Dr Ryder claimed that this demonstrated that the affected assignments:

had not been assessed — I mean on the basis of the remarks that were given, had not been assessed thoroughly and completely and brought into doubt, into question, the — the assessments that had been made.”

Dr Rugimbana supported this view, stating in his evidence that:

My concerns were that one of the essays was not marked but it was still allocated a zero. The other concern I had was that comments, similar comments had been made in the essays that had zero to the ones that were supposedly perfect.

The logical fi rst step in dealing with the assignments would have been to ascertain whether the assignments contained plagiarised material. Establishing that position would have made the next step clear. If there was plagiarism in the assignments, the options in the policy could have been followed. If no plagiarism were found, then a question concerning a fl awed assessment process would then arise.

It is necessary to deal with the basis or rationale that Dr Ryder asserted in evidence for his decision to direct a re-marking of the assignments. Ryder claimed that Rugimbana had informed him that Firns had not marked all the assignments when he refused to read past page one of some of them (which was in fact not the case) which I will call “the fi rst contention”. He also claimed

Moderation may have been appropriate in this instance if plagiarism was shown not to have occurred and if, as Dr Ryder and Dr Rugimbana told the Commission, the assignments had not been adequately or consistently marked and there were other assignments that appeared to have the same problems as the 15 that were re-marked. However, to be statistically meaningful in that situation, moderation would have to involve the entire cohort rather than just a selection.

There are several reasons why the process devised by Dr Ryder and Dr Rugimbana was not a moderation of marks. The fi rst is that there was only one original marker for the entire cohort so there was no need to balance out different marking standards. Secondly, the entire cohort was not reviewed. Finally, the group that was re-marked had been given ‘provisional’ marks of zero pending a decision about procedure.

If the assignments had been marked at zero on their substantive merits they might have represented a statistical anomaly within the cohort that could have been dealt with appropriately by moderating the marks of the entire cohort. But, because they had been provisionally marked at zero on the basis of the marker’s suspicions of plagiarism they were effectively removed, temporarily, from the cohort.

When Dr Rugimbana and Dr Ryder treated the marks of these students as failures rather than provisional marks they acted as if there were no allegation of plagiarism at all and consequently gave the appearance of trying to avoid the question of plagiarism.

On one view Dr Ryder appears to have confused these ideas and failed to distinguish between the concepts of “moderation” and “re-marking”. Indeed he used different terms at different times to explain the re-marking process that was fi nally adopted. He refers to it variously as “an independent evaluation” and “an independent review”, and as “moderation”. On another view Ryder was improperly seeking to reconstruct events as “moderation” when that process was not in fact in contemplation. The Commission believes the latter is the more likely explanation. Ryder was an experienced academic and understood what moderation involved. As Professor English stated, without equivocation, the process of re-marking engaged in by Dr Zeffane was not “moderation” by defi nition or practice.

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could possibly constitute a basis let alone a justifi cation for his decision. Dr Rugimbana, of course, was not in a position to provide such evidence as he had not taken the trouble to examine the raw material that has been identifi ed by Mr Firns and which was available from the website addresses that had been provided. Nor had he carried out any independent assessment of the assignments.

Contention that the views of Mr Firns and Mr Day supported the decision

Dr Ryder also sought to draw support for his decision in emails from Mr Day and from Mr Firns himself. This report refers to the former a little later wherein Mr Day clearly indicated that his views were based only on a “quick look”. It had not been Mr Day’s role to undertake an in-depth examination of the matters raised by Mr Firns (additionally it was not his area of expertise as he taught accounting, not organisational behaviour).

Mr Firns’s views in earlier emails, even if expressed in terms that were capable of suggesting plagiarism at a low level, were unequivocal once he had completed the marking exercise. The views as ultimately expressed by Mr Firns in his later email cannot provide comfort or support for Dr Ryder’s decision.

Had Dr Ryder, as an offi cer responsible for dealing with the matter, had any diffi culties in understanding Mr Firns’s approach, fi ndings or observations one would expect that he would immediately seek clarifi cation or assistance from Mr Firns himself. However, consistently with his lack of vigour in ascertaining relevant facts on the matter, he at no time either challenged Mr Firns nor sought his assistance. Wilful ignorance on Dr Ryder’s part characterised his whole approach to the matter. Clearly, for extraneous reasons, he had no desire to seek out the truth of the allegations. His efforts were rather directed towards fi nding an administrative solution for dealing with them in a way that would circumvent “due process” as prescribed under the Plagiarism Policy.

Contention that there was power vested in the Head of School

In the Commission’s public hearings Dr Ryder attempted to validate his authorisation of the re-marking of the assignments by reference to a number of alleged powers. The Commission is of the view that the Plagiarism Policy was intractable in its terms and admitted of no additional or residual discretion or power in a Head of

that there were similar “referencing problems” in the other assignments not identifi ed as affected by plagiarism (which will be referred to as “the second contention”). Accordingly, so his explanation went, he was of the view that Firns had not acted consistently in his approach to marking the assignments.

As to the fi rst contention, there was in fact only one assignment where Mr Firns wrote the comment on page one:

I will not read further. This is very clearly intended to deceive me into thinking that this is your work, your words and your ideas. It is not, being stolen from Elizabeth McMillan, who is not among your listed references – http://www.mmd.eng.cam.ac.uk/Sen/pdf.files/part 5-5.

Had Drs Ryder and Rugimbana been minded to uphold the Plagiarism Policy they could have simply decided to return this paper to Mr Firns to be fully marked. They, however, did not even consider doing so. There being only one assignment the subject of what is termed “the first contention” and there being a note identifying prima facie plagiarism in it, that contention, whether alone or taken in conjunction with other matters, provided no justification for the re-marking decision.

As to “the second contention” – the alleged lack of consistency in the marks awarded by Mr Firns over the whole group of assignments as opposed to the smaller group of 15 identifi ed by Mr Firns as containing plagiarised material – it could by no means alter or negate Mr Firns’s fi ndings. In any event the alleged justifi cation is quite untenable as Dr Ryder himself considered that he need only have Dr Zeffane review 15 out of the 50 assignments and had him do so.

The University engaged Deloitte Touche Tohmatsu in September 2003 to review the 15 assignments for plagiarised content and identify the source of that content. This review established plagiarism by the students substantially, although not entirely, as had been alleged by Mr Firns.

On the history of this matter, what is referred to as “the fi rst and second contentions” do not provide either a rationale or a basis for Dr Ryder directing a re-marking of the assignments. These contentions made by him in evidence were, the Commission fi nds, an unsupportable ex post facto justifi cation for his re-marking decision. Dr Rugimbana provided no other evidence to Dr Ryder that



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School as Dr Ryder attempted to maintain. Firstly he contended that a head of school is ultimately responsible for management of each subject in a school and as such it was open to him to obtain “a new and independent assessment”. However, there was no basis established in evidence for a power that overrode the duty on a Head of School prescribed by the Policy. Professor English was emphatic on the matter saying in his evidence to the Commission that “There are no reserved powers” and adding that a Head of School has no power to ignore or act contrary to any University policy. Further, Professor English stated that Dr Ryder had never advised him that he had acted under some other power as Head of School – the matter was never raised until Professor English heard the evidence of Dr Ryder.

Next, Dr Ryder contended that he possessed power as chair of the assessment board. However, an examination of the assessment policy in force at the time of the decision revealed that there was no power to support a decision to re-mark, and enquiries made by the Commission failed to reveal any decision or delegation by the assessment board to Dr Ryder in relation to the WIRA assessments. The Commission notes that none of these alleged powers were relied upon by Ryder in his submissions to the Lamond inquiry.

The explanations given to the Commission by Drs Ryder and Rugimbana as reasons for the re-mark decision are neither plausible nor reasonable and it is diffi cult to understand how people in their positions would make them. It is reasonable to expect that senior academics with managerial responsibilities in the administration of a school of the university should have known how to interpret the term “prima facie” which term Professor Lamond considered may lack clarity. Their common view that it was necessary for Mr Firns to provide “evidence” of prima facie plagiarism is unacceptable. The policy does not require the marker to provide such evidence. In any event Mr Firns had annotated the assignments with the websites where he believed the plagiarised material was taken from.

Dr Ryder’s conduct

Throughout the month of February 2003 Dr Ryder was the responsible offi cer for ensuring that plagiarism allegations were properly considered and dealt with. He had read and understood the University’s policy on plagiarism which had been promulgated in late 2002. He failed to explain or justify his conduct in ignoring the policy and adopting his own approach.

Dr Ryder, it must be said, was a wholly unsatisfactory witness. He gave evidence over several days in both private and public hearings and consistently displayed prevarication and obfuscation whilst answering the questions of Counsel Assisting and some of the presiding Commissioner’s questions. His repeated attempts to rationalise the allegations of plagiarism as amounting to nothing more than poor referencing went beyond the bounds of credulity and displayed little regard by him for truth telling. He conceded in evidence that from the outset he harboured doubts as to the reliability or accuracy of Mr Firns’s allegations but at no stage was there a cogent basis for doing so. He failed to pursue any process even remotely designed to test and examine their accuracy or reliability. His conduct was marked by an attitude of wilful ignorance as to the truth and accuracy and seriousness of the allegations.

Dr Ryder’s handling of the plagiarism allegations raises concerns as to management transparency and accountability in university decision-making and other action. Although he acknowledged that he held responsibility for the handling of the allegations, he sought repeatedly to rely upon his claimed delegation or referral of the plagiarism allegations, initially to Mr Day and then to Dr Rugimbana and Dr Zeffane as effectively absolving him from any requirement to ensure that opinions, fi ndings and/or recommendations were soundly based and lent themselves to objective scrutiny. Rather he sought to rely upon his appointees without requiring any accountability by them in the form of written reports on matters to be investigated and which could provide underpinning support or objective analyses.

Dr Ryder purported to place reliance upon Dr Day’s email of 30 January 2003 as a “report” to him. It is a brief four paragraph email in which Mr Day’s reference to the plagiarism alleged as being one of “improper referencing” is expressed only upon the basis of “a quick look through”. Although Mr Day had been course co-ordinator of offshore programs for some time, he had had no experience in investigating plagiarism. Dr Ryder’s propensity to seek justifi cation for his own conduct in the unsubstantiated opinion of others, including in particular that of Mr Day, displayed a mindset marked by an unquestioning acceptance of what he wanted to hear rather than one objectively intent on seeking out the facts.

The requirement for senior managers to employ processes that are both transparent and accountable was completely disregarded by Dr Ryder. One issue in this investigation has been the determination as to whether

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such failures arose from gross ineptitude on the part of a number of well-educated offi cers of the University, including Dr Ryder, or whether it was part of a deliberate strategy to “bury” the plagiarism allegations for improper purposes. If so, the question then was whether such conduct constituted “corrupt conduct” within the meaning of sections 8 and 9 of the ICAC Act.

The report of Dr Zeffane – an ex post facto document

On 14 March 2003, Dr Zeffane authored a report to Dr Ryder in relation to his re-marking of the assignments. This document was not a proper report - it came into existence two days after media exposure and was obviously produced as a response to it. Dr Rugimbana stated in evidence that he believed he was actually present in the room whilst Dr Zeffane wrote his report.

The report omits reference to any process or methodology that Dr Zeffane employed or to any fi ndings on the plagiarism allegations, and contains bald assertions as to the standards said to have been used in assessing the assignments and to Dr Zeffane’s “judgement”. In most cases Dr Zeffane concluded that the assignments did not indicate that the students “had bluntly plagiarised”. However, it is important to observe that there is no information provided in the “report” upon which such “judgement” was based. From fi rst to last, the report consisted of unsupported assertion.

Two confl icting assessments

Dr Ryder’s approach in obtaining a re-mark produced the result that now two people who had assessed the assignments had diametrically opposed views as to the presence of plagiarism. In those circumstances nothing short of a thorough examination could possibly resolve which view was correct. That, however, was not done. The unsubstantiated opinion of Dr Zeffane was preferred over Mr Firns’s detailed assessment, supported though the latter was by objective material in the form of website addresses. Dr Ryder’s only attempt at an explanation was a reference to Dr Zeffane’s seniority as the factor which led him to accept the Zeffane re-mark over Mr Firns’s assessment.

A fl awed process

These extraordinary events need only be stated to reveal what was plainly a hopelessly fl awed and fallaciously based process.

Mr Firns had, in his review of the assignments, given website addresses at which the plagiarised material could be found and which provided a ready basis for validating his fi ndings of plagiarism. Reference to them would have soon resolved whether Mr Firns or Dr Rugimbana was to be accepted. At no stage, however, did either Mr Day, Dr Rugimbana, Dr Ryder or Dr Zeffane or anyone else take that obvious step in order to ascertain truth in the matter. This gross failure remained totally unexplained by any of them and there is nothing in the evidence that could possibly justify a failure of such signifi cance.

Dr Rugimbana’s conduct

Dr Rugimbana’s involvement in this matter is limited to the month of February 2003 when he took over the WIRA matter from Mr Day, the latter having indicated to Dr Rugimbana on 4 February 2003 that he did not wish to have continued involvement in the matter. Dr Ryder claimed repeatedly that he relied upon Dr Rugimbana’s assessment and recommendation which in turn led to the matter being referred to Dr Zeffane.

In his evidence to the Commission, Dr Rugimbana said that he familiarised himself with the new plagiarism policy which was promulgated in late 2002 and stated:

When the papers were passed on to me, I skimmed through the papers just to get a — out of curiosity — to get a sense of the extent of the — of the problem.

As the discussion in this chapter relates, Dr Rugimbana failed to undertake a proper examination of the assignments. He displayed a propensity for adopting a softer line on the students concerned consistent with the evident wish of Dr Marimuthu. He displayed a dismissive attitude to Mr Firns and to the latter’s assessment. The failure to investigate and the spurious fi nding of “poor referencing” adopted by Dr Rugimbana, Dr Zeffane and Dr Ryder amounted to a side-stepping of the procedures prescribed under the Policy. The Commission says “spurious” for without a factual basis for rejecting the existence of plagiarism and exposing error in Mr Firns’s assessment a contrary view of poor referencing was simply not maintainable.



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On Dr Rugimbana’s review of the assignments he noted the written comments of Mr Firns and that these included website addresses. He accepted when it was put to him that Mr Firns’s handwritten comments were unequivocal in claiming that there was evidence of plagiarism. He agreed that the comments clearly related to plagiarism and not to poor referencing techniques.

When Dr Rugimbana was asked whether Mr Firns’s statements were ever subjected to thorough investigation he replied “not by me”. Nor, one may add, by anyone else. Although the website addresses provided a ready means for identifying plagiarism Dr Rugimbana persisted in evidence in stating the absurd proposition that website addresses were equivalent merely to identifying a library in which source material may be located. It is noteworthy that Dr Rugimbana, having only “skimmed” the assignments, did not himself verify or seek to establish whether the website addresses could identify passages contained in the assignments. Subsequent examination by Commission offi cers of the website addresses noted by Firns revealed that these did indeed take one to the relevant published works.

Had Dr Rugimbana been genuinely interested in properly investigating Firns’s allegations it is clear that he would have taken steps to clarify any doubts or queries with the marker, Mr Firns, himself. In a letter dated 7 March 2003 written by Dr Rugimbana to Dr Ryder he wrote:

“Given that Mr Ian Firns was a casual lecturer … and was back in Perth, the issue of contacting him again did not arise…”

However, in the private hearings Dr Rugimbana agreed that, as part of a proper investigation, it was both a possible and obvious step for him to speak to Mr Firns about his fi ndings and allegations.

Q: The obvious thing to do was to speak to the man. We’ve established that. Why didn’t you speak to him?

A: Certainly, that was a mistake on my part, I accept that.

Q: It was a gross mistake, wasn’t it, not to speak to one of the main players in this whole episode, would you agree?

A: I would.

Q: Can you provide any explanation or justifi cation? If you can’t, just say so.

A: No.

Dr Rugimbana’s letter of 24 March 2003

A letter of 24 March 2003 was written by Dr Rugimbana (in essence an expanded version of his letter of 7 March 2003 to Dr Ryder to which reference is made above) and bearing the heading “Mishandling of Alleged Cases of Serious Plagiarism at Newcastle Graduate School of Business” was later provided to Professor Lamond. This letter is noteworthy in that it indicates that Dr Rugimbana had taken issue with Mr Firns’s allegation of plagiarism after having looked through the assignments in question (he does not refer to the fact that he merely “skimmed” the assignments) and places particular emphasis upon the views that had been expressed by Professor Marimuthu of Institut WIRA. Professor Marimuthu was convinced that the disputed assignments were not cases of intent to deceive but rather were cases of poor referencing skills. It is particularly noteworthy that Professor Marimuthu had not had access to the assignments for the purposes of carrying out an examination of them. His views, upon which Dr Rugimbana placed reliance, were accordingly nothing more than mere assertion. However, Dr Rugimbana in the letter goes on to state:

My own impartial judgement as Deputy Director and based on the information gathered, was that the Newcastle Graduate School of Business was not confronting a case of intent to deceive at Institut Wira. Based on this view I contacted Professor Ryder and requested that we seek a second opinion from an experienced University of Newcastle Academic by way of a re-mark of the assignments. [emphasis added]

In reporting on his “impartial judgement” it is also noteworthy that Dr Rugimbana does not identify or refer to the material relied upon by Mr Firns nor was there error in Mr Firns’s assessments identifi ed. The letter of Dr Rugimbana was not a balanced one in that it misrepresented Mr Firns’s views as statements as to whether there was evidence of deliberate plagiarism. Whilst Mr Firns in his earlier emails expressed the view that some students had displayed “abysmal ignorance”, by the time he had marked all the assignments he plainly was of the view that plagiarism had occurred. Dr Rugimbana conceded in private hearing that the fi nal paragraph of his letter to Dr Ryder of 24 March 2003 misrepresented Mr Firns’s position.

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Dr Rugimbana claimed that he had two communications with Dr Zeffane before the re-marking process commenced. One was a face-to-face meeting and the other was by telephone. In the initial contact he said that he requested Dr Zeffane if he would be available to conduct “a complete review of some of the papers that we had which we suspect of plagiarism ...”.

It was put to Dr Rugimbana in private hearing that in a meeting over lunch he said to Dr Zeffane that Mr Firns had made allegations but that no evidence was provided and that Mr Firns was exaggerating. Dr Rugimbana denied the alleged conversation. He instead claimed that, when Dr Zeffane picked up the assignments from him he told Dr Zeffane basically that the assignments were suspected to contain plagiarised material. Dr Rugimbana stated that after a luncheon meeting Dr Zeffane had said that he was prepared to mark the assignments and would not be biased by the written comments of Mr Firns.

In addition to failing to recognise the existence of prima facie evidence, Dr Rugimbana’s own so-called “assessment” hardly fi ts that description, for he failed to perform any check on the given website addresses, maintaining that “that wasn’t my role”. Although it is true that it was not necessarily his role to personally undertake a full and fi nal examination of the assignments, he in fact purported to undertake a form of inquiry as evidenced by his confi dential report of 24 March 2003 which refers to “the process” and procedures undertaken in what he described as his “investigation”.

It would seem that Dr Rugimbana clearly understood before the important date, the 10 February 2003 (the date upon which he had a discussion with Dr Ryder) the views and stance adopted in the matter by Dr Marimuthu of Institut WIRA. As earlier noted it was between 5 and 10 February that he telephoned Dr Marimuthu. The latter, without having examined the assignments, expressed the view to Dr Rugimbana that most of the diffi culties were concerned with referencing problems (as distinct from plagiarism). On 11 February 2003 Mr Marimuthu sent an email to Dr Rugimbana in which he stated:

As I have explained to you it is important that we keep the failure rates as low as possible, without compromising the academic standards, of course. Our experience in the last six years shows that the students are obtaining good grades in their examinations.

I note that this particular email had not been provided by Dr Rugimbana in response to a request for relevant

documentation to be supplied to the Lamond inquiry. When he was asked about this signifi cant failure Dr Rugimbana stated in evidence that:

…I didn’t remember I had it.

He had no other explanation to offer.

Giving evidence in public hearing, Dr Rugimbana denied that the reference in this email suggested that there had been a discussion between them about failure rates.

However, in the same email Dr Marimuthu wrote:

First let me congratulate on your new position and thank you for your call. We really appreciate your efforts to sort out the high failure rates in the Corporate Finance and Organisational Effectiveness Courses. [emphasis added]

Dr Rugimbana in evidence clarifi ed that the assignments that had been marked by Mr Firns were part of the Organisational Effectiveness Course. He could not satisfactorily explain what “efforts” he was being thanked for in the email. He stated that he in fact did nothing to help sort out the high failure rates, contrary to what the email states, and that the fi rst sentence of the quoted paragraph was therefore a nonsense. Dr Rugimbana agreed that it was quite inappropriate for Dr Marimuthu to be discussing in the email at that time attempts to keep down the failure rates before an investigation into the plagiarism allegations had been completed.

When asked what he had done “to sort out the high failure rates” as per the email, Rugimbana replied “nothing”. He repeated that the reference to his efforts in that regard was “a nonsense”. He later said “I don’t know what I did” and a little later “Because I didn’t do anything”.

It is suffi cient here to observe that the email reveals that discussions had taken place on the very subject of keeping failure rates low as a matter of signifi cant concern rather than attention being directed towards the need to enhance academic standards, the corollary of which would normally be an increase in student performance. It is true to say, as Counsel Assisting the Commission indicated in submissions, the contemporaneous evidence of events fails to reveal that there were any attempts by Dr Rugimbana or Dr Ryder to protect academic standards in this matter. Their actions bespeak a “soft” approach to what was a most serious threat to those standards.



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The evidence of Dr Rugimbana in relation to the contemporaneous email from Dr Marimuthu thanking him for his efforts was unsatisfactory in the extreme. It was after this call that Rugimbana recommended the re-marking to Ryder. The Commission does not accept Rugimbana’s evidence that he did nothing in response in relation to sorting out the high failure rates resulting from Firns’s assessment. The inference from the email sent by Marimuthu on 11 February is that Rugimbana did direct his efforts to fi nding a way to avoid Firns’s assessment and in fact found it by arranging with Dr Ryder for Dr Zeffane to re-mark the assignments on their face without any requirement or direction to Dr Zeffane to check for plagiarism.41 In doing so, the Commission fi nds that Dr Rugimbana deliberately set out to avoid the University’s plagiarism policy and in doing so acted improperly and in breach of his obligations to have the allegations thoroughly and properly investigated.

Whiting-out Mr Firns’s comments

It has been discussed from time to time in this report that the history of this matter is marked by extraordinary events for which, in many cases, there was no rational explanation. The whiting-out of comments on some of the assignments before they were handed to Dr Zeffane to undertake the re-marking exercise represents another extraordinary episode.

The evidence is that on 11 February 2003, Dr Rugimbana gave an administrative offi cer the 15 affected assignments with an instruction to “white-out [Mr Firns’s] comments” in preparation for a re-mark, “so they were not biased”. That administrative offi cer passed the task on to a second administrative offi cer who approached Dr Rugimbana for confi rmation of his instructions. Dr Rugimbana confi rmed that he wanted Mr Firns’s comments on the assignments to be whited-out. The second administrative offi cer commenced to white-out the comments but became so concerned about this exercise that she approached her supervisor after applying white-out to only three of the assignments. The supervisor advised the second administrative offi cer to make copies of the assignments before continuing with the whiting-out exercise, which she then did for the fi ve further assignments that were subjected to whiting-out.

As a result, there were fi ve assignments which were photocopied and then comments whited-out on the originals preserving the comments on the photocopies. There were seven assignments where there was no whiting-out at all. The three assignments of which no photocopies had been taken before the comments were whited-out were subjected to forensic examination by the Commission and the comments were recovered and recorded. Accordingly Mr Firns’s original comments and conclusions were, by this means, available for subsequent analysis.

Dr Rugimbana in evidence stated that he had instructed that whiting-out be undertaken in order to present Dr Zeffane with clean copies without the previous marker’s comments which, he considered, could bias the process. He had no intention, so he stated, that the whiting-out process would be undertaken on the original assignments and that this had occurred as a result of a miscommunication with the Graduate School’s administrative staff who were to undertake the whiting-out. Dr Rugimbana conceded in his evidence that his instructions did not clearly require copies to be made of the assignments and stated that his failure to ask for copies to be made was simply “a very unfortunate breakdown in communication”.

It is understandable that when Mr Firns heard about the whiting-out of his comments he was concerned that evidence of plagiarism was in effect being destroyed or removed and in due course it received some attention in media reports on the plagiarism issue.

The Commission has considered the evidence on this matter and found the evidence of Dr Rugimbana in relation to it at times quite unsatisfactory. The ultimate question simply is whether or not Dr Rugimbana did intend to destroy evidence as part of a sinister exercise or arrangement intended and designed to produce a more favourable marking outcome than that resulting from Mr Firns’s assessment of the assignments.

In resolving such a potentially grave matter it is essential that the Commission do so by applying the principles concerning the standard of proof that bind it. The Commission also has to consider whether there is clear evidence which contradicts Dr Rugimbana’s account and his emphatic denial. The Commission must also have regard to the matters raised in the submissions of counsel who appeared for Dr Rugimbana. The Commission does not believe that the evidence permits a conclusion that Dr Rugimbana acted in this matter with a deliberate intention to destroy evidence.

41 In his evidence Dr Rugimbana stated that he did not specifi cally ask Dr Zeffane to look at the website addresses on the assignments.

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It is clear that the matter was poorly handled by him from a management perspective. A person of his standing should have been aware of the absolute importance of maintaining an accurate documentary record both as evidence of the action taken and to ensure the integrity of the re-marking process that he was supervising. His direction created a stressful dilemma for staff which ought not to have occurred had Dr Rugimbana acted competently in giving clear directions. It is to the administrative staff ’s credit that they took the action they did to protect the assignments.

Dr Zeffane’s conduct

When Dr Zeffane assessed and re-marked the assignments he had not read the University’s current policy for the detection and prevention of plagiarism. He re-marked the 15 assignments in a little over two hours. This was in contrast to the time and effort expended by Mr Firns when he had assessed them in January 2003. Dr Zeffane said in his evidence that he attempted a very limited check on some of Mr Firns’s references to plagiarised material, as follows:

There were 15 assignments, they were all — they were all suspected of plagiarism, to me, suspected. What I did, I took three assignments, I can’t tell you which ones but I took three assignments, I read them, just to get a feel of whether the students had actually attempted to answer the topic and I was very concerned at that time that there was a topic and that was a topic to be addressed. So I went on the web and frankly, I didn’t know what to do because I put in three words to see whether there was something that I could get from the web and I banked on that because in my mind at that time, when I looked at the three assignments, I’m looking at assignments that are suspected for plagiarism but I cannot continue marking them as suspected because I had established in my own mind, having read the introduction of the fi rst few paragraphs – and I admit it wasn’t an entire essay – that these assignments that I have read were not clearly plagiarised in terms of being lifted entirely from something, from another source.

Dr Zeffane said that it was not his usual practice to check assignments for plagiarism, and that he had not been instructed to undertake such checks in the present instance:

[Counsel Assisting] Q: Did you fi nd plagiarism in any of them?

[Dr Zeffane] A: I suspected that there was too much paraphrasing, yes. I suspected strongly that there was some paragraphs that were inappropriately referenced —

Q: No, no, I didn’t ask that. Did you fi nd any assignment which, in your judgement, had plagiarised material?

A: Okay. Now, this is where — I suspected assignments, yes. Did I check? No. Why didn’t I check? I wasn’t instructed. And now, I can elaborate. After that —

…

Q: Are you saying that prior to February 2003, when you marked a student’s essay, you didn’t look for plagiarism?

A: Not specifi cally, no. No.

Q: You had been alerted that there was a possibility of plagiarism in these essays?

A: Yes.

Q: What specifi c steps did you take about purported plagiarism in these essays?

A: I did not check thoroughly, no.

The evidence revealed that the possible adverse impact that Mr Firns’s assessment could have was a matter of concern to at least Dr Zeffane and Dr Rugimbana. A copy of the email from Marimuthu dated 31 January 2003 to Mr Day (Exhibit 8) was later supplied to Dr Zeffane. The email contained the following statement:

The point I am trying to make is that our students have been doing quite well. But now if word gets out that it is a very tough course and large numbers of students are failing, then we will have a tough time to recruit students in a highly competitive market.

Dr Zeffane, in Rugimbana’s presence, wrote a note alongside this passage. The note reads “This is the CRUX! Ian does not understand this.” (“Ian” refers to Ian Firns). This is a remarkable comment by one who is supposed to be adopting a professional and independent approach. It suggests that Dr Zeffane’s mind had fi xed upon an extraneous commercial factor and was not dealing with the matter strictly on its merits. It is yet further evidence of the fundamentally fl awed re-marking process.



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Dr Zeffane said he was aware that there had been an allegation of plagiarism but did not attempt to more than superfi cially and in a very limited manner search for plagiarised material whilst assessing the assignments. He claimed that he told Dr Rugimbana that he had not checked the websites. This occurred some time before the media publicity of 12 March 2003.

It is important to be clear as to the basis upon which Dr Zeffane was asked by Dr Rugimbana to re-mark the assignments. On Dr Zeffane’s evidence in the Commission’s private hearings, Dr Rugimbana clearly sought to infl uence him by throwing doubt upon the validity of Mr Firns’s assessment. Dr Zeffane’s evidence was that Dr Rugimbana had said “Ian Firns had identifi ed some plagiarism but there was no evidence of plagiarism”. That statement of course was factually incorrect as has been noted earlier. Dr Rugimbana denied in the private hearing that he had made the statement to Dr Zeffane. However, on this issue the Commission prefers the evidence of Dr Zeffane to that of Dr Rugimbana. The latter the Commission found a most unsatisfactory witness. Dr Zeffane must be criticised for what can only be described as a completely compliant and unquestioning attitude to his role, particularly given the fact that he was aware that the 15 assignments that he was being asked to assess had been previously assessed as containing plagiarised material. As to the abovementioned statement attributed to Dr Rugimbana, however, the Commission accepts Dr Zeffane’s evidence. The statement is certainly consistent with the dismissive attitude that Dr Rugimbana had displayed throughout towards Mr Firns’s allegations. According to Dr Zeffane, Dr Rugimbana also told him that Firns had refused to mark some assignments and that he (Rugimbana) wanted a re-mark done. He added that there was some urgency in resolving the matter. This meeting was said to have lasted for some ten to 15 minutes. Dr Zeffane stated that whilst waiting for the assignments on 10 February 2003 he and Dr Rugimbana had lunch together during which the latter said that Firns had not provided evidence to support his allegations and “he may be exaggerating this”. Dr Rugimbana denied making this statement to Dr Zeffane but again partly for reasons already expressed, the Commission prefers the evidence of Dr Zeffane on this matter to that of Dr Rugimbana. In addition, the statement by Dr Rugimbana as to exaggeration fi ts with the view that he actually held and has expressed, namely that in his view there were referencing problems not amounting to plagiarism.

Dr Zeffane told the Commission that he had a conversation with Dr Ryder soon after this. He said in evidence that Dr Ryder said “We want you to take these assignments, mark them and give us your fresh opinion on what they are worth”. Dr Zeffane told the Commission he understood his task was to “assess the assignment”. In later evidence Dr Zeffane said that Dr Ryder had also expressed strong views on the matter before Dr Zeffane embarked on the re-marking:

Q: Did you understand from what Professor Ryder had said to you, that he didn’t want you to find plagiarism?

A: In the way he was of the strong view that plagiarism had been — not an allegation — a suspicion that had never been verifi ed. One had no evidence. There was no support material and I’m asked to do a job of marking.

Although a proper and independent review of the assignments was essential, it is plain that Dr Ryder sought to implant fi rmly in Dr Zeffane’s mind that plagiarism as found by Firns was not supported by evidence. Dr Ryder was acting improperly in stating that there was no support for Firns’s allegations and in not requiring Dr Zeffane to specifi cally and diligently investigate the allegations.

It is clear then that Dr Zeffane was not required by Dr Rugimbana or Dr Ryder to investigate Firns’s allegations nor the evidence that he had cited in support of them. He in other words was expected to mark the assignments without specifi cally seeking to identify plagiarism. That he was not so instructed refl ects adversely upon both Dr Rugimbana and Dr Ryder who clearly did not want the allegations fully and properly investigated and tested.

Surprisingly, Dr Zeffane stated in the private hearings that if he was not instructed to “scrutinise for plagiarism I wouldn’t, but if instructed to specifi cally look for plagiarism, I would”. He stated that he suspected plagiarism with some assignments but added:

Did I check? No. Why didn’t I check? I wasn’t instructed….

When challenged over the statement by Counsel Assisting, Dr Zeffane gave the surprising evidence that prior to February 2003 when he had marked a student’s assignment he did not specifi cally look for plagiarism. With the assignments in question, he said:

I did not check thoroughly, no.

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Following media publicity about the matter on 12 March 2003 Drs Ryder and Rugimbana asked Dr Zeffane to write a report on his re-marking of the assignments (the report of 14 March 2003 to which earlier reference has been made). In it he wrote:

2. My judgement on virtually all of the essays does not indicate that the students had bluntly plagiarised. I concur, however, with the view that some students lacked knowledge/expertise in methods of proper referencing (including the use of the well-known Harvard method)….

Having been shown the plagiarised passages identifi ed through the review by Deloitte Touche Tohmatsu in September 2003, Dr Zeffane responded:

Yes, I feel I have done a bad job……and………had I been given the resources that this person had I think I would have done a much better job.

However, he admitted that he had the internet available to him to undertake searches but then added:

…I wouldn’t have known how to go about fi nding a paragraph…

He added that:

…my brief was not to identify plagiarism in these assignments…

He ultimately agreed that he had had the same resources available to him to identify plagiarism as Firns had had. He was, however, unable in his evidence to provide any satisfactory explanation as to why, knowing that there was a suspicion of plagiarism, he had not carried out any investigation to determine the matter, including checking the website addresses. He repeated that he saw his brief as a limited one not requiring an investigation. This attitude is one that displays wilful ignorance as to whether the assignments contained plagiarised material or not. Markers of university assignments are expected to be vigilant and detect plagiarism in the course of marking as an inherent part of the business of making an evaluation of students’ work.

Findings of fact

In Chapter 6 reference is made to the process by which the Commission is required to perform its functions. In this chapter a number of factual fi ndings are made in relation to the fi rst of the three segments of this investigation. On the available evidence the Commission is satisfi ed to the required standard of the following facts and fi nds accordingly:

1. The Plagiarism Policy clearly outlined the course that was to be followed once prima facie plagiarism had been identifi ed. No satisfactory explanation was advanced by Dr Ryder for his departure from the policy.

2. It is clear on the evidence that Dr Rugimbana did in fact make the recommendation for a re-mark at the meeting of 10 February 2003 and Ryder accepted that recommendation at that meeting without any cogent basis being shown for it.

3. That recommendation was made in contravention of an obligation arising under clause 7 of the University’s Code of Conduct at the relevant time (“the Code of Conduct”, reproduced in Appendix 2 to this report) the provisions of which were directed towards ensuring diligence in the maintenance of academic standards. In making the recommendation for a re-mark Dr Rugimbana acted in breach of his duty as Deputy Director of the Graduate School and in his capacity as a senior lecturer.

4. There can be no room for doubt that by ignoring University policy and ignoring Mr Firns’s allegations (in the sense of not properly investigating them) Dr Ryder acted improperly.

5. There was no proper or sound basis for rejecting or dismissing the views that were ultimately so plainly expressed by Mr Firns and when the meeting between Dr’s Ryder and Rugimbana took place on 10 February 2003 there was no factual basis for a view that there was no case of prima facie plagiarism.

6. The absence of any proper investigation of the plagiarism allegations meant that the possibility of the students in question being made subject to penalties was not examined. Such failures involved grave breaches of the Plagiarism Policy and of duty by Dr Ryder.



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7. Dr Ryder’s failure to act in the respects abovementioned constituted breaches of specifi c obligations imposed by the plagiarism policy, the Code of Conduct and of obligations arising under his employment contract.

8. Dr Ryder accepted Dr Zeffane’s re-marking without requiring or receiving a contemporaneous report detailing his methodology and fi ndings. Given the signifi cance of the matters that had been raised by Mr Firns, Dr Ryder’s failure in this respect meant that Dr Zeffane’s assessment was made without any records of the grounds and reasons in support of his assessment. There was accordingly no basis upon which the assessment could be validated.

9. In the absence of any evidence or any other cogent explanation by them the Commission accepts the submission made by Counsel Assisting that Mr Firns’s allegations were seen by Dr Ryder and Dr Rugimbana as potentially impacting adversely upon an offshore partner at a time when efforts within the Graduate School were being directed to building up the offshore program and to increasing the funds generated by the school from those activities. Dr Rugimbana’s recommendation to Ryder to arrange for a re-marking of the assignments was seen by both men as a method of side-stepping Mr Firns’s allegations and the Commission finds accordingly.

10. The Commission accordingly fi nds that both Dr Ryder and Dr Rugimbana were motivated by a desire to avoid any potential adverse consequences that the allegations may have had for the offshore program. Such a motive was an entirely illegitimate one as it entailed the undermining of academic standards by effectively side-lining the proper investigative procedures required to be undertaken in accordance with the plagiarism policy.

11. Running closely parallel in time to the decision made by Dr Ryder in relation to the WIRA plagiarism matter, were negotiations conducted between Professor Marimuthu (the Director of Institut WIRA) and Dr Ryder and Professor Carey concerning the renewal of the agreement between the University and WIRA. The existing agreement had been entered into in February 1998 for a five year period, and was due to run its course by February 2003. The evidence indicates that, well before Mr Firns had reported

plagiarism to the University, the University, in particular Dr Ryder, had taken a very hard line in relation to a significant rise in the annual licensing fee which it proposed to charge WIRA under the new agreement, from AUD$50,000 under the existing agreement, to AUD$300,000. The negotiations in this regard were protracted and the signing of the new agreement was, in consequence, delayed. The evidence does not, however, suggest that these negotiations and/or the signing of the new agreement were influenced by, or had any influence upon, the conduct of Dr Ryder in relation to the WIRA plagiarism matter.

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The evidence and fi ndings referred to in this chapter indicate quite clearly that the appointment of Professor Lamond to conduct an inquiry into an allegation of improper response to allegations of plagiarism was an ill-advised one. This statement is not intended to refl ect upon his competence within his own professional area but refers to:

n his lack of experience in the conduct of investigations of the kind required in this matter, and

n his lack of independence in that at the time of his appointment he enjoyed a number of associations with the University and its staff.

As to the issue of independence, Professor Carey, Pro Vice-Chancellor, Business and Law, said in evidence that he knew Professor Lamond very well and described their relationship as “good friends in the workplace”. He had formerly acted as referee for Professor Lamond with respect to the latter’s appointment at the University of Western Sydney. Importantly, Professor Carey declared his interest in the sense that he confi rmed his association with Professor Lamond to Professor English. However, the question was whether Professor Lamond should have been appointed at all and whether his association with Professor Carey and others at the University could have impaired his judgement in undertaking the inquiry particularly that part of it which required him to evaluate the conduct of University offi cials who had been the subject of accusations of a “cover-up” in relation to the plagiarism allegations.

Although Professor Carey initially gave evidence that Professor English fi rst proposed Lamond’s name, in later evidence he said that having thought further about the matter, he in fact had put forward Professor Lamond’s name on about 7 March 2003. The fact that he changed his evidence on an important point so late in the investigation represents yet another incident in a matter marked by inconsistent and faulty recollections by a number of participants.

There were two remarkable aspects to what has been referred to as the “Lamond inquiry”. The fi rst relates to Professor Lamond’s independence to which reference has already been made. The second relates to the failure by Professor Lamond to investigate whether there was substance to the Firns’s allegations. That matter had to be determined in order for him to evaluate and establish whether those responsible for the handling of the allegations acted appropriately and properly. Counsel Assisting submitted:

(1) that Professor Lamond was not independent and was not in a position to bring an unbiased mind to the serious matters that he was required to inquire into;

(2) that the inquiry undertaken by him was a fundamentally fl awed one, by reason of his failure to address and determine the truth and accuracy of Firns’s allegations.

The Commission has concluded that the evidence well supports the submissions on both matters. Before referring to the evidence it is necessary to record the further issue that arises in that event, namely, whether the conduct of Professor Lamond and others was, as canvassed in submissions, part of a plan to suppress the facts concerning the mishandling of the plagiarism allegations in order to protect University offi cials including Professor Carey, Dr Ryder, Dr Rugimbana, Dr Zeffane and others. The resolution of that matter bears directly upon the question as to whether the acts and/or omissions of Professor Lamond, and those who retained him for the inquiry, can be categorised as “corrupt conduct” within the meaning of the ICAC Act.

Professor Lamond’s suitability to conduct the inquiry

Professor Lamond holds a number of academic qualifi cations. However, he was not a person who possessed either the qualifi cations or experience to undertake an investigation of the kind required and which, in particular, involved the pursuit and discovery of facts concerning Mr Firns’s allegations that extended beyond plagiarism to allegations of “cover-up” and “soft marking”. On the basis alone of his lack of appropriate investigative skills for such a task, Professor Lamond should not have been considered or appointed to conduct the inquiry.

The question of Professor Lamond’s independence

The terms of reference for Professor Lamond’s inquiry will be discussed later in this chapter. It is sufficient here to observe that anyone undertaking an inquiry into possible impropriety by public officials has to be completely independent of the persons the subject of the investigation. This was not an inquiry merely into academic standards. The terms of reference indicate that an allegation of impropriety in the


Chapter 4: The Lamond inquiry


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response of senior University officials was central to the inquiry.

The Commission is of the view that the evidence plainly establishes that Professor Lamond was not independent either of the University of Newcastle nor of the persons who had been directly involved in the handling of the plagiarism matter (in particular as discussed below in this latter respect, he had had associations and relationships with Professor Carey and Dr Ryder).

The absence once again of any written record of the decision to appoint Professor Lamond was a gross failure and made it diffi cult to reconstruct precisely what was considered and taken into account by the decision-makers. Whilst Professor English and Dr Ryder gave evidence of discussions said to have occurred to determine whether there was any basis for a confl ict of interest arising from any relevant associations between University offi cers and Professor Lamond the Commission is by no means satisfi ed that that question was properly considered. The disqualifying associations are discussed below:

(i) Professor Lamond had had a long professional association with Professor Carey. He had known him since 1985 in a number of capacities at the Sydney Graduate School of Management. In his evidence to the Commission Professor Lamond described Professor Carey as “a good work colleague and friend”. Professor Carey had been a mentor to him in the past and he had relied on Professor Carey as a referee to obtain his current position at the Sydney Graduate School of Management.

He had travelled for professional reasons with Professor Carey two or three times in the past. He described them as “good colleagues” and clearly held Professor Carey in very high regard.

(ii) Professor Lamond had also known Professor English (who was in charge of establishing the inquiry) and was currently a fellow recruitment panel member at the University of Newcastle. The panel was due to meet again immediately after the due date for the Lamond Report (on 28 March 2003).

(iii) Professor Lamond gave evidence that he had also known Dr Ryder in a professional capacity for some years and seen him in that capacity from time to time. Professor Lamond was asked by Counsel Assisting:

Q. Specifi cally could you be seen as a friend of the major people involved, including the head of school, Professor Ryder or the Pro Vice-Chancellor, Professor Carey?

A. Yes, and I think in that context I volunteered the information that we’d known each other for some time.

(iv) At the time Professor Lamond was approached to undertake the inquiry he was involved in negotiations with the University of Newcastle with respect to the Doctor of Business Administration (DBA) program. He had been communicating with none other than the person at the centre of the plagiarism “storm”, Dr Ryder, about a possible contract under which Professor Lamond would render services to the University. Dr Ryder had as recently as 5 March 2003 emailed Professor Lamond about it and the latter had replied on 14 March 2003. Professor Lamond on that date withdrew from the DBA discussions. It so happens that on 14 March 2003 he was appointed to undertake the plagiarism inquiry.

This report will shortly deal with Professor English’s inquiries into Professor Lamond’s independence and the evidence as to disclosures. However, before doing so it will identify, apart from disclosures, the information otherwise available to Professor English both before and after the appointment was made which at the very least should have resulted in Professor English undertaking the most rigorous inquiries and steps to secure a formal declaration as to the absence of relevant associations and confl ict. Had he done so the results would have confi rmed that Dr Lamond would not be the appropriate person to undertaken the inquiry.

Professor English’s fi rst contact with Professor Lamond in relation to this appointment was on 12 March 2003. Relevant diary notes made by Professor English were admitted into evidence before me, in particular two diary entries dated 12 March 2003. The fi rst relates to a phone conversation with Professor Lamond. It records this note:

…I asked Professor Lamond if he is confi dent that he has no actual or perceived confl icts of interest. Specifi cally could he be seen as a friend of any of the major people involved, including H of S Professor Ryder or the PVC, Professor Carey.

Professor Lamond said that he had worked with Professor Carey 8 years ago at MGSM and that

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he sees Professor Ryder from time to time on a professional basis. He advised me that there is no personal/social/friendly relationship with either.

The second entry of 12 March records a conversation with Alex Smith, a journalist with the Newcastle Herald, who was seeking details as to the identity of the “external investigator”.

The next diary entry made by Professor English is dated 13 March 2003 and is a note of another call from Alex Smith. This note records Ms Smith’s understanding that Professor David Lamond is to be appointed.

The next diary note relates to a phone conversation with Suzanne Ryan of the Newcastle Business School on 14 March 2003 who, according to Professor English in evidence, he regarded as a person of integrity. It records:

Ms Ryan asked me if I was aware that “David Lamond is Bernard Carey’s best friend?” Ms Ryan further stated that…Dr Lamond was Bernard Carey’s right hand man at the Macquarie Graduate School of Management and was subsequently recruited to UWS by Bernard Carey.

There is also a reference to Dr Ryder having given three Doctor of Business Administration (DBA) courses to David Lamond to develop for the Graduate School. This statement is not accurate. However, they had in March 2003 been communicating with each other on the possibility of Professor Lamond undertaking work for the DBA courses. Those communications came to an end immediately before Professor Lamond was first approached by Professor English to take up the appointment to conduct the inquiry.

Although Ms Ryan’s information on the association between Lamond and Carey was not factually accurate, it did necessitate the need for a rigorous inquiry into Lamond’s independence for it did suggest that there had been a relationship that needed to be considered. Surprisingly Professor English did not undertake such further inquiries.

A fi le note of 14 March 2003 of a conversation between Professor English and Associate Professor Wayne Reynolds of the University’s Education and Arts Faculty and president of the local branch of the NTEU, states:

…he has had approaches from staff querying independence of Professor Lamond. I told him

I am confident and that Professor Lamond will have independent legal assistance.

Given the media attention focusing on the matter and the real possibility that there was more information available on the Carey/Lamond association, the Commission considers it was, at the very least, imprudent for Professor English to proceed with Professor Lamond without, in the University’s interests, pursuing due and proper enquiries into Professor Lamond’s actual and perceived independence.

On 19 March 2003, Mr Day emailed Professor English. Mr Day was upset at having been implicated in the controversy at Newcastle University by an article published in the Newcastle Herald. Mr Day wrote in conclusion:

I would also like to take this opportunity to register my disappointment regarding the appointment of Professor David Lamond as the external investigator for this case, given it is well known that he, Professor Ryder and Professor Carey are friends, and have had a number of recent dealings with each other. Given Paul Ryder’s alleged involvement in this WIRA plagiarism case, I personally feel that Professor Lamond’s appointment as the external investigator is not one that gives the appearance of independence.

Professor Lamond had been appointed fi ve days before this email was sent and was to report by the end of March. However inconvenient it may have been to put the inquiry on hold in order to investigate and verify Mr Day’s observations, the overriding issue had to be the integrity of the process. Indeed it could be said that having delegated responsibility for establishing the inquiry on behalf of the University, Professor English had a duty to safeguard the University’s interests with respect to its role in ensuring a due and proper and impartial process. Professor English had no satisfactory explanation when giving evidence for not doing so. The facts recorded by Mr Day are essentially accurate. Although not social friends, the three men were professional friends who had signifi cant professional associations with one another. On that basis alone he could not be regarded as suffi ciently independent.

There was considerable evidence as to the disclosures which had been made to Professor English about any relevant matters that may have given rise to a possible confl ict of interest or which could otherwise have impaired the actuality and perception of bias. Accepting as the Commission does Professor Lamond’s evidence



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as to the disclosures he made of past associations with Professor Carey and Dr Ryder the evidence on the matter makes it plain that the multiple associations relevant to him as identifi ed above rendered him ineligible for the appointment. He was not independent of either the University or of the offi cers at the centre of the controversy. He valued his ongoing association with the University and clearly held each of those offi cers in high regard. It would, the Commission considers, in those circumstances be diffi cult if not impossible for him to bring a detached, objective and impartial mind to bear upon the serious allegations of impropriety.

Professor English should have ruled Professor Lamond out of contention for the inquiry. The decision to appoint him was a joint one made by Professor Holmes and Professor English. They accordingly both share the responsibility for this ill-advised appointment. Professor Lamond was an unsuitable candidate by reason of his lack of experience and qualifi cations to carry out an effective investigation of impropriety of the kind alleged and by reason of associations that would place him in a position of potential confl ict. How Professors English, Carey and Ryder failed to identify the evident confl ict and the lack of partiality that would plainly exist if appointed is one of the many extraordinary facts of this matter. That issue, of course, was potentially directly relevant to whether there was impropriety involved in the appointment (including whether there was any impropriety by Professor Lamond himself in accepting the appointment). Those important questions will be dealt with later in this chapter.

The Lamond inquiry’s terms of reference

Professor English drafted the Terms of Reference for the Lamond inquiry. The University’s legal officer, Sue Beach, read them but apart from minor matters, they were in their final form, essentially as submitted to Ms Beach by Professor English. They are in the following terms:

Terms of Reference

1. To investigate an allegation of improper response to alleged student plagiarism, made by Mr Ian Firns, especially to investigate:

(i) what actions were taken in response to the initial report from Mr Firns, as examined, that he suspected plagiarism in some essays in course GSBS6110 Organisational Effectiveness; and

(ii) whether the actions taken were in accordance with the relevant policies and procedures of the University.

2. To recommend any further action that should be taken in relation to the assignments referred to in the initial report and/or any action that should be taken in relation to any staff of the university.

3. To report by close of business Friday 28 March 2003.

These terms of reference could have been framed with greater precision, for they do not in their terms call for an investigation of the truth and accuracy of Firns’s allegations. However, having said that, it is plain even to a person of average intelligence, that without determining whether Firns was correct in his allegations of widespread plagiarism, no determination could be made into the allegation of “improper response”. Specifically in investigating the conduct of relevant officials, Professor Lamond would at least be required to establish the facts concerning matters such as the following:

n The nature and extent of the plagiarism alleged by Firns;

n Whether anyone checked for plagiarism. If so who, by what method or process and with what result?

n If there had been no proper check made, why not?

n Whether Ryder or anyone else directed anyone to undertake a proper examination in order to establish whether plagiarism existed at all or as alleged. If not, why not?

n Following the referral of the assignments to Dr Zeffane, did Dr Ryder or anyone verify or check whether a proper investigation into plagiarism had taken place? If not, why not?

n What explanation was there for the absence of a proper report on the Firns’s allegations supplied by Dr Zeffane? Why had Dr Ryder not insisted on being given such a report?

Any inquiry acting under the terms of reference could not have helped but realise that:

n A check on the website addresses and other matters raised noted by Mr Firns did in fact establish serious and widespread plagiarism in most of the assignments;

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n No-one with responsibility for investigating the allegations (including Drs Ryder, Rugimbana and Zeffane) had however even attempted to check the website addresses or undertake any proper inquiry into the substance of what Firns alleged.

Without establishing those two obvious matters the Lamond inquiry could not even attempt to evaluate what it was called upon to investigate or establish, namely the “allegation of improper response” by University staff. And yet Professor Lamond’s inquiry failed completely to establish the facts concerning these two matters. Dr Ryder and others in consequence were not called upon to account for what had been a deliberate refusal or failure to investigate.

This Commission pursued with Professor Lamond why it was that he failed to investigate and establish the facts concerning the failure by others to investigate the most basic facts. He sought to adopt a construction of the terms of reference that in some way excused him from doing so. The Commission does not accept his contentions in this respect.

The failure by Professor Lamond to pursue the most obvious issues plainly called for an explanation. There were at least three questions that needed to be addressed:

(i) Was his failure due to ineptitude? This was considered a possible explanation although a very unlikely one given Professor Lamond’s intelligence and level of education;

(ii) Was it due to something rather more sinister, as perhaps in a deliberate attempt to “cover up” for the University offi cials involved?

(iii) Was it due to or arose out of a lack of independence which, at least at a subconscious level, impaired his objectivity and clouded the relevant issues?

The resolution of these questions is dealt with below.

The outcome of the Lamond inquiry

The truth of the plagiarism allegations was effectively the cornerstone of the terms of reference, in particular, paragraph 1 of the terms of reference.

However, without enquiring into or establishing whether the assignments contravened the University’s Plagiarism Policy (as was later established by the Deloitte review) Professor Lamond proceeded to issue a report in which the relevant offi cers were cleared of misconduct. The only adverse fi nding was in terms of “unsatisfactory performance” but even that was mitigated by a further fi nding that they had been “confused” by the terms of the policy document.

The fi nding was expressed as follows:

Accordingly I find no misconduct on the part of any staff involved in this case. At the same time there is evidence of unsatisfactory performance that needs to be corrected.42

The report went on to effectively excuse staff for it stated that the policy defi nition of plagiarism was in need of clarifi cation.43

The fi nding of no “misconduct” was a fallacious one given that the relevant “conduct” of Drs Ryder, Rugimbana and Zeffane had not even been examined. It is suffi cient in this respect to refer to the following admissions made by Professor Lamond:

1. In relation to Dr Zeffane’s conclusion that there was no intentional plagiarism, only poor referencing, Professor Lamond was asked:

[Counsel Assisting] Q: Did you ask him what methods he used to form his views?

[Professor Lamond] A: No, I did not.

When asked whether he was aware that Dr Zeffane, as he himself disclosed in evidence, had not even checked for plagiarism he initially stated that Dr Zeffane had told him he had checked for plagiarism. However, in later questioning it became clear that Dr Zeffane had told him he had not checked most of the assignments on the critical fact:


42 Lamond, D, 2003, “Alleged Improper Response to Allegations of Plagiarism by Students in Course GSB6110”, report to the Vice-Chancellor and President, University of Newcastle, p.17.

43 ibid, p.18.


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[Assistant Commissioner] Q: Leaving two out of it, there’s 13 apparently that weren’t checked. Is that right? Is that what he told you?

[Professor Lamond] A: That’s correct.

The failure of Dr Zeffane to check for plagiarism, especially given Firns’s comments and the references supplied by him, was a remarkable failure. The failure of Professor Lamond to pursue and ascertain why all assignments were not carefully checked for plagiarism is also remarkable. No “misconduct fi nding” in relation to Dr Zeffane (and possibly others) could even be considered by him without that issue being investigated. Professor Lamond could offer no satisfactory explanation for his own failure to examine the issue.

One matter of concern is that Professor Lamond’s report records his interview with Dr Zeffane. It reads in part:

…when he (Zeffane) examined the essays and checked the websites he noted there was not full correspondence, pieces were taken and poorly referenced, but not taken from the web and presented in full.

This part of the report leads the reader to understand that Dr Zeffane had told Professor Lamond that he had in fact checked “the essays” – that is all the assignments by reference to the websites. However, the report in this respect gives a misleading picture. Paragraph 3.4 of the annexed review notes reveals that Dr Zeffane told Professor Lamond that he had “looked at a couple and used Google Search to follow them up…” The fact that should have been reported by Professor Lamond in the body of his report was that Dr Zeffane had not taken the trouble to follow up on all the websites referred to by Firns and asked no-one to do so. The process that had been authorised by Dr Ryder had not included the most elementary electronic search methodology to check out the plagiarism allegations. This fact was not, as it ought to have been, made the subject of a specifi c fi nding by Professor Lamond.

2. The re-marking procedure authorised by Ryder was an unauthorised one – it was outside the range of responses permitted under the Plagiarism Policy.

Professor Lamond failed to identify this fact in his report in evaluating the question of misconduct or impropriety, nor the reasons for Dr Ryder and others having chosen to act outside the Policy. Having acknowledged that the unauthorised re-marking procedure fell within

“the response” of staff members that he was required to investigate he gave the following evidence:

[Assistant Commissioner] Q: ... you’d fi rstly have to determine whether it was authorised procedure under the policy, wouldn’t you, or whether it was some process someone dreamed up, correct?

[Professor Lamond] A: That’s right. Yes.

Q. But you didn’t in your report, examine the response of the University in terms of this re marking procedure by saying whether it was inside or whether it would contravene the policy, and that would’ve been I would’ve thought a most material matter in relation to whether the conduct of the University was, to use the term, the language of paragraph 1, “proper or improper”?

A. M’mm, M’mm.

Q. Correct?

A. Yes.

It was then put to Professor Lamond:

Q. It seems that in that respect, at least, your investigation was inadequate because it didn’t examine that matter which, as you’ve just agreed, was material. Correct?

A. Yes. I used the information to reach a series of conclusions, in globo, and I now understand that it would’ve been more appropriate to reach conclusions in regard to a series of quite specific points.

Whilst agreeing that the unauthorised and improper re-marking procedure that had been applied (and which resulted in favourable marks to the students in question) was one of the main features of “the response” to the plagiarism allegation, Professor Lamond agreed that the reasons for its adoption were not explored by him. The following are some additional defi ciencies in the Lamond inquiry:

3. There was no inquiry into the substance of the allegations that had been made by Mr Firns:

[Assistant Commissioner] Q: Professor Lamond, just one or two matters.

Do I understand this to be the case that you didn’t set out and didn’t undertake an investigation as to the merits of Mr Firns’s allegations, that is to say, you did not embark

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upon an investigation as to the substantive truth or otherwise of his allegations?


4. There was no fi nding concerning the failure of University staff to properly and effectively investigate Firns’s allegations:

[Assistant Commissioner] Q: Well did you make a fi nding as to why, given the

nature of the allegations there had not been a full and proper factual investigation of the allegations?

A: No, I didn’t make a fi nding.

Q. You didn’t investigate that issue that’s why you didn’t make a fi nding, is that right?

A. I believe I did investigate the issues.

Q. You made no fi nding – no determination?

A. No I didn’t.

Q. But on an issue that you were asked to investigate, that is to say whether conduct was proper or improper, you would need to ascertain and determine whether there was a valid reason why no full investigation was carried out by the University staff, wouldn’t you?

A. Yes.

Q. But you didn’t and that would be another fl aw in this investigation wouldn’t it?

A. I accept that.

And a little later Professor Lamond again acknowledged the defi ciency in the approach taken by him:

Q: But you wouldn’t be able to evaluate whether it was a proper response or an improper response without fi nding out why it was there had been no full, thorough and sound investigation of Mr Firns’s allegations, isn’t that right?

A: As you say that, yes.

And a little later on the re-marking issue:

Q: That would be an omission, wouldn’t it, a material omission, as to why, given the nature of the allegation that Mr Firns had raised and the number of students involved, they stepped

outside the policy and adopted some unauthorised (procedure), for instance, would you not agree?

A: Yes.

The acts and omissions of Drs Ryder, Rugimbana and Zeffane were remarkable in several respects discussed in this and earlier chapters. An issue central to explaining such conduct was to ascertain the purpose, intention or state of mind of each of them. However, that was not an issue that Professor Lamond concerned himself with:

Q: But there is no discussion in your report at all, is there, that is to say there is no discussion as to why, for example, the university staff did not launch a full, factual investigation of Mr Firns’s allegations. Isn’t that so?

A: Yes, that’s right.

Q. Well, without that sort of inquiry you couldn’t possibly determine whether their response had been proper or improper, could you?

A. I used the emails and the interviews as a basis for reaching a view as to what — as far as one can get inside anyone’s head, whether their intention was to deliberately subvert the policy or whether their behaviour was a function of misunderstanding of it.”

In subsequent evidence Professor Lamond sought to explain his omission by referring to the alleged confusion in the fl ow chart which forms part of the Plagiarism Policy as a justifi cation for the response by the staff who had the responsibility to investigate. The fl ow chart, however, provides neither an excuse nor a justifi cation for the failure to check for plagiarism that had been so strongly asserted by Mr Firns. Even the solicitor assisting Professor Lamond, Mr Thompson, wrote to him pointing out that:

Do you think it might be the case that any confusion you’re referring to evaporates once you read it in context? 44

Professor Lamond incorporated a statement in similar terms in the report but added the comment that, whilst from a lawyer’s perspective, “prima facie plagiarism” in the fl ow chart is adequately defi ned and because of the defi nition of “plagiarism” in the policy and “prima facie” needs no defi nition, “however, a lawyer’s perspective is not pertinent. It is the perspective of academics and


44 Email from Mr Steven Thomson to Professor Lamond, dated 27 March 2003.


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administrators that counts” (p.4). However this would be so only if the expression was a peculiarly legal or technical term.

The expression “prima facie” is a commonly used expression and the point urged by Mr Thompson (that any uncertainty evaporates because of the defi nition of “plagiarism” in the policy and “prima facie” needs no elaboration) was an obvious one which Professor Lamond appeared intent on asserting was not so obvious and was capable of creating confusion for academics and administrators.

The end result is that with knowledge that Drs Ryder, Rugimbana and Zeffane had not undertaken a full factual investigation, for whatever reason, Professor Lamond was not concerned with fi nding out why.

Professor Lamond repeatedly asserted in his evidence that one basis for his fi nding of no misconduct was by reason of some confusion in investigating staff as to the Policy and action to be undertaken in investigating plagiarism. He wrote in his report:

There is some concern, however, that the “Procedure for Investigation and Subsequent Action for Allegations of Plagiarism”, which takes the form of a Procedure Flow Chart with an accompanying series of notes, is not clear and appears to have produced some confusion as to what is ‘plagiarism’ and what is the appropriate response.

One primary difficulty with this exculpatory observation (as it lacks sufficient specificity it can hardly be regarded as a finding) is that neither Dr Ryder, Dr Rugimbana nor Dr Zeffane claimed or asserted to Professor Lamond whether when interviewed or in written submissions that they had any difficulty in interpreting the Policy document. None of them claimed that they were in any way confused by the document. There was no finding that any particular individual was confused by a specific part of the Policy. Professor Lamond wrote in his report:

The consequence of this confusion is that University staff members may have developed an erroneous understanding of the University’s policy. Accordingly, they maymay be applying their understanding of the policy in good faith, but doing so incorrectly, in treating ‘unintentional plagiarism’ as equivalent to poor referencing skills. [emphasis added]

The term “may” conveys mere possibility but nowhere in the report is there any material to support a conclusion that a particular staff member was in fact “confused”.

The Commission has examined the terms of the policy including the fl ow chart and does not believe that its terms were such as to cause the confusion claimed. Professor English repeatedly stated in evidence that he considered it “a very clear policy” and that it was not ambiguous.

Whilst Professor Lamond denied when put to him by Counsel Assisting that the notion of “confusion with the policy” was an invention by him, his attempt to identify a cogent basis for the alleged “confusion” was quite unconvincing. He stated that the question of possible confusion arose in his mind (and despite assertions to the contrary by those under investigation):

It came from my consideration of the very fact that all said: “This is the plagiarism policy and I understand it”, yet none of them properly presented the plagiarism policy as then in place and I formed the view on that basis that while they were quite satisfi ed that they knew and understood the policy, it was clear from what they understood the policy to be, that they didn’t understand it and that the confusion might be in the policy itself.

It is to be borne in mind that the interviews conducted by Professor Lamond were relatively brief and did not involve probing questioning. The alleged possibility of confusion is not referred to in any notes taken during the inquiry and as earlier stated no specifi c point of confusion by a particular individual was identifi ed by Professor Lamond. The possible confusion in the minds of staff as to the concept of plagiarism and processes to be followed become elevated later in the report to an “extensive misunderstanding” (p.i) and to a “fundamental misunderstanding of the nature of plagiarism” (p.ii). The report goes on to exculpate staff for their alleged “common misunderstanding” by referring to the fact that “they reasonably misunderstood” the policy (p.ii). There is no evidence referred to in the report for any of these ultimate conclusions. They are couched in the language of assertion without distinguishing between one individual and another.

The Commission is driven to the conclusion that the possibility of confusion was a baseless assertion by Professor Lamond, made without any cogent evidence to support it. Accordingly the fi nding of “no misconduct” made on this basis is an entirely fallacious and erroneous one. There is no basis for that conclusion in the evidence before the Lamond inquiry.

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The Commission notes additionally the following points:

1. Professor Lamond’s objectivity appears to have been effected to some extent by the adverse view that he formed of Mr Firns without carefully examining the accuracy and reliability of the specifi c fi ndings or allegations as to plagiarism that Mr Firns had raised.Professor Lamond stated that he considered the evidence “suggests that he’s prone to exaggeration and intemperate use of words” (Mr Firns’s allegations were substantially validated by the later Deloitte’s examination of the assignments. There were, however, some variations in some assessments). He was then asked:

Q. Did you have that view of him during the course of your inquiry and when you came to write the report?

A: Yes, I did.

Q: Did that influence you in your overall assessment of the matter that had been sent to you for investigation?

A: It was a matter that I did take into consideration, yes.

Q: In what respect, that is relevant to the issue of whether there was likely plagiarism or relevant to some other issue?

A: Relevant to the likelihood of the plagiarism, Commissioner.

2. The record reveals that at least with one key witness Professor Lamond suggested a conclusion as to whether what was in fact involved was “unintentional plagiarism”. He expressed the view to Dr Ryder that there was no intention by any of the students of an attempt to deceive. Counsel Assisting put to Professor Lamond:

Q. I put it to you it was entirely inappropriate for you to express any view during the course of an interview about the contents of the essays, would you agree?

A: Yes.

Suggesting a view to a witness like Dr Ryder on an important issue of whether there had been “intentional” plagiarism or not tends to undermine the confi dence that can be placed in the rather limited processes that were involved in the Lamond inquiry.

3. The failure by anyone to subject the assignments to an internet-assisted search for plagiarised material in order to determine the nature and extent of plagiarism remains a startling omission by Drs Ryder, Rugimbana and Zeffane and the Lamond inquiry itself. The failure by the former offi cers, though almost total and grave, is not even mentioned as a fact let alone identifi ed as a matter of signifi cance by Professor Lamond.

4. Finally, Professor Lamond stated that he decided that he would not examine whether there had been plagiarism. He was concentrating only on the policy and its wording and interpretation. For reasons earlier expressed this was to set himself an impossible task – without determining whether there was plagiarism it was impossible to judge the appropriateness or propriety of the staff ’s handling of Firns’s allegations. It is to say the very least a remarkable position to have taken by someone as intelligent and as well-educated as Professor Lamond:

[Assistant Commissioner] Q: At some point in time, for whatever reason,

you made a decision that you weren’t going to go down the path of investigating the substantive truth or otherwise of the plagiarism allegations?

A: That’s right. I didn’t follow that….

The Commission heard evidence that the Sundayprogram had attributed to Professor Lamond a conversation where it was alleged he had said that Professor English told him not to investigate the essays. When questioned on this, Professor Lamond denied in evidence that the conversation ever occurred. No fi nding can be made on the evidence as to whether Professor Lamond was directed not to examine the assignments. All that can be said is that by not doing so Professor Lamond could not hope to conduct an inquiry that was called for by the terms of reference. His failure to do so of course fuelled Mr Firns’s suspicion of a “cover-up”.



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Findings of fact

The Commission has closely considered the evidence in order to determine the reason for so many obvious failures in Professor Lamond’s inquiry. The Commission has earlier identifi ed the possible competing explanations. The lack of contemporaneous record-keeping makes it diffi cult to reconstruct some events and it is simply not possible for me to be satisfi ed to the required standard that Professor Lamond in any way deliberately acted improperly to exonerate University staff. The Commission fi nds, for reasons outlined earlier, that Professor Lamond was not suffi ciently impartial or objective, a fi nding that is not to be taken as impugning his integrity. Many confl icts of interest or lack of independence can arise without any impropriety. Professor Lamond had a number of professional associations which meant that he was not completely independent of the University and its staff. For that reason also, he should never have been appointed. Given the disclosures of past associations made by Professor Lamond that he had had with Professor Carey and Dr Ryder the Commission is of the view that Professor English bears the primary responsibility for having recommended Professor Lamond’s appointment.

Professor Lamond’s consideration of the issues was, as earlier stated, fl awed by a failure to examine specifi c issues that cried out for the most rigorous examination. That failure, the Commission fi nds, resulted from his inability to act in an entirely objective and impartial manner because of the evident confl ict between his role as inquirer under the terms of reference and his professional friendships and associations with Professor Carey, Dr Ryder and Professor English and the University itself. The perception of bias from the viewpoint of the hypothetical reasonable observer was evident from the date of Professor Lamond’s appointment. This perception, the lack of independence and the failure to explore key factual issues seriously eroded the validity of the fi ndings in the report. In particular, the report failed to identify the fact that both Dr Ryder and Dr Rugimbana had failed in their obligations to investigate the plagiarism allegations.

Submissions have been made attacking Professor Lamond’s role in this matter on two bases: one contended that Professor Lamond was party to an improper scheme or arrangement whereby staff involved in handling the plagiarism allegations would be protected by an inquiry which had a pre-determined outcome, and the other was based on Professor Lamond’s lack of independence.

If accepted, the contention that Professor Lamond was party to an improper scheme or arrangement would impugn his integrity, but as I have previously indicated, on analysis the Commission does not believe that the evidence, to the required standard, supports such a contention.

It follows that Professor Lamond’s inquiry was essentially impaired both by reason of his lack of independence arising from the conflicts that existed and which have been earlier identified and from his lack of experience and qualifications to undertake an investigation into alleged impropriety of staff. It also follows that Professor Lamond’s conduct in undertaking the inquiry in circumstances that involved an absence of the necessary quality of independence is not a finding that he wilfully (or consciously) acted out of improper motives but arose from a failure by him to fully appreciate the implications of any past or existing associations disclosed by him, and how they may impact upon the task that he was called upon to undertake.

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Professor Roger Holmes was, at all material times the Vice-Chancellor of the University of Newcastle. He had held the position of Vice-Chancellor since August 1996 and accordingly by the year 2003 he was a very experienced University administrator. Professor English, the Deputy Vice-Chancellor, was the senior offi cer responsible for setting the terms of reference for the Lamond inquiry and had general responsibility for supporting the inquiry in its investigation and reporting on the plagiarism allegations. Professor Holmes accepted in evidence, as indeed was the fact, that he retained overall responsibility throughout for the handling of the matter and that, as at the date of the Lamond Report, he and Professor English were the key offi cers responsible for management of the matter.

Professor Holmes gave evidence that when a copy of the Report was given to him on about 31 March 2003 he discussed it with Professor English. It was abundantly clear from the report that no fi nding had been made in relation to the allegations of plagiarism. This fact was discussed by him with Professor English. Professor Holmes told the Commission that they agreed to proceed at that time with the two broad recommendations set forth in the Lamond Report that dealt with staff and plagiarism policy issues.

An important issue that fell for determination was whether Professor Holmes, as maintained by Professor English, told him immediately after the Lamond Report was received that he did not propose referring the plagiarism issue to a student disciplinary committee. Professor Holmes denied that he had made such a statement to Professor English, that he in fact did wish the allegations of plagiarism to be investigated but that both he and Professor English agreed amongst themselves that the fi rst priority was to pursue the Lamond recommendations in relation to staff performance and policy matters and that the plagiarism allegations would then be examined.

In his evidence Professor Holmes acknowledged that as the Lamond inquiry had not dealt with the plagiarism allegations the University still had an undetermined and signifi cant issue on its hands. He claimed that he and Professor English discussed and decided that the report’s recommendations would be implemented and “that we would come back to that specifi c issue (concerning the plagiarism allegations) once these recommendations had been dealt with.” He acknowledged that that decision was not recorded in any of the University’s fi les even though it was “a crucial decision”. This is a further example of important decision-making being

left unrecorded in breach of clause 8(c) of the Code of Conduct, “Personal and Professional Behaviour”. This clause provides:

In the performance of their duties, staff should: …

(c) maintain adequate documentation to support any decisions made.

Perception of a “cover-up”

There were three principal aspects in the conduct of Professors Holmes and English that fuelled suspicions that a cover-up of the plagiarism allegations continued after the Lamond Report became available to Professor Holmes on 28 March 2003.

The fi rst was the lack of apparent will and action by “management” to pursue Mr Firns’s allegations. The second was the fact that the Lamond inquiry failed to investigate the adequacy of the staff conduct in light of the truth and substance of the allegations.

By July 2003 Mr Firns was understandably greatly concerned about how the WIRA matter had developed up to then. It again began to attract media interest on the basis that no-one in a responsible position at the University appeared to be interested in getting to the truth of the matter. In summary by July 2003 the position was that:

n Drs Ryder, Rugimbana and Zeffane were clearly not at all interested in pursuing a proper examination of the plagiarism allegations;

n Professor Lamond, without any satisfactory explanation, decided that he was not going to investigate them although without doing so patently his inquiry would be of little or no utility;

n Professor Holmes was not prepared to refer the matters to a student disciplinary committee immediately upon receipt of the Lamond Report. He only did so when it was brought to his attention that a journalist associated with Sunday had been probing into the issue and was moving to expose the whole matter.

The third issue that fuelled suspicion of a cover-up was the failure of Professor Holmes to provide the University Council with a copy of the Lamond Report and steps taken by him to prevent copies of the report going to anyone outside his office. Whether Professor English

Chapter 5: Inaction of the University’s senior managers following the Lamond Report



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was complicit in any attempted suppression of the report is examined later below.

Withholding the Lamond Report

In his evidence to the Commission Professor Holmes agreed that he never authorised release of the Lamond Report and did not provide a copy to members of the University Council. Somewhat surprisingly he adopted the view that the University’s Enterprise Bargaining Agreement presented an obstacle to circulating copies of the report on the basis that it included a fi nding of “unsatisfactory performance” of staff members. The Commission found this explanation to be wrong in fact and completely unconvincing. Confi dentiality of the people the subject of any adverse fi ndings could have been maintained in a number of ways. The report in any event in such a fi nding was hardly damaging to the reputation of anyone having regard to the rather mild nature of the fi ndings contained within it. Professor Holmes failed in his duty to fully and properly brief the Council as the governing body of the University on the report. The Council’s right to be fully informed on such an issue of importance was, of course, paramount. The Council had a vital interest in the evident defi ciencies in the report and the need for an urgent and proper investigation of allegations of impropriety that had gone without investigation.

Failure to investigate following the Lamond Report

Professor Holmes confi rmed that on reading the Lamond Report it was apparent that the serious issue of plagiarism could not be ignored. However, notwithstanding that appreciation, the events between 28 March 2003 and 10 July 2003 (when knowledge of the media probe was obtained) revealed:

n a complete lack of investigatory action to establish the validity or otherwise of Mr Firns’s allegations.

n a highly restrictive or confi dential approach being taken by Professor Holmes to the Lamond Report and a limitation being placed on its publication.

It will be recalled from what has been stated earlier that in his evidence Professor Holmes claimed that he and Professor English agreed between themselves that any investigation of the plagiarism allegations would

be deferred and dealt with at a later point of time. For reasons which are developed later in this chapter the Commission does not accept – as Professor Holmes would have had the Commission believe – that between 28 March and 11 July he had an intention or plan to pursue the plagiarism allegations. There is certainly no record by Professor Holmes (or Professor English) which reveals any such intention before 10 July 2003 and the events as to the lack of action before this date over such an obviously important issue and one that demanded priority of action, very much negates Professor Holmes’s unsupported assertion to the contrary.

The absence of action by Professor Holmes or Professor English to pursue the allegations between 28 March and 10 July 2003 constitutes a serious breach of their respective obligations, including in particular, those arising under the provisions of clauses 1 and 7 of the Code of Conduct. This is especially so given the history of the matter which includes the damaging media reports earlier in March 2003 and Professor Holmes’s acknowledgement in evidence that the allegations were so serious that they could not be allowed to lie without action being taken.

The Commission was not impressed by Professor Holmes’s evidence to the effect that he left the timetable and implementation of a program to investigate the plagiarism allegations to Professor English. By the end of March 2003 the matter had, as previously stated, received signifi cant adverse publicity and, as he acknowledged, action had to be taken as a matter of urgency to protect the University’s good name and standards by getting to the truth of the allegations. Instead the matter was left to languish until July when he and Professor English hurriedly referred the matter to a Student Discipline Committee having received information indicating media interest in the matter had again been revived.

Professor Holmes accepted that, as Vice-Chancellor, he retained overall responsibility for the matter. His delegation of the performance of specifi c functions to Professor English concerning the Lamond inquiry did not in any way alleviate him from overriding responsibility. Although the matter was closely examined in evidence, no fact or matter could be advanced by Professor Holmes (or by Professor English) which could even come close to a justifi cation for the lack of action. The lack of action up to 11 July was entirely consistent with the evident unwillingness by responsible University offi cials (including Drs Ryder and Rugimbana) to explore Mr Firns’s allegations.

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Without a determination of the nature and extent of plagiarism and as to whether Mr Firns was correct in his contentions, it would be impossible for any inquiry to then evaluate the “appropriateness” of the conduct of those who had been charged with the responsibility for investigating the allegations. That meant, of course, that neither the students affected by the allegations nor the members of staff who had failed to properly investigate were being brought, in accordance with proper process, to give an account of themselves. Professor Holmes agreed when it was put to him:

[Assistant Commissioner] Q: But, unless you got to terms with the magnitude

of the issue about the plagiarism it’d be very hard to measure the appropriateness of the response of the University staff, wouldn’t it?

A: Yeah, I guess that’s true.

Q: But, that would’ve been obvious once you’ve read the report. Wouldn’t you have read this report and said “Well, this is not much use, unless we fi nd out the extent of the plagiarism issue, well, this report can’t fairly evaluate the conduct of the relevant persons”. Is that so?

A: Yes.

However, when pressed, Professor Holmes was unable to explain why it was that he had not read the report with a critical eye and, noting the defi ciencies in it, immediately taken steps to ensure the matter was pursued so that at last the truth of Mr Firns’s allegations could be established:

Q. Do you agree with me it was obvious on reading the report that the investigator had proceeded without dealing with the fundamental issue, that he would’ve needed to have done so?

A: He didn’t undertake an examination of the scripts, yes.

...

Q: Wouldn’t you read it with a critical eye, see whether the report was worth the paper it was written on, not just be blinded by the reputation of the author, would you? All I’m really asking is, did you read this report with a critical eye or did you just take it at face value, and assume that it had answered the questions appropriately?

A: I read the report, and I took it at face value, and proceeded to act on it. Perhaps, I should’ve read

it with a more critical eye — and dealt with it accordingly, but at the time I didn’t do that.

Q: But why not, why wouldn’t you have read it with a critical eye? I would’ve thought you had every reason to?

A: I don’t know, sir.

Q: Again, can you provide any excuse for not having done so?

A: No.

However, Professor Holmes did acknowledge that, following the Lamond Report, it was necessary for him to immediately put in train the necessary procedures for an investigation by invoking the Discipline Committee process, but he was unable to offer in evidence any explanation as to why that process did not occur. He accepted that he had responsibility for ensuring that process:

I recognise that that action should’ve been taken, yes, sir.

When asked what excuse he could offer for not having done so he somewhat unresponsively pointed to the attention that was being given to actioning the staff recommendation in the Lamond Report. Professor Holmes, of course, was bound to acknowledge that pursuing that recommendation would not in any way have prevented an investigation into the plagiarism issues from moving forward until resolution. Professor Holmes was then asked:

Q. No, then if that’s not an adequate explanation, what is?

A: I don’t have one, sir.

Subsequently Professor Holmes did suggest, unconvincingly, in his evidence to the Commission that he was awaiting a report from Professor English before moving to the next stage of the investigation. Given that he accepted that he retained responsibility overall for the matter, the mere delegation of the task to Professor English of actioning the recommendations in the report on staff and policy matters could not possibly constitute either an adequate explanation or a justifi cation for his failure to have the matter referred to the Discipline Committee.

Professor Holmes was asked:



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Q. Then that leaves the position, doesn’t it, to be examined in this context.

(1) … – the most serious allegations of plagiarism had been raised;

(2) A complainant who is trying to pursue them;

(3) No action by way of vigorous pursuit taking place prior to 11 July’

(4) No fact or circumstances that you can point to that provides excuse or justifi cation for not having pursued them, correct so far?

A: Yes.

Q: If there are no reasonable circumstances, grounds by way of excuse or justifi cation there has got to be some other explanation for why the University didn’t, as it was bound to do under its policy, urgently pursue these allegations. That is, it’s not just as if it was just oversight, there has got to be an explanation for that extraordinary conclusion. Would you agree?

A. I would agree there needs to be an explanation. I don’t have any further explanation than what I’ve described earlier.

Even after the Lamond Report Mr Firns continued to encounter an attitude by senior management that can only be said to have been dismissive.

On 4 April 2003 Mr Firns emailed Professor Holmes stating, inter alia:

I refer to my emails of two days ago. May I please have your formal response to my request that a credible, independent review of the papers in question be carried out. For the review to be acceptable to me, I would require the right to approve or otherwise the reviewer appointed.

On 4 April 2003 Professor Holmes emailed Mr Firns with the following reply:

Subject: Review of Papers

Dear Mr Firns,

I do not intend to discuss this matter any further with you as it is in the hands of the Deputy Vice-Chancellor. Please direct any further correspondence to Professor English and do not bother me again.

Thank you.

Roger S Holmes

Vice-Chancellor and President

University of Newcastle.

On 6 April 2003 Mr Firns again emailed Professor Holmes in the following terms:

Subject: RE: Review of Papers

I am appalled at your lack of concern, and will release this correspondence to the Press. Any reasonable CEO would realise that delegating a matter such as this is a dereliction of duty. No wonder the University is in such a poor ethical state. You should resign immediately.

Professor Holmes said in evidence that he regretted what he had said in his email to Mr Firns of 4 April 2003, and that it was “inappropriate” to have responded in these terms. The correspondence, however, demonstrates that Professor Holmes was not infrequently being reminded of his responsibilities in the matter and that Mr Firns continued to press for an investigation over a lengthy period of time. Mr Firns’s repeated attempts to have the matter properly investigated magnifi es the lack of response by Professor Holmes and exposes an apparent unwillingness or refusal by him to take hold of the matter and act in the interests of the University, the students concerned and Mr Firns amongst others.

Professor Linda Connor in early 2003 was President of the Academic Senate which is the primary forum of debate on all academic issues in the University amongst other functions. She gave evidence before the Commission. She was asked about discussions with Professor Holmes on the matter:

Q: You yourself had some inkling, didn’t you, by virtue of what Holmes told you in June that the matter had not been investigated. Did I understand your evidence?

A: Yes, I raised the matter.

Q: Well, you raised it with him?

A: I raised it with him at the end of April and I raised it at the beginning of June. I had also raised it with the Deputy Vice-Chancellor earlier in April.

Q: Having raised it, what was your understanding of what was going to be done?

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A: My understanding was that the inquiry was going to proceed.

Q: To investigate it?

A: Yes.

Professor Connor, who was an impressive witness and whose evidence the Commission accepts, went on to refer to her discussion with Professor Holmes at the end of April when he told her that “we were still in the staff misconduct hearings under the enterprise agreement and that was being dealt with by the Deputy Vice-Chancellor…….”. That information of course was incorrect as the “disciplinary” matters were completed by 16 April 2003.

Such a resolute unwillingness by Professor Holmes to investigate only served to fuel the suspicion by Mr Firns and others that those involved in the matter were indeed engaged in some form of “cover-up”. The remaining issue given those circumstances was, why?

Professor Holmes was asked to identify any action that had been taken to pursue the plagiarism allegations between 27 February and 11 July:

Q. As to the specifi c matter relating to the plagiarism allegations, what can you point to which demonstrates a vigorous pursuit of the plagiarism allegations raised by Mr Firns?

A. I cannot point to any particular matter up until that particular date, sir.

The sudden referral to a Student Discipline Committee

On 11 July 2003 there was considerable activity, in marked contrast to what had occurred before that date. On 8 July 2003 Sunday gave written notice that it was intending to expose the handling of the WIRA matter. It is clear from handwritten notes of Professor English dated 8 July 2003 that Professor English had received information by some means by 8 July 2003 that Sundaywas pursuing the plagiarism issue and the related issue of the staff ’s lack of response to the allegation. Whilst it was Professor Holmes’s evidence that the fl urry of activity on and after 10 July 2003 was not triggered or prompted by the media interest, it is evidence that the Commission cannot accept as truthful. On 10 July 2003 Professor Holmes read the Sunday letter but left the matter in the hands of Professor English as he was due to

depart overseas the next day. A so-called “report” (but in reality a media release) was issued by Professor English on 11 July 2003, plainly as a response to the recently acquired knowledge of the media interest.

In addition to the release of the so-called “report” by Professor English, Professor English wrote to Professor Carey in the following terms:

Dear Professor Carey,

As Acting Vice-Chancellor I am pleased to provide the attached report concerning allegations of plagiarism deriving from this University’s partnership with Institut WIRA in Malaysia.

You will note from the report that a review of the Policy and the proposed training of staff has now been arranged. One outstanding matter is any action to be taken in relation to the assignments submitted by students. Could you please advise what action, if any, you intend to take? Please note in considering any action that the current Acting Head of School was named in the report has [sic] needing further training in order to fully appreciate and apply the University’s policies in relation to plagiarism.

Yours sincerely

Brian English

Acting Vice-Chancellor.

Remarkably, on the same day, Professor Carey responded by letter also dated 11 July 2003 to Professor Brian English thanking him for his letter. He advised, inter alia:

I am pleased that the process has worked its way to this point where the allegations of plagiarism can be directly confronted. I have consulted the University Policy on Plagiarism and ascertained its impact on the present allegations. There would seem to be sufficient evidence to justify a prima facie case with each of the allegations. It is really a matter for a properly constituted Disciplinary Committee within the University to consider facts relating to each allegation and ascertain whether there is any finding of plagiarism and, if so, the appropriate penalty.

I recommend that the University establish a Disciplinary Committee to hear the allegations of plagiarism against each of the students who is under the jurisdiction of the University. I further



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urge that such a Committee be established as quickly as possible and that the matter be dealt with speedily, taking full account of the rights of the students in every case.

If you accept my recommendation, would you please direct Corporate Governance to establish the appropriate Disciplinary Committee.

Yours sincerely

Bernard Carey

It is noteworthy that, without there having been any investigation into the allegations since they were fi rst raised by Mr Firns in late January, Professor Carey in this last mentioned letter was now prepared to acknowledge that there seemed to be “suffi cient evidence to justify a prima facie case with each of the allegations”. That is a conclusion, of course, that could and should have been reached and acted on by Dr Ryder, Professor Holmes and Professor English as early as February. Mr Firns had indeed, by the detailed information that he had supplied when he fi rst put the University on notice of the matters that he had discovered, provided prima facie evidence of plagiarism, a fact apparently ignored by everyone with responsibility for dealing with the allegations up until 11 July 2003, some fi ve and a half months or so after they were fi rst raised. Given the sustained inaction over that time it is somewhat ironical that Professor Carey was now asking for a Disciplinary Committee to be established “as quickly as possible”.

Failure to brief the Senior Executive Group

On 31 March 2003 Professor Lamond met with Professor Holmes. On that date Professor Holmes also attended a Senior Executive Group meeting. Professor English told the Commission that he heard Professor Holmes give a “brief but accurate summary of the fi ndings and recommendations of the committee”. He did not recall any reference by Professor Holmes to “any future plans” for the matter. He said Professor Holmes referred to the “sensitivity” of the matter – “that he was giving a briefi ng that he didn’t want people to talk about”. A copy of the report was not tabled at this meeting.

The membership of the Senior Executive Group included Professors Holmes, English, MacDonald, Connor and Carey, as well as the Pro Vice-Chancellors of the other Faculties.

Professor English said that there was no action by the Senior Executive Group arising out of that meeting but that he and Professor Holmes were to act in accordance with the discussion between them earlier that day.

According to an extract from the Academic Senate Minutes relating to a meeting held on 9 April 2003 and the evidence of Professor Connor, Professor English reported on the Lamond Report, although no copy of it was tabled. This evidence reveals that Professor English reported that the inquiry had been observed by a lawyer and that staff members named in the report were to be given ten days to respond. The minutes of the meeting state:

Any negative findings will be reported to the Council, while any modifications to the “Policy for the Prevention and Detection of Plagiarism” will come to the academic Senate.

There is no mention in the minutes of any reference by Professor English at the meeting of 9 April 2003 to the fact that the Lamond inquiry had failed to investigate the plagiarism allegations or to the disappointment which he told the Commission he had had when he read the report. There is also no reference in the extract of the minutes as to the need for any action in light of the defi ciency in the Lamond inquiry and its report.

The failure to fully and properly brief the Senior Executive Group and provide its members with a copy of the report was inexcusable. Given the failure by Professor Lamond’s inquiry to resolve the fundamental issues arising from Mr Firns’s allegations it was essential that the members of the Senior Executive Group as well as the Council itself be fully informed but they were not. Professor English claimed that Professor Holmes stated to him that “he did not want it to go beyond his offi ce. I counselled that we had to at least distribute a summary of it and he said not – you know, he did not want it to go beyond his offi ce” He explained that this meant the report was not to go beyond “that group who constituted the Vice-Chancellor’s division”.

Professor English claimed in his evidence that he had given advice to Professor Holmes that the fi ndings, “not necessarily the full report” should be distributed widely including to Council. Professor English was asked:

[Assistant Commissioner] Q: Could you understand or perceive any reason

that would warrant not circulating it to, for example, Council members?

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A: Yes, the reason that I was given for neither of these reports going to the Council was that ‘They’ll be in the Herald the very next day’.

Q: Who said that?

A: The Vice-Chancellor.

Q: But I’m asking you for your opinion, having read the Lamond Report —

A: M’mm.

Q: — whether you could see any ground or justification for not releasing it, at least circulating it to relevant persons, in particular members of Council?

A: I could see no reason, no.

Q: Did you have the view that Council, indeed, were entitled to see the report —

A: Well, it’s more than a view to — Council is entitled to any information that Council seeks about the University.

Failure to brief the University Council

Professor English stated in his evidence that a copy of the Lamond Report should have been provided to the Council. He stated that a full copy was not given to Council because of Professor Holmes’s view based upon “staff being named in the report”. However, Professor English agreed that there could be no justifi cation for keeping the report from Council by reason of the “mild” fi ndings expressed in it. He re-emphasised, however, that “it was Professor Holmes’s decision that they should not go forth”.

Professor English did not recall any discussion about pursuing an option of providing a copy of the report to Council on a confi dential basis, an option the Commission considers was an obvious one if in fact there had been a basis for genuine and proper concern for protecting staff identities. It was an option he said that had been pursued on other occasions but that “leaks” had occurred. However, the risk of a leak of information from Council proceedings was a matter for which Council alone would have to take responsibility. It was not open to the Vice-Chancellor to deny Council the right to have the report on the basis that one or more of its members may breach confi dentiality.

In any event, as Professor English conceded in evidence, all relevant data about Firns’s allegations and the University’s apparent failure to respond appropriately to the allegations was by this time public knowledge, given especially the media exposure that the matter had by then received. Counsel Assisting put to him that all relevant information had been exposed:

Q: There simply wasn’t anything left, was there?

A: I don’t believe so.

Counsel Assisting submitted that there was never any valid reason for Professor Holmes to refuse to provide the Lamond Report to Council members in either open or closed session. The Commission accepts that submission and is of the view that it was Professor Holmes’s duty as Chief Executive Offi cer to advise Council upon a matter as serious as this. In particular, the defi ciencies in the Lamond inquiry should have been immediately disclosed to Council so that it could at the very least be appraised of developments that had given rise to an increased level of seriousness. By not disclosing the defi ciencies the Council was left in the dark and was accordingly unable to either take control over the matter, give appropriate directions in the interests of the University or participate in whatever way it considered necessary to properly resolve the matter.

Findings of fact

The failure to investigate

On the twin issues of the failure to act to have the plagiarism issue investigated and the suppression or restriction on publication of the Lamond Report, Professor English claims that he was subjected to a direction by Professor Holmes not to take action. His evidence, completely unsubstantiated by any record, was that he on two or three occasions urged Professor Holmes to send the assignments to the Discipline Committee.

When addressing with investigators the subject of the letter of 11 July 2003 referring the matter to the Discipline Committee Professor English made no reference to any repeated attempts by him to have Professor Holmes refer the matter for investigation. In reference to the letter of 11 July he said to the investigators “That was a late decision and I don’t know why it took so long”.



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Professor English’s attempts to explain away the inconsistency – that he didn’t know “the reason” for Professor Holmes’s delay – does not explain why, in commenting on the delay when interviewed by the investigators, he did not raise his alleged multiple attempts to get an investigation under way.

The Commission has given this aspect close consideration and rejects Professor English’s evidence that he two or three times spoke to Professor Holmes after 31 March and before 11 July urging him to investigate Firns’s allegations. It follows that his evidence which would seek to mitigate his own responsibility in the matter, having been rejected, that the Commission accepts the evidence of Professor Holmes on this aspect.

Given Professor English’s failure to record any of the critical communications that he has alleged to have had with Professor Holmes following the Lamond Report, the Commission has approached his evidence in relation to them with some caution. In particular, Professor English gave evidence to the Commission that Professor Holmes had told him that he did not wish to advance “the student discipline matter” (i.e. the WIRA matter), and that Professor Holmes, referring to the assignments, had said words to the effect:

This is 15 students with one essay worth … 5% in one subject. It shouldn’t be allowed to get this big.

Professor English was then asked:

Q: So you were taking that to be a view, a view by him that these matters did not warrant further investigation?

A: Yes.

This alleged statement by Professor Holmes, if it was in fact made, was quite obviously a very signifi cant one, amounting in effect to a direction by Professor Holmes not to pursue further investigation of the plagiarism allegations. However, although Counsel for Professor English, Mr Crawford-Fish, was assiduous in cross-examining Professor Holmes in some considerable detail, particularly in relation to conversations between Professor English and Professor Holmes, in later evidence it emerged that he had in fact provided no instructions with regard to this conversation to his counsel:

Q: But you agree that your Counsel didn’t put anything about the 15 students, one essay worth —?

A: I agree that my Counsel didn’t and I have no

clear recollection of giving that specific phrase to my Counsel.

Professor English denied that he had simply made up the statement which he had attributed to Professor Holmes. However, this segment of evidence by him indicates, the Commission believes plainly enough, that he was prepared to attribute damaging statements to Professor Holmes in circumstances when he had not even provided instructions on the particular statement when he had a full opportunity to do so.

The Commission accordingly rejects the evidence of Professor English that Professor Holmes made the statement to which reference has been made.

However, on another matter the Commission cannot accept Professor Holmes’s evidence. He said that he and Professor English agreed to defer action on investigating Mr Firns’s allegations until later and that he was waiting on Professor English to report to him when he had actioned the Lamond recommendations in relation to staff. The action in relation to staff was completed by 16 April 2003. There was no advice according to Professor Holmes from Professor English that he had completed the task delegated to him. However, Professor Holmes failed to question or pursue Professor English on his progress with that task before the fl urry of activity which occurred on 11 July and which the Commission has earlier found to have been responsive to the media probe. The Commission has concluded on the whole of the evidence that the alleged failure by Professor English to report to Professor Holmes does not provide a basis or justifi cation for the latter’s inaction.

The restriction on circulation of the Lamond Report

As to the restriction on the Lamond Report Professor Holmes stated that:

n Professor English did not, as Professor English claimed in evidence, urge him to release the report in a conversation on 24 March 2003. The Commission accepts his evidence on this point. There is no confi rmation of Professor English thereafter agitating for publication of the report as was put to Professor Holmes by Mr Crawford-Fish, Counsel for Professor English.

n He believed that he was prevented from publishing it due to staff confidentiality issues (what he termed “staffing matters”). That is a quite fallacious assertion and does

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not provide Professor Holmes with a basis for restricting publication of the Lamond Report.

The Commission has examined Professor English’s contentions that the responsibility for the delay between 28 March and 11 July was wholly due to the actions or directions of Professor Holmes. There is evidence that Professor Holmes did not wish to refer the matter to the Discipline Committee until the staff matter was dealt with. Even if this was so, the continued inaction thereafter is inexcusable. The evidence indicates that he consulted with Professor English immediately after the Lamond Report was available. There is no evidence of any attempt, let alone any insistence by Professor English, for Professor Holmes to take action to expose the Lamond Report for its defi ciencies. Instead Professor English put out a media release on 31 March 2003 implicitly endorsing the report. Whether or not the explanation lies in the fact that it may not have been seen by him to be in his interests to expose the failure in the Lamond investigation process, given that he personally had been responsible for establishing the inquiry, is diffi cult to say. The fact that he didn’t expose the weaknesses in the report is the aspect which tells against him.

The failure by Professor English to fully and properly brief the Senior Executive Group and advise it of the defi ciency in the Lamond Report is inexcusable. There was no attempt by him to take a strong stand in favour of referring the matter to the Discipline Committee after 31 March. Professor English elsewhere in evidence spoke of his disappointment with the Lamond Report – the fact that it failed to address the fundamental issue. Given that appreciation one would expect that he would then have taken all reasonable and necessary steps within his power to advise the Chancellor and/or the Council or to ensure that Professor Holmes did so.

The Commission was unimpressed, for reasons already stated, by Professor English’s evidence that he had urged referral of the matter with Professor Holmes on two or three occasions. One is left with the strong impression that Professor English was as happy as Professor Holmes to do nothing about further investigating both the plagiarism allegations as well as the failure by staff to properly investigate them. The inference is well open, and is one that the Commission draws from the evidence, that he was content not to fully and properly brief the Chancellor or the Council of the University or anyone else on the Lamond Report and all its defi ciencies. Apart from his oral evidence on this point, which the

Commission has rejected, there is no other evidence at all of Professor English exhibiting any concern about the fl awed outcome of the Lamond inquiry.

The Commission does not accept that as Deputy Vice-Chancellor Professor English was not under a duty to the governing authority of the University to advise it after the Lamond Report no matter what stance he said Professor Holmes was adopting. It is not to be overlooked that from 5 to 9 May and 21 to 31 May 2003 he was Acting Vice-Chancellor during Professors Holmes’s absences in those periods. In that office he was bound in accordance with his fiduciary obligations to inform the Chancellor, and to do what he could to inform Council, of the serious developments that had arisen from and in consequence of the Lamond Report.

The Commission notes that the confl ict between Professor Holmes and Professor English on the important issues to which reference has been made did not lend itself to a simple resolution. The lack of any contemporaneous recording of their decisions and actions left the matter to be resolved largely upon their competing versions. Whilst the Commission has not accepted Professor Holmes on all the issues that arose during the Commission’s hearings it has accepted him on several important issues of fact. The Commission generally found that Professor Holmes was prepared to make candid concessions against his interest at times and overall accepts him as a witness who was doing his best to accurately recollect and recount events.

Finding as to responsibility

The result of the fi ndings that the Commission has made is that Professor Holmes remained with ultimate responsibility for dealing with Mr Firns’s allegations and related staff matters following the Lamond Report. As indicated this does not, however, mean that Professor English had no responsibility to the University itself, to the Chancellor and to the Council of the University from that time. By then he had actual knowledge of the essential failure of the Lamond inquiry to resolve those matters and was accordingly bound to act in accordance with the Code of Conduct to do all he could to press immediately for that failure to be properly addressed. The Commission fi nds he did not do this. Such action would include providing fi rm advice in writing to both the Vice-Chancellor himself, to the Chancellor and to the Council once it became apparent that Professor Holmes was not moving to do so. Whilst Professor English gave



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advice to him to investigate in July he had by then become aware of the media interest to which earlier reference is made.

The Commission accepts that Professor Holmes had the primary responsibility to inform Council fully on the Lamond Report and the need for a full and proper inquiry and failed in that important duty. This does not, however, exonerate Professor English from bringing the matter to the attention of those involved in the governance and management of the University including the Chancellor and/or the Council once it became obvious that Professor Holmes had not done so and was not proposing to do so.

The failure by both Professor Holmes and Professor English to fully and properly advise the Academic Senate, the Senior Executive Group and/or the Council of the University represented a serious failure by each of them in their duty, in accordance with the Code of Conduct, to “perform any duties associated with their positions diligently, impartially and conscientiously, to the best of their ability” and in accordance with their contractual duty to so conduct themselves.

The consequences of not informing such bodies, including in particular the University Council, was that the opportunity for taking appropriate action immediately was lost. Professor Connor was asked:

Q: Do you believe that if the matter had gone to the Council for consideration, that the matter has not been investigated and no-one is investigating it, that the Council as a body would have taken the issue up?

A: I believe that if that had been made clear to the Council, they defi nitely would have insisted that the matter be taken up.

Q: By way of thorough investigation?

A: Yes, well by way of the cases going through the proper channels.

The following chapter discusses whether any aspect of the conduct of Professor Holmes and Professor English, as the Commission has found it in this chapter, constitutes corrupt conduct within the meaning of the ICAC Act.

The role of Professor Carey

Professor Carey did not involve himself in any action to investigate the matter following completion of the Lamond inquiry. As Pro Vice-Chancellor, he had specifi c authority under the Plagiarism Policy with respect to plagiarism. The Plagiarism Policy stated:

The Pro Vice-Chancellor and the Heads of School are responsible for the implementation of the policy in each Faculty.

The Pro Vice-Chancellor under the Policy was empowered to impose penalties for conduct that contravenes the policy. The Pro Vice-Chancellor was also empowered to conduct an initial inquiry under the Policy (clause 4.0) and certain functions are specifi ed in clause 5.0 related to his or her investigations.

Professor Carey took no action to ascertain the outcome of the Lamond Report nor to question why no action was being taken following its release in the interests of the students’ and of the University. He maintained that he had no responsibility to do so given that the issue was being centrally managed and was effectively outside his control.

The Commission accepts this contention as reasonable up to the time the Lamond Report was delivered (28 March 2003). What the Commission does not accept as reasonable is his failure to even question Professors Holmes and English on the lack of resolution. It is to be remembered that he was the person who first advanced Professor Lamond as the person who would be an appropriate person to investigate the matter as an independent third party. Whilst Professor Carey’s passivity following the delivery of the Lamond Report is a matter of concern the evidence does not establish, to the required standard, a wilful disregard by him of his duty for extraneous or improper purpose.

61

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The Commission is required as one of its principal functions to investigate any allegation or complaint that, or any circumstances which, in the Commission’s opinion, imply that corrupt conduct may have occurred. In exercising its functions, the Commission is to regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns.

Corrupt conduct may take a number of forms and its nature will be shaped by the variety of circumstances in which it occurs.

Tertiary institutions such as the University of Newcastle are largely funded by public monies made up of both Federal and State funds. They have a responsibility to the community to ensure that students undertaking courses of study to become eligible or qualify for professional pursuits have properly complied with and fulfi lled course requirements. Universities then have to guard against any possible misconduct by students in order to ensure, in the community’s interests, the integrity of their processes. Any form of misconduct by those with management responsibilities that permits student misconduct to go unchecked potentially carries with it a range of serious consequences for both the institution itself and for the individual who is responsible for reprehensible conduct of that kind.

Of course, not all misconduct by public offi cials will constitute “corrupt conduct” under the ICAC Act. It may do so, however, where a public offi cial is motivated to permit allegations of serious plagiarism to go unchecked and does so for extraneous or improper purposes. In the application of the ICAC Act in each investigation it is fundamental that fact-fi nding is based upon cogent evidence that satisfi es the standard of proof as discussed in Appendix 4 to this report. It is also necessary to apply such legal principles as govern the exercise of the Commission’s functions. Accordingly, in this chapter the discussion will identify the principles and the approach that the Commission should apply in each matter in considering whether corrupt conduct has been established. That discussion will then apply the principles to the Commission’s ultimate fi ndings.

Determining corrupt conduct

Three steps are involved in determining whether or not corrupt conduct has occurred. The fi rst step is to make fi ndings of fact. The second step is to determine whether

the conduct which has been found as a matter of fact comes within the terms of section 8 of the ICAC Act. The third step is to determine whether the conduct also satisfi es section 9 of the ICAC Act.

The Commission’s fi ndings of fact are set out in the previous chapters of this report. It remains necessary to undertake the remaining two steps to determine if corrupt conduct has occurred.

The concept of “corrupt conduct” is broadly defi ned in sections 8 and 9 of the ICAC Act. Reproduced hereunder are the provisions of sections 8 and 9 so far as is relevant to the present matter:

8 General nature of corrupt conduct8 General nature of corrupt conduct

(1) Corrupt conduct is:

(a) any conduct of any person (whether or not a public offi cial) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of offi cial functions by any public offi cial, any group or body of public offi cials or any public authority, or

(b) any conduct of a public offi cial that constitutes or involves the dishonest or partial exercise of any of his or her offi cial functions, or

(c) any conduct of a public offi cial or former public offi cial that constitutes or involves a breach of public trust, or

(d) any conduct of a public offi cial or former public offi cial that involves the misuse of information or material that he or she has acquired in the course of his or her offi cial functions, whether or not for his or her benefi t or for the benefi t of any other person.

(2) Corrupt conduct is also any conduct of any person (whether or not a public offi cial) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of offi cial functions by any public offi cial, any group or body of public offi cials or any public authority and which could involve any of the following matters:

Chapter 6: Findings as to corrupt conduct and statements pursuant to section 74A(2) of the ICAC Act

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(a) offi cial misconduct (including breach of trust, fraud in offi ce, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition)…”

[Sub-paragraphs (b) to (y) are not reproduced here.]

Section 9(1) provides:

9 Limitation on nature of corrupt conduct 9 Limitation on nature of corrupt conduct

(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve:

(a) a criminal offence, or

(b) a disciplinary offence, or

(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public offi cial, or

(d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament—a substantial breach of an applicable code of conduct.

By way of preliminary observation it is noted that the popular notion of corruption – the abuse of official position for pecuniary gain – is not definitive of other forms of conduct that may fall within the statutory expression “corrupt conduct”. In this investigation there is no evidence that the public officials in question acted as they did for personal (e.g. financial) gain. However, certain types of conduct by public officials involving an intentional abuse of public trust may in some circumstances and subject to proof of necessary matters nonetheless be “corrupt” for the purposes of the ICAC Act.

Relevant matters in determining whether the conduct of an individual is corrupt include the wilfulness of the conduct, the motive behind it and the seriousness of the breach, measured both by the extent to which it departed from applicable standards and by reference to the consequences of the conduct.

Plainly there will be cases where the conduct of employed officials constitutes “serious misconduct” for the purposes of employment law whilst not amounting to “corrupt conduct” for the purposes of the ICAC Act. It is therefore necessary to identify whether the conduct involves matters capable of constituting particular conduct a breach of public trust and with it criminal law and/or other public law consequences. It is against this background that the Commission turns to examine the notion of “serious misconduct” in terms of the relevant private law principles applicable to employment contracts.

In the context of employment law, general contractual principles are often supplemented or qualified by industrial agreements or awards. However, in most if not all cases it may be said as a general principle that a wilful disregard of the essential conditions of the contract of service will be sufficiently serious to warrant summary termination of the contract of service.45 Many years ago the High Court stated:

Conduct which in respect of important matters is incompatible with the fulfi lment of an employee’s duty, or involves an opposition, or confl ict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confi dence between employer and employee, is a ground for dismissal…But the conduct of the employee must itself involve the incompatibility, confl ict, or impediment, or be destructive of confi dence.46

In the case of public offi cers (including University management personnel) the ordinary obligations arising from the relationship of employer and employee are, of course, supplemented by obligations that require them to act in the public interest. In that respect those with management functions at publicly-funded universities are bound by fi duciary-like obligations to act in the best interests of the university itself, its enrolled student population and the broad university community. University managers in that sense occupy what in another context has been described as “an offi ce of trust concerning the public”.47 Individual managers employed by tertiary institutions such as a publicly-funded university, who wilfully act to undermine university standards for improper ends or objectives will be in breach of both their private law and public

45 Bruce v AWB Ltd (2000) 100 IR 129 per Sunberg J at 140.46 Blyth Chemicals v Bushnell (1933) 49 CLR 66 per Dixon and McTiernan JJ at 81-82.47 R v Bembridge (1783) 3 Doug KB 327 per Lord Mansfi eld CJ at 332.


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law obligations. The conduct required and expected of public offi cials is informed by standards that exist to protect and advance the relevant public interest. That interest, for the purpose of the present investigation, requires the protection and enforcement of University standards and processes and to ensure that the results and qualifi cations awarded by the University are not falsifi ed by fraudulent behaviour or other wrongdoing by enrolled students and others.

Offi cial misconduct – the common law principles

The common law offence of offi cial misconduct (also referred to as misconduct in public offi ce) is relevant to the present investigation for a number of reasons. First, it is specifi cally referred to in section 8(2) of the ICAC Act.

Second, as the element of “culpability” is central in determining whether conduct is “corrupt” under the ICAC Act it is instructive to bring into account the general legal principles by which culpability may be established at common law. If conduct may be adjudged “corrupt” in accordance with those principles, it will almost certainly constitute “corrupt conduct” under the ICAC Act.

Third, as a common law criminal offence it is also relevant to any consideration of section 9(1)(a) of the ICAC Act.

Fundamentally the offence of offi cial misconduct depends upon:

n the “nature of the relevant power or duty” of the offi cer or of the offi ce which is held; and

n the “nature of the conduct” said to constitute the commission of the offence.48

The fi rst of these throws up the difference between the exercise of a power and the failure to act where there is a duty to act. Either may constitute an abuse of offi ce given certain conditions. The present investigation involves an examination of conduct in the broad sense of both acts and omissions to act. Acts and omissions constituting a course of conduct, directed towards achieving an unauthorised objective and one which is

inimical to the interests of the University’s standards and integrity, could in some circumstances involve or constitute corrupt conduct under the ICAC Act.

The second factor, the “nature of the conduct”, has been examined in some detail in this investigation for the purpose of establishing any culpability associated with the conduct of University offi cials. Motive, purpose or intent will often be critical in determining whether particular conduct is corrupt. Culpability in this context is to be distinguished from “misconduct” and even “serious misconduct” in an employment law sense. It involves the added notion of an “abuse” of power or offi ce suffi cient to amount to a breach of public trust. Dishonesty, partiality and certain other forms of impropriety may render what may be termed “employment misconduct” corrupt. The task in determining the nature of the conduct is determining whether the evidence establishes the necessary culpability in one or other of these forms.

The objective of the common law offence is directed towards ensuring fi delity in public offi ce by those public offi ce-holders who have public duties to perform and who otherwise, by the exercise of public power, or the wilful neglect of public duty, may abuse the offi ce or the power or both that is entrusted to them.

The elements of the offence of offi cial misconduct in public offi ce are:

(1) a public offi cial;

(2) in the course of or in relation to his offi ce;

(3) wilfully misconducts himself; by act or omission;

(4) without reasonable excuse or justifi cation; and

(5) where such misconduct is serious, having regard to the responsibilities of the offi ce and the offi ceholder, the importance of the public objects which they serve and the nature and extent of departure from those responsibilities.49

To constitute common law offi cial misconduct the relevant acts or omissions must be so far below acceptable standards as to amount to an abuse of the public’s trust in the offi ceholder. 50

48 Sin Kam Wah Lam Chuen 1p v HKSAR [2005] HKCFA 27.49 Sin Kam Wah Lam Chuen 1p v HKSAR, ante, per Mason NPJ at 37.50 Attorney-General’s Reference (No. 3 of 2003) [2004] 3WLR 451, per Pill LJ at 467.



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The question of whether there is such an abuse is to be decided by reference to the motive with which the public offi cer acts and the consequences of the breach. 51

In this respect Mason NPJ in Sin Kam Wah stated:

… The misconduct must be deliberate rather than accidental in the sense that the offi cial either knew that his misconduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justifi cation is culpable.52

Mason NPJ emphasised that a requirement in establishing the offence is that it must involve serious as well as culpable misconduct. Whether it is established in a particular case depends upon the context which is partly to be determined having regard to the responsibilities of the offi ce and the offi ceholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

These authorities emphasise that there must exist a state of mind that is “culpable”. Culpability in terms of improper motive may involve a motive that is dishonest, corrupt or malicious. Typically, a power may be exercised with a view to conferring a benefi t or advantage on the public offi cial himself or a relative or friend. Such cases involve self-serving or improper conduct involving an actual and extreme form of confl ict of duty and private interest. However, the statutory concept of corruption though of course including such conduct embraces a wider range of impropriety. The issue therefore is whether the conduct of the Newcastle University offi cials in question falls within the range of misconduct to which the ICAC Act is directed.

In considering whether particular conduct is corrupt for the purposes of the ICAC Act, two points should be noted:

n First, corrupt conduct does not include conduct that consists of inadvertent conduct or the bona fi de exercise of offi cial functions no matter how erroneous that exercise may be;

n Second, whilst the inclusion of partial conduct broadens the Commission’s reach considerably it does not apply unless –

(a) there was in the matter a duty upon the offi cial(s) in question to act impartially in discharging offi cial functions, and

(b) the evidence before the Commission establishes that the offi cial(s) acted improperly. What constitutes an “improper” exercise of public power is examined below.

Breach of public trust

Under section 8(1)(c) of the ICAC Act, corrupt conduct is conduct of a public offi cial that constitutes or involves a breach of public trust.

Whilst conduct that can be said to involve a breach of public trust may take one of many different forms or arise from a wide range of circumstances it will, in order to constitute corrupt conduct under the ICAC Act, usually require proof of similar matters that are necessary to constitute the common law offence of offi cial misconduct. However, as Mahoney JA in Greiner v Independent Commission Against Corruptionstated (at 165) the expression “breach of public trust” has been given a broad meaning and there is no closed category of circumstances which may constitute such a breach.53

In the Commission’s Report on Investigation into Circumstances Surrounding the Payment of a Parliamentary Pension to Mr P M Smiles, the Commission observed that breach of public trust is part of the law relating to misbehaviour in public offi ce or breach of public trust.

However, as the Commission has recently observed, the term “breach of public trust” in section 8(1)(c) is not confi ned to conduct which may constitute such an offence and indicated that it may in some cases apply to conduct not criminal in nature.54 The central point is that breach of public trust arises wherever a public offi cer entrusted with powers and duties for the public benefi t has in some way abused them or has abused his or her public offi ce.55

Partiality in exercising offi cial functions

Sections 8(1)(a) and 8(1)(b) of the ICAC Act refer to partiality in the exercise of offi cial functions.

51 Attorney-General’s Reference (No. 3 of 2003), ante, at 467.52 Sin Kam Wah Lam Chuen Ip v HKSAR, ante, per Mason NPJ at 37.53 See also ICAC 2004, Report on investigation into the conduct of the Hon J. Richard Face, June 2004, p.39.54 ibid, p.39.55 This is the formulation made by P.D. Finn (now Mr Justice Finn of the Federal Court of Australia) in “Public Offi cers: Some Personal Liabilities”

(1977) 51 ALJ 313 at 315.

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In the context of this matter “partiality” potentially could arise in at least two ways. First, if offi cials of the University have exercised their offi cial functions partially in order to confer an improper benefi t (or extend improper leniency) to students of the University (e.g. by in some way deliberately ignoring dishonest or fraudulent conduct by such students).

Second, if University offi cials were to elect not to investigate complaints of possible misconduct by other offi cials as a personal favour, contrary to their duty, in the prospect of a return favour or advantage.

There is no evidence which would support a fi nding against any of the offi cials under the second of these two examples. There is, however, evidence of an intention by Drs Ryder and Rugimbana to act for the purpose of improperly conferring an advantage on a particular group of students, being those 15 WIRA students whose assignments were the subject of a re-mark, for the purpose of securing for the University an advantage in the development of its offshore ventures. The question of the motive or purpose of these two offi cials is therefore an important issue in determining the culpability of their conduct.

The duties of public offi ce

It is appropriate to consider the nature of the duties of the holder of a public offi ce. In GJ Coles & Co Limited v Retail Trade Industrial Tribunal , McHugh JA stated:

A public offi ce holder assumes the burdens and obligations of the offi ce as well as its benefi ts. By accepting appointment to the offi ce, he undertakes to perform all the duties associated with that offi ce and, as long as he remains in offi ce, he must perform all its duties: Peery v Coffman (1964) 137 SE 2d 5 at 8; State ex rel Preissler v Dostert (1979) 260 SE 2d 279 at 286. The duties of a public offi ce include those lying directly within the scope of the offi ce, “those essential to the accomplishment of the main purpose for which the offi ce was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purpose: Nesbitt Fruit Products Inc v Wallace (1936) 17F Supp 141 at 143.56

Dr Paul Ryder and Dr Robert Rugimbana

On the fi ndings of fact made in Chapter 3 it is apparent that Dr Ryder and Dr Rugimbana acted in breach of their duty to fully and properly investigate Mr Firns’s allegations and instead substituted an unauthorised re-marking procedure which was performed or undertaken by Dr Zeffane.

There can be no doubt on the evidence that each wilfully acted in breach of their respective duties to properly investigate or to ensure a proper investigation of the allegations in accordance with the University’s Plagiarism Policy. As expressed in Chapter 3, while there is no evidence that they acted dishonestly for purposes of self-enrichment, their conduct is not explicable on the basis of inadvertence or error. The Commission has found that both Dr Ryder and Dr Rugimbana were motivated by a desire to avoid any potential adverse consequences that the allegations may have had for the offshore program. Such a motive was an entirely illegitimate one as it entailed the undermining of academic standards by effectively side-lining the proper investigative processes required to be undertaken in accordance with University policy. In other words, they simply sought to ignore and avoid the issue. There can be no doubt that in so acting each were in serious breach of their obligations to act diligently and in the interests of the University.

The nature and seriousness of the departure from relevant standards of managerial conduct is an important factor in the issue of culpability inherent in the statutory concept of corrupt conduct. Conduct of public offi cials which is in breach of public law obligations (such as improper preferential treatment) plainly involves conduct of a level of gravity that satisfi es the provisions of sections 8 and 9 of the ICAC Act.

Dr Rugimbana

Taking Dr Rugimbana fi rst, and in light of the fi ndings of fact set out in Chapter 3, it is the Commission’s fi nding that for the purposes of section 9(1)(a) of the ICAC Act, Dr Rugimbana’s conduct could constitute or involve a criminal offence, being the common law offence of offi cial misconduct. The elements of the offence could be constituted by his involvement, as

56 GJ Coles & Co Limited v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 per McHugh JA at 524.



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set out in the fi ndings of fact in Chapter 3, in devising and implementing the re-marking procedure contrary to University policy and without an investigation into the truth or otherwise of the plagiarism allegations raised by Mr Firns. His motivation for doing so was the desire to avoid potential adverse consequences that the plagiarism allegations may have had for the University’s offshore program. The Commission has found that such a motive was entirely illegitimate.

Dr Rugimbana was at the relevant time a public official and his various decisions and actions were all conduct in the course of or in relation to his public office. He acted wilfully, that is deliberately, and intentionally. There was no element of accident or inadvertence about what was then his course of conduct. At no time has Dr Rugimbana advanced any reasonable excuse or justification for at all times rejecting or ignoring the comments and marks of Mr Firns.

It is also the Commission’s finding that Dr Rugimbana’s conduct adversely affected or could have adversely affected, either directly or indirectly, the exercise of official functions by University officials and the University itself and, further, the conduct could involve official misconduct, being a breach of trust, so as to fall within section 8(2)(a) of the ICAC Act. The acts and decisions taken by Dr Rugimbana were part of a chain of events which resulted in inappropriate marks being entered into the University’s database so that students obtained a benefit by passing a subject that they may not have been eligible to pass, had the re-marking not occurred and had the Plagiarism Policy been followed.

While a breach of public trust in section 8(1)(c) is wider than just the common law offence of misconduct in public office, when the components of that offence could exist then the components of such a breach could also exist. The Commission finds that the conduct of Dr Rugimbana, referred to above could constitute or involve a breach of public trust within the meaning of section 8(1)(c) of the ICAC Act.

The Commission also fi nds that, for the purpose of section 8(1)(b) of the ICAC Act, Dr Rugimbana acted partially in the exercise of his offi cial functions. Partiality is evidenced by his actions in failing to

apply the University’s plagiarism policy and failure to investigate the allegations made by Mr Firns, thereby improperly conferring an advantage on a particular group of students, being those 15 WIRA students whose assignments were the subject of a re-mark, for the purpose of securing for the University an advantage in the development of its offshore venture.

Accordingly, the Commission fi nds that Dr Rugimbana engaged in corrupt conduct.

Dr Ryder

In light of the fi ndings of fact set out in Chapter 3 of this report, it is the Commission’s fi nding that, for the purposes of section 9(1)(a) of the ICAC Act, Dr Ryder’s conduct could constitute or involve a criminal offence, being the common law offence of offi cial misconduct. The elements of the offence could be constituted by his involvement, as set out in Chapter 3, in devising and implementing the re-marking procedure contrary to University policy and without an investigation into the truth or otherwise of the plagiarism allegations raised by Mr Firns. This includes the deliberate misleading of Mr Firns on 25 February 2003 about the processes being followed in relation to the 15 assignments. His motivation for failing to have the plagiarism allegations properly investigated in accordance with University policy was the desire to avoid potential adverse consequences that the plagiarism allegations may have had for the University’s offshore program. The Commission has found that such a motive was entirely illegitimate.

Dr Ryder was a public offi cial at the relevant time and his various decisions and actions were all conduct in the course of or in relation to his public offi ce. He acted wilfully and intentionally. There was no element of accident or inadvertence about what was then his course of conduct. At no time has Dr Ryder advanced any reasonable excuse or justifi cation for at all times rejecting or ignoring the comments and marks of Ian Firns. The facts available to Dr Ryder at the time did not support his decisions then or his contentions since.

It is also the Commission’s fi nding that Dr Ryder’s conduct adversely affected or could have adversely affected, either directly or indirectly, the exercise of offi cial functions by various University offi cials and the University itself and, further, the conduct could

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involve offi cial misconduct, being a breach of trust, so as to fall within section 8(2)(a) of the ICAC Act. The acts and decisions taken by Dr Ryder were part of a chain of events which resulted in inappropriate marks being entered into the University’s database so that students obtained a benefi t by passing a subject that they may not have been eligible to pass, had the re-marking not occurred and had the Plagiarism Policy been followed.

While a “breach of public trust” in section 8(1)(c) is wider than just the common law offence of misconduct in public offi ce, when the components of that offence could exist then the components of such a breach could also exist. The Commission fi nds that the conduct of Dr Ryder, referred to above, could constitute or involve a breach of public trust within the meaning of section 8(1)(c) of the ICAC Act.

The Commission also fi nds that, for the purpose of section 8(1)(b) of the ICAC Act, Dr Ryder acted partially in the exercise of his offi cial functions. Partiality is evidenced by his actions in failing to apply the University’s plagiarism policy and failing to properly investigate the allegations of plagiarism, thereby improperly conferring an advantage on a particular group of students, being the 15 WIRA students whose assignments were re-marked, for the purpose of securing for the University an advantage in the development of its offshore venture.

Accordingly, the Commission fi nds that Dr Ryder engaged in corrupt conduct.

In addition to those matters above, the conduct of Drs Ryder and Rugimbana breached in a fundamental way central obligations under their respective employment contracts which could, had they continued their employment with the University, have warranted consideration of disciplinary action in the form of summary dismissal. As such their conduct would also satisfy the requirements of sections 9(1) (b) and 9(1)(c) of the ICAC Act.

Statement of fi ndings in relation to corrupt conduct

The Commission formally states the fi nding that that the conduct of Dr Paul Ryder and Dr Robert Rugimbana referred to above is corrupt conduct for the purpose of the ICAC Act.

Dr Rachid Zeffane

The role played by Dr Zeffane in this matter gives rise to a number of concerns. He appears to have played a compliant role in re-marking these assignments on their face without attempting to investigate for plagiarism even though he knew that the previous marker had claimed that plagiarism existed. The question is whether he was knowingly participating in an exercise to suppress evidence of plagiarism in deliberate breach of the University’s policy.

In respect of Dr Zeffane, fi ndings are made as to his failure to undertake a proper assessment of the assignments when requested to undertake the remarking procedure by Dr Ryder. Those fi ndings include a fi nding as to Dr Zeffane’s knowledge that the assignments in question had been identifi ed by the previous marker (Mr Firns) as containing plagiarised material. The Commission fi nds in those circumstances that there was a particular reason, beyond the standard that ordinarily applied to a marker of assignments, for Dr Zeffane to be on inquiry to ensure that any assessment by him took into account any identifi able plagiarism. The Commission fi nds that Dr Zeffane failed to employ any methodology or undertake any inquiry to determine whether or not the assignments contained plagiarised material. In this respect the Commission fi nds that Dr Zeffane failed to act in the performance of his duties with the necessary diligence and application that was required by the terms of his contract of employment, including the Code of Conduct promulgated by the University.

The evidence does not however permit a fi nding of the gravity of corrupt conduct to be made against Dr Zeffane. He was given a limited brief – to re-mark the assignments without any instruction to investigate for plagiarism. The fact that he did not employ a checking method for plagiarism indicates a high level of incompetence and a disregard of tell-tale signs that Drs Ryder and Rugimbana were asking him to effectively disregard Firns’s allegations. He in other words appears



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to have been infl uenced by statements that were dismissive of Firns’s allegations and allowing himself to be infl uenced by an extraneous factor, indicated in his handwritten note referred to in Chapter 3 of this report, the possible effect of certain failure rates may have “in a highly competitive market”. Whilst Dr Zeffane’s conduct raises issues of breach of duty in terms of what may be termed “employment misconduct” the Commission is of the opinion that the evidence does not admit of a fi nding against him of corrupt conduct within the provisions of the ICAC Act.

Statement of fi nding in relation to corrupt conduct

The Commission formally states that that the conduct of Dr Rachid Zeffane referred to in this report is not found to be corrupt conduct for the purpose of the ICAC Act.

Professor David Lamond

The Commission has made fi ndings that Professor Lamond was not suffi ciently impartial or objective in undertaking his inquiry. He also lacked appropriate experience. However it should be made clear these fi ndings are not to be taken as impugning his integrity. There is no evidence of any improper motivation on his part.

Accordingly, the Commission formally states that the conduct of Professor David Lamond referred to in this report is not found to be corrupt conduct for the purpose of the ICAC Act.

The conduct of Professors English and Carey in relation to the conduct of the Lamond inquiry is considered later in this chapter.

Actions subsequent to the Lamond Report

The failure by those with primary responsibility to properly manage a public authority may involve elements or aspects reaching beyond ineptitude or ineffi ciency and justify dismissal from offi ce. Such inaction or failure may in some circumstances fall within the statutory concept of corrupt conduct which has a wider operation than the popular meaning of the term.57 Such conduct by omission can “adversely affect” or “could adversely affect” the exercise of offi cial function, and other public offi cials on by a public authority” within the terms of section 8(1)(b).

The Commission has considered whether the failure of either or both of Professor Holmes and Professor English to bring to the attention of the Council of the University the failure or defi ciencies in the Lamond Report, constituted corrupt conduct within section 8(1) of the Act.

The Commission determined in its Report on investigation into the conduct of certain offi cers of the New South Wales Grains Board, published in August 2003, that the serious and persistent failure of senior offi cers who had actual knowledge of grave problems in the Board’s accounting system to bring that fact to the attention of the board of directors was a culpable failure. The Commission stated that it deprived the board of directors, as a group of public offi cials, of the opportunity to act and such failure could impact upon, that is it could “adversely affect” the exercise of the board of directors’ public functions in managing the authority. If it did have that effect, the fi rst limb of the defi nition of corrupt conduct in section 8 would be satisfi ed.

The answer to whether such a failure does satisfy those provisions, the Commission stated in its report on the NSW Grains Board investigation, is “a matter of degree”. The seriousness of failure to act may be infl uenced by particular or specifi c duties of the relevant public offi cial(s) responsible for any inaction or non-disclosure, by the length of or the persistence of the failure, by the gravity of the consequence of the failure to report and whether such failure impacts upon specifi c responsibilities vested in the relevant board of directors. Failure or inaction involving elements such as these may amount to offi cial misconduct by an

57 ICAC 2003, Report on investigation into the conduct of certain offi cers of the New South Wales Grains Board, August 2003, p.66.

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offi cer “within whose job description rests responsibility for communicating these facts to the Board”.58 If the failure is ill-motivated it may provide grounds for dismissal. In the Grains Board investigation the executives who failed in their duty to report to the board of directors did so, the Commission found:

...because they knew perfectly well it would cost them, or at least one of them, their job for the truth to become known. That is the inference I draw from the evidence. However, even if I am wrong in that inference, whatsoever the reason was for not disclosing the matter, it could not be a proper reason, that is to say, a reason consistent with the performance of their duty.59

The Commission has examined the failure or inaction by Professor Holmes to disclose to the Council or other authority within the University the failure of or defi ciencies in the Lamond Report, in particular the failure to probe the plagiarism allegation. The Commission has also considered his failure to provide advice as to what should be done in light of the defi ciencies in the Lamond Report as having been a management function.

The Lamond investigation was not a matter that the Council as the governing body of the University had specifi c responsibility for. It was primarily a management function. The Council’s interest in the matter would, of course, arise once senior management had decided for whatever reason that they were not subsequent to 28 March 2003 going to pursue the investigation of the plagiarism allegations and associated staff inaction. The failure by Professor Holmes and Professor English to inform the Council and/or other relevant University authorities of these matters lasted for the period 28 March to 11 July 2003. Whilst their inaction was inexcusable their conduct does not in the judgement of the Commission possess those elements to the degree that they existed in the Grains Board investigation. Specifi cally there is no clear evidence that the inaction of Professor Holmes or Professor English following the Lamond Report and before 11 July 2003 was motivated by a desire to hide from the Council their own conduct out of an instinct of self protection or self preservation in relation to their employment contract.

Professor Roger Holmes


The Commission formally states that the conduct of Professor Roger Holmes referred to in this report is not found to be corrupt conduct for the purpose of the ICAC Act.

Professor Brian English

In respect of Professor English, who, as has been stated, remains in the employment of the University of Newcastle and occupies the position of Deputy Vice-Chancellor, the Commission has included in this report a number of fi ndings in respect of his conduct associated with:

n the task that had been delegated to him by Professor Holmes of establishing and supporting the inquiry process conducted by Professor Lamond;

n the appointment of Professor Lamond and the failure by Professor English, both before and after Professor Lamond’s appointment, to properly consider the facts as to Professor Lamond’s associations with the University of Newcastle and persons employed by the University in determining whether he was, and would be seen to be, sufficiently independent and impartial of the University in conducting an inquiry into possible impropriety by members of staff of the University;

n the fact that Professor Lamond did not hold the requisite experience to conduct an investigation involving allegations of impropriety of staff and that that matter was not examined adequately or at all by or at the direction of Professor English;

n the failure of or deficiencies in the inquiry process conducted by Professor Lamond and the implications of that failure or those deficiencies, in particular, for the rights of the students concerned and for the interests of the University itself;

58 ibid, p. 68.59 ibid, p.69.



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n the evident need for immediate action, including a report to the Council and/or to any other relevant University authority as a result of the deficiencies in the Lamond Report and the steps that were required to address such deficiencies;

n the action of Professor English on 11 July 2003 in having the plagiarism allegations investigated by referral to the Discipline Committee as a response to media interest.

The Commission has also made fi ndings in this report that Professor English, both in his capacity as Deputy Vice-Chancellor and as Acting Vice–Chancellor at the relevant times during 2003, contrary to the requirement of the Code of Conduct, failed to maintain any or proper documentation with respect to important decisions and advice or actions taken by him in relation to the plagiarism allegations and related or associated matters.

Whilst Professor English’s conduct raises issues of breach of duty in terms of what may be termed “employment misconduct” the Commission is of the opinion that the evidence does not admit of a fi nding against him of corrupt conduct within the meaning of the ICAC Act.


The Commission formally states that the conduct of Professor Brian English referred to in this report is not found to be corrupt conduct for the purposes of the ICAC Act.

Professor Bernard Carey

The Commission has considered the evidence concerning Professor Carey, his role in proposing Professor Lamond to undertake the inquiry into the plagiarism allegations and related matters and his failure to pursue these matters following the completion of the Lamond inquiry.

The Commission has had regard, in particular, to the fact that Professor Carey on the evidence was not directly involved in the decisions and procedures that led to the fl awed re-marking of the assignments and that from early March responsibility for dealing with all relevant aspects of the matter was taken over

by what has been termed “central administration”. The Commission has elsewhere in this report considered in some detail the conduct of Professors Holmes and English in that respect.

The evidence would well support the submissions of Counsel Assisting the Commission that Professor Carey ought to have disclosed further information than he did to Professor English about his past association with Professor Lamond and to have appreciated that that association, together with his line-management responsibility for Dr Ryder, would at least have given rise to the perception of a possible confl ict of interest.

The other area of concern was the apparent preparedness of Professor Carey to later leave the matter in the hands of “central administration” without questioning what was happening. As Counsel Assisting pointed out, as Pro Vice-Chancellor the University’s Plagiarism Policy provided Professor Carey with considerable authority in relation to specifi ed matters. Counsel Assisting submitted:

…there is no basis to accept the assertions from Professor Carey that he had no capacity to call into question the obvious failure of his more senior offi cers to do something.

The submission was put by Counsel Assisting that Professor Carey’s inaction in allowing Dr Ryder and others to deal with the allegations by way of the re-marking procedure constituted a breach of duty by him given in particular his role as Pro Vice-Chancellor under the Plagiarism Policy. It was submitted that his failure in this respect constituted a breach of duty in his role as Pro Vice-Chancellor.

Whilst the Commission acknowledges the force of these submissions, in the absence of evidence that Professor Carey was motivated by an improper or extraneous factor, the Commission concludes that the evidence is not suffi ciently cogent to establish that his conduct constituted a breach of public trust or otherwise fell within the provisions of sections 8 and 9 of the ICAC Act. The Commission is mindful that, where there is a failure by a public offi cial to perform a duty and the other elements that render such inaction offi cial misconduct are satisfi ed, issues of motive are not always determinative. However, in the unusual facts of this matter where there was an appropriate delegation to Dr Ryder and an assumption of control by the most senior administrators of the University, it is more diffi cult

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to establish that Professor Carey’s failure to act in the respects earlier discussed amounted to an abuse of offi ce by him.


The Commission formally states that the conduct of Professor Bernard Carey referred to in this report is not found to be corrupt conduct for the purposes of the ICAC Act.

Section 74A(2) statement

The Commission is required by the provisions of section 74A(2) of the ICAC Act to include in this report, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:

(a) the prosecution of the person for a specifi ed criminal offence,

(b) the taking of action against the person for a specifi ed disciplinary offence,

(c) the taking of action against the person as a public offi cial on specifi ed grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public offi cial.

Persons connected with the subject matter of this inquiry who fall within the description of “affected” persons within the meaning of section 74A(3) of the ICAC Act are Dr Paul Ryder, Dr Robert Rugimbana, Dr Rachid Zeffane, Professor David Lamond, Professor Roger Holmes, Professor Brian English, and Professor Bernard Carey.

The Commission formally states that it is not of the opinion, in all the circumstances, that consideration should be given to the prosecution of Dr Paul Ryder, Dr Robert Rugimbana, Dr Rachid Zeffane, Professor David Lamond, Professor Roger Holmes, Professor Brian English, or Professor Bernard Carey for any specifi ed criminal offence. In particular, as regards the conduct of Drs Ryder and Rugimbana, the Commission is of the view that evidential matters (including the circumstance that Drs Ryder and Rugimbana both gave evidence under objection pursuant to the provisions of section 37 of the ICAC Act) would effectively prevent a successful

prosecution of these persons for the offence of misconduct in public offi ce, a common law offence in New South Wales.

Dr Ryder, Dr Rugimbana, Dr Zeffane and Professor Holmes are no longer in the employment of the University of Newcastle and therefore it is not necessary for the Commission to express an opinion as to whether consideration should be given to the taking of action against any of them as a public offi cial for a specifi ed disciplinary offence or with a view to terminating any of their services.

The Commission is of the opinion that, pursuant to section 74A(2)(b) of the ICAC Act, consideration should be given by the Vice-Chancellor of the University to the taking of disciplinary action against Professor English, with respect to his conduct in relation to matters the subject of this investigation.

Such action could be taken for offences pursuant to the provisions of the University of Newcastle Academic Employees Enterprise Agreement 2000, in particular pursuant to the provisions related to “misconduct” and/or “unsatisfactory performance” in accordance with the terms of clauses 38 and/or 39, Part V Termination, Discipline and Conduct. The Commission is of the opinion that Professor English’s conduct does not warrant consideration under section 74A(2)(c) of the ICAC Act (which includes dismissal action). The Commission states this opinion in light of and upon the basis of its determination that Professor English’s conduct does not amount to or constitute corrupt conduct within the meaning of the Act.

The Commission formally states that it is not of the opinion that consideration should be given to the taking of action against Professor Carey as a public offi cial for a specifi ed disciplinary offence or with a view to terminating his services.



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The Commission’s role

An important outcome of Commission investigations is the identifi cation of areas where further preventative measures and strategies could assist in reducing opportunities for the type of misconduct or corrupt conduct that has been exposed by the investigation.

Under section 13(1) of the ICAC Act, the Commission has the following general principal functions:

...

(d) to examine the laws governing, and the practices and procedures of, public authorities and public offi cials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct,

(e) to instruct, advise and assist any public authority, public offi cial or other person (on the request of the authority, offi cial or person) on ways in which corrupt conduct may be eliminated,

(f) to advise public authorities or public offi cials of changes in practices or procedures compatible with the effective exercise of their functions which the Commission thinks necessary to reduce the likelihood of the occurrence of corrupt conduct…

Also under section 13, the Commission has a particular corruption prevention function in respect of investigations:

(2) The Commission is to conduct its investigations with a view to determining:

…

(b) whether any laws governing any public authority or public offi cial need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and

(c) whether any methods of work, practices or procedures of any public authority or public offi cial did or could allow, encourage or cause the occurrence of corrupt conduct.

In view of these functions, the purpose of this chapter is to discuss the prevention issues relevant to the conduct and issues subject of this investigation.

The conduct revealed by this investigation was suffi ciently serious to warrant making recommendations about action that the University could take to minimise opportunities for the type of conduct revealed in this investigation. The University has begun a comprehensive program of work to address some of the issues that arose in this investigation and those initiatives are reported in this chapter. The recommendations made here are intended to support and complement the initiatives already commenced by the University and could be incorporated into the existing Management Action Plan.

Prevention principles

The causes of misconduct and corruption are complex and varied and the actions of individuals are not always attributable to systemic or procedural weaknesses. In this investigation, for example, a number of the University’s offi cers were found to have wilfully acted in breach of their duties.60 All public institutions have public interest obligations to take whatever steps they can to prevent misconduct and corruption. This chapter analyses the context in which the investigated events occurred and recommends action that the University can take to minimise the risk of similar conduct occurring again.

In any particular instance misconduct and corruption usually result from an interplay of both the motivation of individuals and the opportunities afforded by the environment they are in. Organisations that are concerned to minimise misconduct typically implement measures to address both of these elements by:

n guiding the behaviour of the individuals that make up an organisation,

n ensuring that administrative processes do not create opportunities or incentives for corruption, and

n establishing methods for detecting inappropriate conduct when it occurs.

This chapter considers how some of the University’s administrative systems and practices might be enhanced in an effort to prevent events of this kind happening again. The following topics are covered in this chapter:

n the absence of policies governing re-marking and moderation of marks

n the need to encourage policy compliance

Chapter 7: Corruption prevention issues

60 See fi ndings in Chapter 3 and Chapter 6.

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n effective record keeping

n identifying and managing conflicts of interest

n complaints management and investigation

n managing emerging risks in the university context.

Prevention issues

Assessment policies

At the time of the events investigated, the University of Newcastle did not have policies and procedures governing the use of re-marking and moderation of marks in the assessment and grading of essays. The University had a policy document entitled Assessing for Learning – Underlying Principles, dated 1 February 200161 which might be a suitable place to fi nd an explanation of these terms but the policy does not elaborate the differences in meaning between the terms “moderate” and “re-mark” or the circumstances in which they should be used.

When Dr Rugimbana was asked by the Commission whether there was a University policy that elaborated the meaning of these terms he replied that he was not aware of one. The University responded to the Commission’s query that, in the Graduate School, there was no policy or procedure but there was a “practice”:

At WIRA where the local lecturer marks all of the assignments (except for the exam), a sample of assignments are sent back to the UoN to ensure that the marking standard of the WIRA local lecturers is in line with NGSB [the Graduate School] standards. This is the process that is commonly referred to as “moderation” and it helps to ensure QA. If we fi nd that there has been a problem with the marks assigned by the local lecturers, all assignmentsall assignments will be re-marked by our staff.62 [emphasis added].

While the absence of defi nitive policies or procedures governing these processes cannot be said to have directly caused the misconduct that occurred in this situation, clearer procedures may have made it more diffi cult for Dr Ryder and Dr Rugimbana to attempt to legitimise the re-mark by calling it moderation.

The University confi rmed to the Commission that the following policies also refer to the assessment of student work:

n Rules for Administration of Assessment Items (approved 17 December 2004);

n Rules Governing Schools and Use of the Title “Dean”, section 9 “Functions of Assessment Committee” (approved 30 June 2003);

n Course Coordinator Role (approved 14 August 2002 and amended 13 October 2004); and

n Policy on Course Outlines (approved 13 October 2004).

These documents articulate clearly the roles of various offi cers in relation to the assessment of student work. Particularly relevant to the issues that arose in this investigation is the checklist in the Course Coordinator Role document which requires each course to have a “protocol for assessment moderation to be approved by HOS” (Head of School) and a “marker’s meeting … to ensure consistency across markers and/or implementation of moderation protocol”.63 However, none of these policy documents explains the meaning of the terms “re-mark” or “moderation” of marks or the circumstances in which these processes would be applied.

Recommendation 1 – assessment policy

That the University of Newcastle reviews any current policies, procedures and practices, applicable to assessment and grading of student work throughout the University, that provide for re-marking and moderation of marks. The review should ensure that these policies, procedures and practices:

n defi ne any circumstances in which items of assessment may be re-marked or the marks assigned to them moderated and the procedures to be followed in doing so;

n interact effectively with policies and procedures for managing plagiarism;

61 http://www.newcastle.edu.au/policy/academic/adm_prog/assessment_principles.html 62 Email from Sally Gordon, Executive Offi cer, Deputy Vice-Chancellor’s Offi ce, dated 10 March 2004.63 Course Coordinator Role, 14 August 2002, amended 13 October 2004, www..newcastle.edu.au/policy.academic/general/course_coord_

checklist.html accessed on 27 April 2005.



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n are easy for staff to access and comply with;

n are understood by academic staff with administrative responsibilities in faculties and schools; and

n are standardised across the University as far as is practical.

Policy compliance and administration

The fi ndings of this investigation are clear that the conduct of the offi cers involved could not be justifi ed or defended by ambiguity or confusion in respect of the relevant policies and procedures. Nevertheless, an important element of an effective governance system is that policies and procedures are clear, concise and unambiguous in stating their intent and meaning. In 2003, the University of Newcastle engaged St James Ethics Centre to review the adequacy and appropriateness of the University’s plagiarism policies, procedures and practices and, through a Management Action Plan, is currently implementing initiatives in response to the recommendations of the St James Ethics Centre report.

The University’s Management Action Plan commits the University to using the report’s recommendations to “take the opportunity to be a best practice leader in the management of plagiarism”.64 The Plan includes initiatives to address the following nine issues:

1. the need for an ethical framework for the development of the University’s plagiarism policy and its implementation

2. differences of opinion over the defi nition of plagiarism

3. lack of consistency in plagiarism policies

4. processes for initial investigation

5. appropriate decision and appeal processes

6. staff education about plagiarism

7. student education about plagiarism

8. continual ethical engagement

9. community engagement and education.

The University informed the Commission that, as at February 2005, the following actions had been taken in response to the St James Ethics Centre report:

n the recommended academic values have been incorporated into various polices and planning instruments;

n a single and clear defi nition of plagiarism has been adopted and incorporated into policy;

n policy and procedures for dealing with student academic misconduct have been developed;

n every School has an Student Academic Conduct Offi cer (SACO);

n plagiarism detection software (“Turnitin”) is in general use throughout the University;

n support mechanisms to assist students with literacy skills have been established including a self-paced interactive module;

n training modules on Academic Integrity have been developed and integrated into staff development programs;

n a central register for reporting academic misconduct (Student Academic Misconduct Register) is operating;

n the University is a member of the Center for Academic Integrity;

n advice has been received from Senior Counsel and a decision made on privacy legislation and University practice; and

n St James Ethics Centre has been invited to audit the progress of the University.

Consequently it is not necessary for the Commission to revisit issues affecting plagiarism policy and procedure specifi cally in this report. However, the Commission recommends that the University take further action to address two specifi c issues related to policy compliance.

Ensuring compliance

Perhaps the most concerning fi nding in this investigation was the blatant failure by senior University offi cials to follow University policies and procedures. Furthermore, there appeared to be little concern that such non-compliance had occurred and no recognition of the potential negative impact on the reputation and integrity of the University.

By failing to implement the plagiarism policy and apply it consistently, failing to adequately document decisions made, and failing to give students “early notifi cation and fair warning” about the suspicion of plagiarism the

64 St James Ethics Centre Report – Management Response, Document C04:02 13 February 2004, p.1.

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relevant staff acted in breach of obligations imposed by the Plagiarism Policy65, the Code of Practice for Teaching and Learning,66 the Code of Conduct,67 and the statement on Assessing for Learning – Underlying Principles68 (see fi ndings in Chapter 3). The question of whether plagiarism had occurred was not decided on its merits, and the decision to depart from the policy in dealing with the matter was neither appropriate nor even made with proper accountability. The result was that the students in the Organisational Effectiveness course were not all treated in a consistent manner.

It has been recently reported that:

the reluctance on the part of academic staff to engage with such procedures appears to be the downfall of many policies more so than the content of the policies and procedures themselves.69

This was most certainly the case in this investigation and Professor Carey gave evidence to the Commission that the policy was not regarded as mandatory but was “used as a guide by the academics”.

Non-compliance with policies may occur when members of an organisation are not convinced of their value or effectiveness. The factors that help to convince the members of an organisation that a policy has value and should be complied with include that it “embodies values that are important to their activities as members of the organisation” and that it is supported by the organisation’s leaders.70

The academic values that underpin the University’s policies are emphasised in the Management Action Plan, which is the University’s management response to the report of the St James Ethics Centre inquiry. Since the events that were the subject of this investigation, the University has taken steps to promote the values inherent in the concept of academic integrity among staff and students. The University website has a new section entitled “Valuing Integrity”. It also contains the following re-statement of the University’s values:

The values of the University of Newcastle are the fi ve values that form the basis of Academic Integrity, namely:

n honesty

n fairness

n trust

n responsibility

n respect.71

The introduction of Student Academic Conduct Offi cers is a particular model of raising awareness of the importance of academic integrity throughout the University in an effi cient and professional manner. It also reduces the opportunities for students to “negotiate privately with staff members”72

in a way that could lead to misconduct or corruption. The SACO role is enshrined in the University’s Policy on Student Academic Integrity (which was approved in June 2004 and supersedes the October 2002 Policy for the Prevention and Detection of Plagiarism) which provides that:

(iii) Student Academic Conduct Offi cers (SACOs) are appointed by each Head of School to:

n provide advice to students and staff on matters of student academic dishonesty within the School;

n ensure that School staff are provided with appropriate training and induction on student academic integrity;

n consider, in accord with the procedures set down in the accompanying Procedures for Dealing with Student Academic Dishonesty, reported instances of academic dishonesty within the School, make determinations and apply penalties, within the range of penalties available to the Student Academic Conduct Offi cer;

n if a penalty is imposed, record the student’s name, offence and penalty on the central Student Academic Misconduct Register and inform the student;

n refer more serious cases of academic dishonesty to the Head of School;

65 University of Newcastle, 2002, Policy for the Prevention and Detection of Plagiarism, approved October 2002, paragraph 5.0, “Responsibilities of staff”.66 University of Newcastle, 2002, Code of Practice for Teaching and Learning, updated 2002, paragraph 6.0 (now replaced)www..newcastle.edu.au/

services/hrm/policy/code_of_practice.html accessed 10/5/04.67 University of Newcastle 2002, Code of Conduct, approved October 1997, amended by Vice-Chancellor October 2002, paragraph 8(c).68 Dated 1 February 2001 www.newcastle.edu.au/policy/academic/adm_prog/assessment_principles.htm accessed 01/09/200469 Taylor, L; Ellen, N; de Lambert, K, “Academic Dishonesty: Realities for New Zealand Tertiary Education Staff and New Zealand Tertiary Education

Institutions” p. 11 www.tefma.com, accessed on 30/3/05 - a study of attitudes to dishonesty in the New Zealand tertiary education sector.70 Brien, A, 2002, “Regulating Virtue: formulating, engendering and enforcing corporate ethical codes” in Larmour, P and Wolanin, N (eds)

Corruption and Anti-Corruption, Asia Pacifi c Press, Canberra pp. 62-81, at 63.71 www..newcastle.edu.au/services/academic-integrity/accessed on 20/2/05.72 Taylor et al, 2002, op. cit., p 12.



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n take responsibility for managing, at School level, any plagiarism detection system adopted by the University and monitor the extent and nature of students’ plagiarism within the School;

n provide annual reports to the Head of School on the cases of student academic dishonesty arising in the School and the action taken or penalties imposed;

n provide advice to the Head of School on how to reduce the occurrence of academic dishonesty within the School.73

However, while acknowledging the clear benefi ts of introducing Student Academic Conduct Offi cers, there are two aspects of the initiative that should be considered in its implementation. The fi rst is that, although the SACOs are also described as having a role in staff training and induction more generally, the focus of the policy, and therefore their role, is “academic dishonesty”. The policy does not defi ne “academic integrity” and interprets “academic dishonesty” as two categories of conduct: plagiarism and academic fraud.

The policy expressly replaces the University’s former Policy for the Prevention and Detection of Plagiarism and it clearly has a role in establishing policy and procedure to address plagiarism. The concept of academic fraud has also been added to the new policy and is explained by the following examples:

n falsifi cation of data;

n using a substitute to undertake, in full or part, an examination or other assessment item;

n reusing one’s own work that has been submitted previously and counted towards another course (without permission);

n making contact with another person, contrary to instructions, during an examination or other assessment item;

n bringing material or device(s) into an examination or other assessment item other than such as may be specifi ed for that assessment item;

n making use of computer software or other material and device(s) during an examination or other assessment item other than such as may be specifi ed for that assessment item.

However, both the title of the policy and the title of the SACOs suggest that the policy deals with a wider range of student academic misconduct than plagiarism. Despite this, the policy does not address other types of conduct that may also be regarded as academic dishonesty such as improperly infl uencing a member of staff to obtain a higher grade or presenting false qualifi cations for acceptance into an academic program. It may assist the successful implementation of policy if the scope of the work of the Student Academic Conduct Offi cers is made more explicit. Ideally it would capture all types of student misconduct, not only those that were addressed previously by the Plagiarism Policy.

A second point to make about the Student Academic Conduct Offi cers is that it is critical that all staff should be able to recognise and, at least initially, deal with a case of student plagiarism or other misconduct. There are clear advantages in having skilled specialists to lead other staff or have dedicated capacity to managing these issues. The risk in this approach is that the knowledge and awareness of misconduct will be effectively quarantined to a specialised group of individuals when it is equally important that every member of academic staff is equipped to recognise and respond appropriately to misconduct if it arises.

Management’s demonstrated support of policies is another factor that encourages compliance with institutional policies and values. Senior and middle managers can infl uence the behaviour of subordinate staff by being seen to take institutional standards seriously – by their own compliance and enforcing the standards in relation to others.74 This refl ects the unique role of an organisation’s leaders in preventing misconduct and corruption.

Only senior managers can devise and promulgate the organisational policies and procedures that set institutional standards and in doing so it is fundamental that the University ensures that there is no room for doubt that policies and procedures are mandatory.

By the same token, only senior managers can take action when those standards are not maintained. Heads of programs, schools and faculties can effectively communicate the need to comply with institutional policies by setting the example in promoting and implementing policies and procedures.

73 University of Newcastle, 2004, Policy on Student Academic Integrity, approved 16 June 2004 www.newcastle.edu.au/policy/academic/general/academic_integrity_policy_new.html

74 ICAC 1999, Tips from the Top: Senior NSW Public Sector Managers Discuss the Challenges of Preventing Corruption, pp. 10-11.

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Recommendation 2 – policy compliance

That the University of Newcastle takes action to encourage staff awareness of, and compliance with, the University’s values and policies. In particular that:

n in developing the roles of Student Academic Conduct Offi cers, the University considers the need for their role to concern all forms of student misconduct, and also considers the need for all academics to maintain knowledge and awareness of the standards and processes governing student conduct; and

n introduces a systematic method for reinforcing, among academic staff, the importance of compliance with institutional policy and procedure for example by:n including unambiguous statements

in the University’s policy and procedure documents about how they should be complied with - those that are mandatory should be communicated as such together with details of any exceptional circumstances in which departures from the policy might be acceptable and the procedures for doing so, including who has the authority to approve a departure from policy;

n conducting induction programs for new members of staff that promote awareness of policies and procedures;

n providing regular information about changes to policy and procedure as they occur;

n introducing a method for reviewing and evaluating policies and procedures in order to maintain their effectiveness.

Responsibility of senior university staff

In a university, the organisation’s leaders are a unique cohort of academics who are also administrators. All individuals employed by the University have professional responsibilities that arise from the nature of their work. Academic staff have responsibilities related

to teaching and assessing the work of students and conducting research. Administrative staff are responsible for ensuring the effi cient operation of a university as an organisation, according to accepted management standards and institutional policies and procedures.

Understanding what constitutes proper and principled administrative behaviour in a given context involves knowing the ethical obligations of a particular role. Both academic and administrative roles have an ethical dimension that ensures that their work is performed responsibly and with integrity. For example, academic offi cers are obliged to perform their work in a manner that refl ects their freedom from the undue infl uence of anyone who might want to affect the outcome of their teaching or research. Equally, administrators have ethical obligations to further the objectives of the organisation in a way that prioritises the interests of the organisation and its stakeholders. Both sets of ethical obligations can be upheld by adherence to certain standards of behaviour and performance, and are characterised by the responsible exercise of those roles.

For a university’s senior managers the ethical dimension of their work requires not only academic integrity but also “administrative integrity” which concerns matters of responsible administration such as record keeping, observing proper process and avoiding confl icts of interest. Their responsibilities in this respect arise from their roles in the administration of their schools, faculties or the university as a whole and are not greatly different from the organisational responsibilities of any other public sector manager.

The University of Newcastle currently provides access to management training as part of its staff development programs for senior staff. Programs of this kind are a useful vehicle for organisations to ensure that their senior staff are equipped to perform both their administrative duties and their infl uential roles in promoting ethical management standards.

Recommendation 3 – administrative capacity

That the University of Newcastle develops a means of ensuring that academic staff appointed to administrative positions such as program director, head of school and head of faculty, have adequate management skills and an understanding of standard management practices and institutional standards that are necessary to fulfi l their responsibilities. Possible mechanisms



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include requiring experience or training in management skills as a prerequisite for appointment to administrative positions or providing management skills training as part of the professional development of potential administrators that would include:

n the ethical dimension of their administrative work;

n standard management practices including ensuring compliance with University policies and practices, record-keeping and dealing appropriately with complaints and confl icts of interest; and

n corruption risk management.

The issues relating to record-keeping, confl icts of interest, complaint management and corruption risk management are discussed in the following sections.

Record-keeping

The absence of contemporaneous documentation of decisions surrounding the decision to re-mark the papers (see Chapter 3) and the appointment of Professor Lamond (see Chapter 4) has already been noted. Indeed, the failure to record decisions and other critical information was a feature of the response to Mr Firns’s allegations within the Graduate School.

Keeping records of signifi cant events and decisions does not have to be onerous or time-consuming. It is, rather, an aspect of sound management that clearly was not standard practice for those members of the University’s senior staff involved in this matter. This investigation exposed the signifi cant failure of senior, responsible administrators of the University to recognise fundamental principles of transparency and accountability and the need to act, and be seen to act, in a way that would stand up to scrutiny at a later time. Key decisions that represented departures from usual procedure or were controversial and could reasonably be expected to be challenged were not recorded or explained.

Maintaining records of actions taken or decisions made by a person in authority is a fundamental aspect of “proper process” and good corporate governance. Public offi cials in NSW are obliged by law to “make and keep full and accurate records” of their activities.75 Even

without a statutory obligation to do so, keeping records of organisational decisions and actions is standard administrative practice and an essential element of good governance.

The NSW Ombudsman advises that good record-keeping “assists in improving accountability and provides for transparent decision-making”. Good record-keeping:

n enables the agency and its staff to meet legislative and regulatory requirements

n protects the interests of the agency and the rights of staff and members of the public

n supports better performance of business activities throughout the agency by documenting organisational activities, development and achievements and facilitating consistency, continuity and productivity in management and administration

n provides protection and support in litigation, including the better management of risks associated with the existence or lack of evidence of agency activity, and

n supports research and development activities.76

Some judgment is required of decision makers in deciding which of their activities should be recorded or the obligation would become impractical.

To assist NSW public offi cials, State Records NSW publishes guidelines that indicate that several of the actions taken by University staff in response to Mr Firns’s allegations should have been recorded. These include meetings, such as the meeting which decided to appoint Professor Lamond, which should have been minuted with a clear record of decisions taken, the basis for the decisions, who was present and any dissent. Similarly, decisions should be recorded with reasons.

In relation to conversations, State Records NSW advises that a record should be made of conversations, whether by telephone or in person, if they are used to conduct “signifi cant business” which is said to include:

n providing advice, instructions or recommendations

n giving permissions and consent, and

n making decisions, commitments or agreements.77

75 State Records Act 1998 section 12(1). Except for Part 3, the State Records Act 1998 has applied to universities since 2000.76 NSW Ombudsman 2003, Good Conduct and Administrative Practice: Guidelines for State and Local Government, pp. A.27-A.28.77 State Records NSW 2003, Recordkeeping Reminders pamphlet, October 2003.

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Other matters that might be regarded as “signifi cant” are those that are reasonably likely to be required for future reference, for example as evidence in legal action, including disciplinary or misconduct proceedings or a similar situation. There were several examples in the events that were the subject of this investigation which fall into this category. For example, records should have been made of communications with complainants and the actions taken in response to them. In the university context, it is prudent that records are made of any dealings with students where there is the potential for dispute or disciplinary action.

This issue is addressed by Recommendation 3.

Confl icts of interest

Managing confl icts of interest effectively is another essential aspect of good governance in any organisation. It is important because the community expects institutions with responsibilities to the public interest to perform their work in an impartial and unbiased way. Confl icts of interest can be particularly damaging for organisations such as universities, that depend on a reputation for high academic standards to attract students, staff and funding.

The confl icts that arose in this matter (discussed in Chapter 4) were both individual and institutional. Professor Lamond’s associations with Dr Ryder and Professor Carey should have precluded him from undertaking an “independent” investigation of Mr Firns’s allegations. The situation was compounded by his closeness to the Graduate School in the form of sitting on appointment committees and discussing the development of new programs for the School. The University put itself in a position of confl ict by appointing Professor Lamond to the task. The choice of Professor Lamond to undertake an ostensibly independent investigation created a situation where the University might be seen to be taking advantage of his relationship with it and its staff to obtain a favourable report. The nature of the institutional confl ict was that, while the University had a public interest obligation in terms of the public interest to establish what had actually happened, it also had an institutional interest in achieving a result from the investigation that was not unfavourable to the University. In this sense the University had as much of a confl ict of interest as Professor Lamond did.

In its Managing Confl icts of Interest in the Public Sector: Guidelines, the Commission advises that:

Managing confl icts of interest properly brings a range of benefi ts for public sector organisations.

First and foremost, opportunities for corruption or improper conduct are reduced.

Second, effective policies and procedures for identifying, disclosing and managing confl icts of interest mean that unfounded accusations of bias can be dealt with more easily and effi ciently.

Third, the organisation can demonstrate its commitment to good governance by addressing an issue that is commonly associated with corruption and misconduct.78

Before confl icts of interest can be managed they must fi rst be recognised. The Commission has adopted a defi nition devised for the public sector by the Organisation for Economic Cooperation and Development (OECD):

A “confl ict of interest” involves a confl ict between the public duty and private interests of a public offi cial, in which the public offi cial has private ... interests which could improperly infl uence the performance of their offi cial duties and responsibilities.79

This defi nition was devised for the public sector but the concepts apply equally to any context where impartiality is required – such as the conduct of an independent investigation. The concept is based on the legal principle that individuals cannot judge themselves. Where confl icts of interest are concerned, appearance can be as important as actuality. Confl icts can be actual, perceived or potential. They may not all amount to corrupt, or even improper, conduct, however any of them can damage reputation and erode public confi dence. In all cases, confl icts of interest should be effectively and properly managed.

The subsequent steps taken by Professor English to manage the confl ict by involving a lawyer in the process was ineffective. His evidence was that Dr Thompson’s participation in the investigation was intended to ameliorate the confl ict, but it could not have had this effect because Dr Thompson had no role in assessing the evidence or formulating the fi ndings.

78 ICAC / Crime and Misconduct Commission 2004, Managing Confl icts of Interest in the Public Sector: Guidelines and Toolkit, p. 7.79 OECD 2003, Guidelines for Managing Confl icts of Interest in the Public Sector, OECD Paris, June 2003, para. 10.



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At the heart of the problem was a view that there was no confl ict because Professor Lamond believed he did not have a confl ict. Professor Lamond gave the following evidence in this regard:

Q: You’ve agreed that at the time of your acceptance of this brief to investigate you saw yourself as possibly being seen to be a friend of Professor Carey and Dr Ryder?

A: That’s right.

Q: Yet you say that didn’t necessarily have any bearing on the independence that you brought, in your own mind, to the report?


Q: How is it that you say that?

A: Because of my integrity.

This is a signifi cant point. Professor Lamond seemed to suggest that if he did not feel there was a confl ict there would be no confl ict. In other words, he was evaluating the situation subjectively – from his own experience. Rather, the purpose of the concept of confl icts of interest is to provide assurance to an observer that a decision will be made on its merits. As the Commission has emphasised, confl icts of interest must therefore be objectively determined:

The key test is whether an individual public offi cial could be infl uenced, or appear to be infl uenced, by a private interest in carrying out their public duty. This is an objective test – when applied it should focus on the offi cial role and the private relationships and interests of the person concerned, and whether a reasonable disinterested person would think these relationships and interests could conceivably confl ict or appear to confl ict with the person’s public role.80

Similarly, Professor Carey emphasised in his evidence to the Commission that he “knew” there was no lack of independence:

Q: But you see the question of independence and the perception of independence is one of the paramount considerations in appointing an investigator into a matter such as this, surely?

A: Well, that was a matter for others and in fact the appointment of the senior lawyer was meant to, in fact, ensure that there was independence.

Q: But we’re just talking about here in effect you’ve got a friend being put forward as the suggested appointee

for a task which involved making a judgment on your senior offi cer, didn’t you consider that there might just be a perception of a lack of independence, or did it not even occur to you?

A: I knew there not to be that and so I suppose I did take the view that people would take a sensible approach to it and not – not think that, because I knew that it was – not think that, because I knew that it was –a very honest and straightforward putting forward of a name. I didn’t put it forward for any other reason than that Lamond is an extremely competent person and I had in mind that this was something that would have to be done reasonably quickly. That is it wasn’t an inquiry that could drag on for months. Lamond was known to me to be one of the most effi cient people at doing reports that I knew and that was part of the reason I put his name forward.

Professor Carey, Dr Ryder and Professor Lamond did not recognise that they had personal or private interests in the appointment that could at least create a perception of a confl ict. In this kind of situation a relevant interest does not need to be fi nancial:

The term “private interests” includes not only the personal, professional or business interests that each of us has, but also the personal, professional or business interests of the individuals or groups we associate with. This might include relatives, friends or even rivals and enemies.81

Ensuring that members of staff understand the concept of confl icts of interest and how they can be properly managed is the fi rst step in managing situations that could otherwise encourage corrupt or improper conduct. The inability of so many senior academic administrators at the University of Newcastle to recognise the confl ict of interest in this situation suggests a need to raise awareness of this issue in the University.

The University of Newcastle has policy documents that address the management of confl icts of interest but they are concerned with the teaching, learning and research roles of members of staff rather than their administrative duties. The Code of Conduct includes a section on confl icts of interest that deals with confl icts that could arise in teaching, research and supervisory relationships. The University also has comprehensive policy and procedure documents that provide for the disclosure of interests and confl icts in a range of academic situations.82

80 ICAC/CMC 2004, Managing Confl icts of Interest in the Public Sector: Guidelines and Toolkit, p.12.81 ibid, p.8.82 University of Newcastle, 2001, Policy on Avoiding Confl icts of Interest, approved 6 September 2001

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What seemed to be missing in this matter was an ability on the part of the senior managers of the University to recognise a confl ict of interest or the circumstances of a potential confl ict, especially where it might be damaging to the organisation. The fact that no one thought to document the decisions about Professor Lamond’s appointment suggests that nobody recognised a confl ict of interest until objections to Lamond’s appointment were made to Professor English by members of the NTEU (National Tertiary Education Union) and the Graduate School staff.

The elements of administrative integrity discussed here – ensuring policy compliance, managing conflicts of interest, keeping adequate records and promoting professional values – apply to administrators at all levels of responsibility. It is in the interests of the institution and its objectives to ensure that all of its senior administrators in particular, are equipped to lead, academically and administratively, in an ethical manner.

The evidence in this investigation indicated that the University did not have any systematic method for ensuring that academics with administrative roles were aware of the range of obligations that attach to those roles. Dr Rugimbana told the Commission:

Q: At the time you took up your position as deputy head what, if any, induction were you given in terms of your duties as deputy head?

A: I wasn’t given an induction, per se, but I was given a duty statement with reference to what was expected of me.

Dr Ryder’s evidence was similar:

Q: Was there any program for you to induct you into the university?

A: As part of the reorganisation of the University, the restructuring of the University, the University was developing new policies and new approaches when I joined. There was a brief one-day induction for all heads of schools that I can recall but that was the extent of it.

This issue is addressed by Recommendation 3.

Complaints management and investigation

This investigation indicates that the University of Newcastle did not have an effective system for managing serious complaints and allegations. One problem, already discussed, was inadequate record-keeping. Other problems included:

n the dismissive treatment of the complainant, Mr Firns;

n the failure to investigate the central issue of plagiarism;

n the considerable delay in informing the students of the allegations;

n such poor management of the inquiry process that critical evidentiary material could have been lost when a senior manager directed the marker’s comments to be obscured with “white-out” correction fl uid; and

n appointment of an inappropriate person to independently investigate the issues.

The decision to establish an independent inquiry was a reasonable one in the circumstances. However, the inquiry was conducted without the formulation of guiding procedures or standards. Given that the inquiry involved issues of potential impropriety, appropriate procedures and the appointment of a suitably experienced person to conduct the inquiry were both essential.

Furthermore Professor English was given responsibility for responding to the allegations made by Mr Firns. Professor English also conducted some enquiries himself, for example, in respect of the confl icts of interest issues. However, Professor English is neither a dedicated complaint manager nor a trained investigator and has wide-ranging administrative responsibilities. He was obliged to add the tasks associated with these enquiries to his usual duties.

The effective management by public sector organisations of complaints and allegations of misconduct made to them is important for a number of reasons. One is that statutory obligations will apply in respect of certain allegations. In some situations the Protected Disclosures Act 1994 imposes obligations on public sector organisations to manage the complaint and respond to the complainant in particular ways. Section 11 of the ICAC Act also obliges the “principal offi cer” of an organisation to report certain allegations to the Commission.



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Apart from obligations of fairness to affected persons, there are also institutional benefi ts to be gained from proper complaints management. Complaints and allegations about misconduct can be a useful source of information about aspects of the organisation that need improving or correcting. Complainants often have information that no other person has and they are usually prepared to assist organisations to address the situation they are complaining about.

People will not report misconduct or corruption if they think that nothing will be done in response to their information or that they will suffer retribution as a result of doing so.83 In this case the delays in contacting the students and implementing the recommendations made in the Lamond Report gave Mr Firns, at least, the impression that no action was being taken in response to his reporting of plagiarism. Dr Ryder and Dr Rugimbana both admitted in evidence that they could have contacted Mr Firns for more information but consciously did not. In addition, Mr Firns was treated dismissively when he made enquiries with Professor Holmes as to what action the University was taking (see Chapter 5).

A centralised standard procedure for investigating complaints would assist the University in dealing with these issues. Without centralisation, it is diffi cult to ensure that complaints and complainants are treated impartially, thoroughly, and accountably. There are standard recognised techniques that can be included in institutional complaint management systems. In particular, the NSW Ombudsman has produced a Complaint Handling Toolkit as a useful resource for managing complaints in public organisations84 and other resources exist for conducting internal investigations that meet relevant standards.

Another issue highlighted by this investigation is the need to have appropriate positions to conduct and/or manage investigations. While it is important for senior managers to take responsibility for the management of critical organisational issues, it is equally important to recognise that managing numerous and diverse complaints and investigations in a thorough, transparent and accountable way needs professional skills and experience, and appropriate resources. In an organisation the size of the University of Newcastle, it would be appropriate to have a dedicated function to perform these duties.

Appointing a professional offi cer to a dedicated role managing complaints would confer several benefi ts. These include that allegations about the University or senior offi ce holders could be conducted at arm’s length, reducing the risk of actual or perceived partiality in investigations, professional expertise could be acquired and applied, and senior executives would not be taken away from their core tasks.

Many universities now have dedicated complaints management or internal investigation functions for this purpose. Some use their internal audit function to pursue investigations of this kind and to take carriage of complaints that cannot or, for probity reasons, should not be managed at the school or faculty levels. Suitable models already exist in some universities in New South Wales; for example, the University of Sydney and the University of Technology, Sydney have established systems. Like the internal audit function this role can, in the right circumstances, be outsourced or shared between organisations.

The University has advised the Commission that it is currently considering creating a new position to manage internal and external complaints.

Recommendation 4 – internal investigative capacity

That, in developing a new complaint management function, the University of Newcastle establishes a dedicated administrative function to manage and respond to both internal and external complaints which reports to the Vice-Chancellor and employs staff who are professionally trained in receiving and investigating complaints.

Managing emerging risks

Identifying risk in the university context

Risk assessment and risk management are now common features of the governance of large organisations, including universities. Like other organisations, universities are exposed to complex and diverse risks of corruption, fraud and misconduct.

83 ICAC 1997, Monitoring the Impact of the NSW Protected Disclosures Act 1994, p. 39.84 NSW Ombudsman 2004, The Complaint Handler’s Toolkit.

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In organisational terms, risk is understood as “the chance of something happening that will have an impact upon objectives”. In undertaking risk assessments organisations endeavour to establish the “consequences and likelihood” of those events that could prevent the achievement of their objectives.85

In order to manage these risks, an organisation fi rst needs to understand its own objectives and priorities, or what it is trying to achieve and, therefore, what it is at risk of losing. Once identifi ed, relevant corruption risks can then be managed by reducing both opportunities for corruption to develop and the incentives for individuals to engage in corrupt conduct.

The distinctive objectives of universities are, of course, associated with the academic activities of teaching and learning. When the Commission asked universities to nominate the types of corruption they considered most damaging to them, they most often mentioned conduct that would result in lowering academic standards or damage to the reputation of the institution.86

In 2002 a survey of universities, reported by the Commission in Degrees of Risk: A corruption risk profi le of the New South Wales university sector, identifi ed “a number of factors associated with corruption risks in universities”. Several of those were strikingly evident in the events uncovered by this investigation, including:

n poor monitoring of the standard application of policies, procedures and processes, and a lack of accountability for adherence to policies and procedures;

n a continuing culture of keeping problems “in-house”, quiet, out of public scrutiny and hidden from its own employees;

n a reactive rather than a proactive approach to identifying and dealing with corruption risks;

n lack of awareness or identification of conflicts of interest;

n lack of attention to good record keeping and documentation, including recording and documenting decisions;

n a competitive environment that encourages universities to take risks that may not be recognised or well managed; and

n inadequate risk management for emerging technologies and their application.87

The events that were the subject of this investigation involved two important new areas of risk for universities as reported in Degrees of Risk.88 The fi rst is the use of new technology and its application. In this case it took the form of the extensive use, by students, of internet-based resources as research tools. The second involves risks associated with running full fee-paying programs in an increasingly competitive environment.

New technology

The risk that misconduct will occur as the result of, or facilitated by, new technology was relevant in the events which were the subject of this investigation in two ways. The fi rst was that the plagiarism detected by Mr Firns was perpetrated by extensive use of the internet. The second aspect of new technology that was relevant was that the University did not at the time of these events have plagiarism detection software widely available to its academic staff.

The University has told the Commission that in the course of implementing its Management Plan extensive implementation and training for staff and students in the use of the plagiarism detection software has occurred and the “Turnitin” computer program is now in general use throughout the University.

Full fee-paying students

The students involved in Mr Firns’s allegation were full fee-paying international students of the University enrolled in courses that were part of the Graduate School’s international strategy. The University of Newcastle is not alone in delivering off-shore programs and, in 2002, the Commission noted the trend among Australian universities to promote their programs internationally on a full fee-paying basis:

Over the last decade we can observe several major shifts in Australian higher education. Most notable among these has been an increasing reliance on non-government sources of income, especially through expanding involvement in the business of international education, increasing development of strategic relationships with commerce and

85 Standards Australia 2004, AS/NZS 4360:2004 Risk Management. 86 ICAC 2002, Degrees of Risk: A corruption risk profi le of the New South Wales university sector, p. 47.87 ibid, p. 50. 88 ibid, p. 50.



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industry, and a move to a user-pays system (with most students now making HECS contributions to the cost of their education). Since 1988 the Commonwealth Government has encouraged the tertiary sector to be more commercially oriented (Victorian Auditor General, 2002, p. 1).

The increasingly competitive higher education environment means that universities are being required to operate in a different manner than even a decade or so ago. They must balance the traditional benefi ts of collaboration and collegiality with an environment of increasing competition for domestic and overseas students, staff, research funds, industry support and status.89

As a result of these trends Australian education services, like those of several OECD countries, have become a traded commodity.90 The WIRA program is an example of the most common form of trade in educational services, described according to the trade classifi cations as “commercial presence” trade which “refers to the physical presence of the supplier [the university] in the ‘receiving’ country, and it is exemplifi ed by off-shore campuses, twinning or franchising arrangements, satellite campuses”.91

Education policy analysts have identifi ed risks to higher education associated with commercial trade in education:

Profi t is one of the most important incentives to provide HE [higher education] to students in a foreign country and in many cases quality and equity considerations tend to reduce profi t.92

A paper given at the University of Newcastle’s Symposium on Academic Integrity in November 2004 suggested that academic integrity may also be threatened by commercial considerations:

Where the university stops acting as a money producing corporate institution and starts to give priority to academic and intellectual values remains an area of unstable and moving boundaries. In such

a state, it is hardly surprising that sometimes people transgress a boundary that, to them, seemed not to be a boundary at all. 93

In the terms of the report of the Victorian Review of University Governance (the Hamilton Report) this amounts to an example of “moral risk”:

The risk that, while an institution may act within the law and may suffer no fi nancial loss, it is perceived to act below the standard expected of institutions of that type. Examples of moral risk are the risk of being perceived as being too motivated by commercial gain; as not suffi ciently responsive to the public interest; or as being preoccupied with its institutional interests and overlooking those of its students or the public.94

Managing a university’s “moral risk” need not be a signifi cant administrative burden. Instead it can be factored into the way the university goes about other governance activities. Education is an area where integrity is essential to quality. The risks that threaten quality frequently involve issues of integrity. For example, students who are assessed against reduced assessment criteria or entry requirements because they pay full fees cannot be assured that their qualifi cations are of an appropriate quality or standard. In articulating some of the risks associated with “for-profi t delivery of higher education” the OECD’s review of trade in higher education described this situation in terms of “ ‘degree mills’ offering low quality educational experiences and qualifi cations of limited value”.95

If persistent compromises in academic integrity are acknowledged to affect not only a university’s reputation but ultimately its educational effectiveness, managing “moral risk” should be a core element of a university’s risk management and quality assurance mechanisms along with fi nancial, legal and industrial risks.

89 ICAC 2002, Degrees of Risk: A corruption risk profi le of the New South Wales University Sector, p. 1590 OECD 2004, Internationalisation and Trade in Higher Education: Opportunities and Challenges, Paris.91 Lemaitre del Campo, MJ, 2004, “Is Quality Assurance Possible in a Global Context?” paper presented at the Proceedings of the Australian

Universities Quality Forum 11-13 June 2003 AUQA Occasional Publications Number 2, AUQA, Melbourne, p. 13.92 ibid, p. 18.93 Nillsen, R, 2004, “The Concept and Creation of Academic Integrity” p 7 presented at the Symposium on Academic Integrity, University of

Newcastle 24-24 November 2004.94 Hamilton, S, 2002, op.cit., p 58. 95 OECD 2004, op.cit., p 23.

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Risk management

The University of Newcastle has a range of corporate governance mechanisms that can be engaged to prevent the kind of misconduct reported here. These include institutional policies and procedures that are readily available to all staff through the University’s website. Several of these were relevant to the events investigated by the Commission and have already been mentioned in this report.

The University’s risk assessment and management program is implemented under the oversight of the University Council’s Audit Committee (which is to be renamed the Audit and Risk Management Committee). The current program was developed following a comprehensive risk management review undertaken in 2002. It addresses both strategic risks (“the University doing the wrong things in pursuit of its goals”) and operational risks (“the University doing the right things in the wrong way”).96

The University’s Audit Charter is reviewed every three years. The Commission has been told that the University’s internal audit function is currently under review to ensure it meets best practice standards and that its activities, role, and structure are being analysed to improve its capacity to respond to emerging risks.97

Also relevant to the management of risks is the University’s Fraud and Prevention Best Practice Guide. It identifi es both the assets that are threatened by fraud and corruption and some of the activities, related to those assets, that carry risks. The “moral risk” referred to earlier applies to the group classifi ed in this Guide under “4.1.4 Reputation”:

The items at risk from fraud within the University can be classifi ed into fi ve groups. Listed below are some examples that can be fraudulently used in each group:

4.1.1 Revenue: Grants, consulting fees, funding;

4.1.2 Information: Intellectual property, personal information, research information;

4.1.3 Expenditure: Capital projects, travel

expenditure, consultant and contractor fees, payroll;

4.1.4 Reputation: Examination results, objective decision making;

4.1.5 Assets: Time, plant and equipment, motor vehicles, supplies.98

Recommendation 5 – risk management

That in the course of its review of the internal audit function, the University of Newcastle:

n ensures that risks of fraud, corruption and misconduct are adequately addressed in its routine risk assessment and risk management plans and, if necessary, develops a separate corruption prevention strategy to address the risks identifi ed;

n adopts a method for identifying and monitoring the risk factors present in the delivery of offshore programs and the delivery of courses to full fee-paying students;

n expands the implementation plan for the recommendations of the St James Ethics Centre to include the issues raised in this report where this is appropriate. The training programs in academic ethics and plagiarism proposed in the University’s Management Action Plan could also include a discussion of the risks to academic integrity and educational quality posed by corruption and misconduct.99

96 University of Newcastle, 2004, Risk Management Policy, approved April 2004, para 1.3 www..newcastle.edu.au/policy/general/governance/risk_management.html accessed 9/3/05.

97 Paul Drinkwater, Director of Corporate Governance, University of Newcastle, personal communication, 9 March 2005.98 University of Newcastle, 1997, Fraud and Corruption Prevention Best Practice Guide, para. 4.0 www..newcastle.edu.au/policy/general/conduct_fraud_

guidelines.html accessed on 9/3/05. 99 Management Action Plan Items 6.1, 6.2, 6.3, 6.6.


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Appendix 1: University of Newcastle’s Plagiarism Policy (October 2002)100

Policy for the Prevention and Detection of PlagiarismMain Policy Document

1.0 INTRODUCTION

Plagiarism, cheating, and falsifi cation of data are dishonest practices which contravene academic values of respect for knowledge, scholarship and scholars. These practices devalue the quality of learning, both for the individual and for others enrolled in the course. The University imposes strict penalties on students who are found to contravene the University plagiarism policy.

Good scholarship necessarily requires building on and incorporating the work of others. This use must be appropriately acknowledged.

Whenever the thoughts, words, drawings, designs, statistical data, computer programs or other creative work of others are used, either by direct quotation, by paraphrasing or by the use of another’s ideas, the author and the source must be clearly identifi ed through the use of proper referencing. To avoid plagiarism, it is important to understand how to attribute the work and ideas you use to their proper source. This acknowledgement of the contributions of others is not solely a matter of honesty. It also shows the extent to which the student has consulted appropriate references and source materials during preparation of their work

2.0 PURPOSE OF THE POLICY

The purpose of this document is:

• To identify the responsibilities of the University and of individual staff and the rights and responsibilities of students with regard to the prevention and detection of plagiarism in coursework and research programs;

• to outline procedures that can be applied consistently across the University in the investigation of and subsequent action in cases of suspected / alleged plagiarism;

• to provide advice for academic staff on the prevention and detection of plagiarism; and

• to provide advice to students on the ways to avoid plagiarism.

3.0 DEFINITIONS

Plagiarism is the passing off of the thoughts or works of another as one’s own. Plagiarism involves giving the impression that a person has thought, written or produced something that has, in fact, been taken from another.

Intentional plagiarism is plagiarism which arises from intention to deceive.

Unintentional plagiarism is plagiarism which arises from lack of knowledge or understanding of the concept of plagiarism, or lack of skill in using the relevant academic conventions.

100 The October 2002 Policy for the Prevention and Detection of Plagiarism was replaced in June 2004 by a new Policy on Student Academic Integrity (www.newcastle.edu.au/policy/academic/general/academic_integrity_policy_new.html)


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Groupwork means a formally established project to be conducted by a number of students in common, resulting in a single piece of assessment or a number of associated pieces of assessment.

Legitimate collaboration means any constructive educational and intellectual practice that aims to facilitate optimal learning outcomes through interaction between students.

Collusion (unauthorised collaboration) involves working with others without permission to produce work which is then presented as work completed independently by the student. Collusion is a form of plagiarism. Students should not knowingly allow their work to be copied.

Pro Vice-Chancellor means the Pro Vice-Chancellor of the Faculty in which the plagiarism has occurred.

4.0 RESPONSIBILITIES OF THE UNIVERSITY

The University has an obligation to:

• set in place and publicise to all academic staff and students policies and procedures relating to plagiarism;

• inform all parties of their rights and responsibilities;• ensure that the policies and procedures are implemented consistently across all

faculties;• provide advice to students on how to avoid plagiarism;• provide advice to staff on how to minimise opportunities for plagiarism, and how

to detect instances of plagiarism;• provide students proper opportunity to answer allegations of plagiarism;• provide and publicise a process for students to appeal decisions arising from

plagiarism;• maintain a register of cases of plagiarism for which a penalty is imposed on a

confi dential Central Registry fi le, with limited access.

The Pro Vice-Chancellor and the Heads of School are responsible for the implementation of the policy in each Faculty.

5.0 RESPONSIBILITIES OF STAFF

Individual staff have a responsibility to:

• know the policies and procedures of the University with respect to academic honesty including plagiarism, co-operation and groupwork, and to apply them consistently;

• explain to students both good scholarly practice and the concept of plagiarism;• ensure that adequate information is provided to students about referencing

requirements and academic conventions for the use of others’ work, as appropriate for the discipline;

• inform students of obligations regarding acknowledgement of collaborative work, and give clear guidelines for groupwork;

• be aware of the needs of students who come from educational backgrounds where critical thinking is discouraged and where using the words of authorities is



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considered the best way to present information;• provide students with early notifi cation and fair warning if they believe any

individual or group may be at risk of breaching guidelines relating to plagiarism, groupwork, collusion and collaboration;

• give clear feedback about referencing problems;• refer students to sources of advice on academic writing;• ensure that allegations of student plagiarism are based on fi rm evidence.

6.0 RESPONSIBILITIES AND RIGHTS OF STUDENTS

Students have a responsibility to:

• read, understand and respect the policy on plagiarism;• familiarise themselves with the conventions of referencing for their discipline(s);• avoid all acts which could be considered plagiarism;• seek assistance from appropriate sources with any academic writing areas where

they are aware they need more knowledge and skills.

Students have a right to:

• be informed of the policies of the University with respect to academic honesty including plagiarism, co-operation and groupwork;

• be provided with clear guidelines on academic styles required in each course;• receive practical comments which assist them to review their work;• expect clear guidelines relating to all aspects of groupwork;• expect early notifi cation or fair warning in the case where an academic believes

a student or group of students may be at risk of breaching guidelines relating to plagiarism, collusion and collaboration;

• participate in appropriate learning experiences designed to improve their competency in writing and study skills, understanding of the requirements of groupwork, and development of personal attributes, in particular, ethical behaviour;

• expect a consistent interpretation of plagiarism and consistent application of procedures for dealing with suspected plagiarism across the University

7.0 PENALTIES

If it is determined that plagiarism has occurred, one or more of the following penalties may be imposed*:

(i) a warning given;

(ii) loss of all or part marks for the assessment item;

(iii) downgrading the fi nal grade in the course;

(iv) imposing a grade of fail in the course;

(v) the exclusion of the student from enrolment in a particular program and/or course(s) permanently or for such lesser period as the Discipline Committee may decide;

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(vi) the exclusion of the student from the University permanently or for such lesser period as the Discipline Committee may decide.

* Penalties (i) - (iii) may be imposed by the Head of School; penalties (i) - (iv) may be imposed by the Pro Vice-Chancellor; penalties (i) - (vi) may be imposed by the Discipline Committee.

When determining penalties:

• Each case will be treated on its merits.• The level of intent to deceive, the extent of the plagiarism and the student’s

history in regard to plagiarism will be the principal criteria for determining penalties.

8.0 STUDENT SUPPORT

The Dean of Students http://www.newcastle.edu.au/services/dean-of-students/index.html, and the Students’ Association http://www.newcastle.edu.au/association/nusa/griev.html are available to advise students alleged to have breached the policy on plagiarism.

9.0 APPEALS

A student who wishes to appeal against a decision of the Head of School or the Pro Vice-Chancellor may request that the Vice-Chancellor refer the case to the Student Discipline Committee.

A student who wishes to appeal a decision of the Student Discipline Committee should follow the appeal procedure outlined in the Student Discipline Rules. http://www.newcastle.edu.au/policy/legislat/discipline/student.htm

A student who has a complaint about the process of the investigation should follow the student grievance procedures. http://www.newcastle.edu.au/study/grievance/index.html



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Policy for the Prevention and Detection of Plagiarism

Procedure for Investigation and Subsequent Action for Allegations of Plagiarism

Possible Plagiarism?Suspicion that work submitted by a student is not

that student's work (either in part or in its entirety). 1.0

Check the Central Plagiarism File for previous cases of plagiarism by this student. 6.0

Decide on the appropriate penalty or refer the case to the Student Discipline Committee. 7.0

A student may appeal to the Council against a finding of misconduct by the Student

Discipline Committee. The appeal is heard by the Disciplinary

Appeals Committee. 9.0

Advice the student in writing of 5.0the allegation their rights the support available, and invite the student to respond to the allegation.

Provide clear feedback to the student onreferencing guidelines; sources of help for academic writing;Plagiarism Policy; and the overlap between poor referencing technique and plagiarism.

Student permitted to resubmit assignment? 3.0

Advice the student in writing of the outcome of the investigation and, if a penalty has been

imposed, their right of appeal.

If a penalty has been imposed, place a record of the investigation on the Central Plagiarism File. If no penalty has been

imposed place the record on the Central Record of Investigation File.

Head of School or Pro Vice-Chancellor? 4.0

Consider the case on its merits and with regard to

University Policy. Plagiarism has occurred?

N

Y

Student Discipline Committee 8.0

prima facie Plagiarism 2.0

Head of School

N

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Notes on the Procedure Flow Chart

1.0 CONSISTENCY

It is important that any allegation of plagiarism is dealt with according to the University’s Policy and Procedures. Junior and/or casual staff may be the ones who detect the offence. All staff therefore need to be aware of the policy and procedures. To facilitate consistency in the application of the procedures, where there is a Course Co-ordinator, the staff member should consult with, or refer the matter entirely to, the Course Co-ordinator, as appropriate. If the staff member is junior and/or casual and/or there are several markers across the course, then the matter should always be referred to the Course Co-ordinator.

2.0 PLAGIARISM?

The staff member who discovers the irregularity and/or the Course Co-ordinator must make a decision on whether the incidence is a case of plagiarism or of poor referencing skills. In making this decision, the following should be taken into account:

• The extent of the suspected plagiarism;• the experience of the student at University level (i.e. more leniency would be

shown in the case of a fi rst year student);• the apparent intention to deceive.

3.0 OPPORTUNITY TO RESUBMIT

The assessment task should be marked on its academic merit. If this results in a Fail grade because of poor referencing technique, the decision may be made to allow the student to resubmit the item, provided that this would not result in inequities for other students. The maximum mark available for a resubmit is a Pass mark of 50%.

4.0 INITIAL INVESTIGATION TO BE BY HEAD OF SCHOOL OR PRO VICE-CHANCELLOR?

The initial enquiry should be conducted by the Pro Vice-Chancellor if:

(i) The Head of School is the staff member who raised the suspicion of plagiarism; and/or

(ii) The Head of School considers that the extent of the prima facie plagiarism, and/or the level of study of the student, is serious enough to warrant initial investigation by the Pro Vice-Chancellor.

If the Head of School considers that the extent of the prima facie plagiarism is serious enough to warrant initial investigation by the Pro Vice-Chancellor, but the Pro Vice-Chancellor was the staff member who raised the suspicion of the plagiarism, then the initial investigation is conducted by the Deputy Executive Dean.


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5.0 THE INVESTIGATION

The Head of School or Pro Vice-Chancellor (the investigator) must, in writing, and as soon as possible:

(i) notify the student of the allegation, including a copy of the relevant sections of the written work with the alleged plagiarism identifi ed and a copy of any other evidence used to support the claim of plagiarism;

(ii) enclose a copy of this Policy;

(iii) draw the attention of the student to the student’s rights and to the help available;

(iv) give the student a reasonable period, being a period of not less than seven days, to seek advice about available options; and

(v) invite the student to respond to the allegation.

The investigator should determine the medium for the student’s response having regard for the student’s circumstances, for example, an on-campus student could be given the option to respond in person or in writing; an off-campus student could be given the opportunity to respond in writing, or if the circumstances warranted it, by telephone. In the case of distance students, to facilitate timeliness, email may be specifi ed as the medium, providing that the student has access to email.

The student may invite a support person to any meeting. The support person may provide the student with advice, but may not act as an advocate nor make direct comment to the meeting without the permission of the investigator.

6.0 PENALTIES

A Head of School may impose the following penalties:

1. a formal warning;

2. loss of all or part marks for the assessment item; or

3. downgrade the fi nal grade in a course, but not impose a fail.

A Pro Vice-Chancellor may impose the following penalties:

1. a formal warning;

2. loss of all or part marks for the assessment item;

3. downgrade the fi nal grade in a course, but not impose a fail; or

4. impose a grade of Fail in the course.

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7.0 CASE REFERRED TO STUDENT DISCIPLINE COMMITTEE

The case may be referred, through the Vice-Chancellor, to the Student Discipline Committee by the initial investigator or by the student on appeal from the decision of the Head of School or Pro Vice-Chancellor.

8.0 STUDENT DISCIPLINE COMMITTEE AND DISCIPLINARY APPEALS COMMITTEE

The rules for the conduct of the Student Discipline Committee and the Disciplinary Appeals Committee are found in the Student Discipline Rules: http://www.newcastle.edu.au/policy/legislat/discipline/student.htm

9.0 APPEALS

A student who wishes to appeal a decision of the Head of School or the Pro Vice-Chancellor may request that the Vice-Chancellor refer the case to the Student Discipline Committee.

A student who wishes to appeal a decision of the Student Discipline Committee should follow the appeal procedure outlined in the Student Discipline Rules. http://www.newcastle.edu.au/policy/legislat/discipline/student.htm

A student who has a complaint about the process of the investigation should follow the student grievance procedures. http://www.newcastle.edu.au/study/grievance/index.html

Record Keeping

At each stage of the investigation records should be gathered of all relevant documentation including:

• the assignment or other piece of work in which the alleged plagiarism occurs• records of meetings / phone conversations with the student• copies of correspondence, including emails, on the matter

The records of each case of plagiarism in which a penalty is imposed are kept on a central plagiarism fi le. The fi le has strictly limited access. The index to the fi le contains the name and student number of each student with a record on the fi le.

The Central File is not accessed during the investigation of suspected plagiarism. Once it is determined that a penalty should be imposed in a case of plagiarism, the Head of School, the Pro Vice-Chancellor or the Student Discipline Committee should consider previous cases of plagiarism for this student in which a penalty was imposed before deciding on the appropriate penalty. Access is only given to the Central Records of the student(s) involved in the case, not to other plagiarism records.

If, following an investigation of plagiarism, a penalty is not imposed, the record of the investigation is fi led on a Record of Investigation File. Access to this fi le is limited to the level of Deputy Vice-Chancellor and above. The fi le is only to be accessed in relation to the process of the investigation, not in regard to the record of the student.



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Timeliness

Investigations of plagiarism and advice to the student of the outcomes of the investigation must be dealt with in as timely a manner as possible. The response from the University at each stage should be within seven working days. Students required to respond to allegations of plagiarism should be given at least seven working days to respond to the allegations at each stage.


Information for Academic Staff

The plagiarism policy states that Individual staff have a responsibility to:

• know the policies and procedures of the University with respect to academic honesty including plagiarism, co-operation and groupwork, and to apply them consistently;

• explain to students both good scholarly practice and the concept of plagiarism;• ensure that adequate information is provided to students about referencing

requirements and academic conventions for the use of others’ work, as appropriate for the discipline;

• inform students of obligations regarding acknowledgement of collaborative work, and give clear guidelines for group work;

• be aware of the needs of students who come from educational backgrounds where critical thinking is discouraged and where using the words of authorities is considered the best way to present information;

• provide students with early notifi cation and fair warning if they believe any individual or group may be at risk of breaching guidelines relating to plagiarism, groupwork, collusion and collaboration;

• give clear feedback about referencing problems;• refer students to sources of advice on academic writing;• ensure that allegations of student plagiarism are based on fi rm evidence.

Practices to minimise opportunities for plagiarism

• draw students’ attention to the concept of Plagiarism and the policies relating to it in the orientation session for the course and on printed literature such as the course outline, assignment sheet etc;

• be available to give advice to students on the issue;• advise students of the referencing style guide they should use, including the

conventions of citing web-based material;• advise students of help that is available for referencing technique - eg through the

University’s learning skills unit, study skills website, booklet etc and encourage students to take advantage of these resources;

• include a student declaration that the work does not include plagiarism on the cover sheet of assignments and essays;

• set assignments that are suffi ciently unique that a web-published paper or a commercially available paper will not fulfi ll the requirements;

• weight assessment to give a heavier weight to assignments completed in class or under examination conditions.

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Resources for detecting plagiarism

The University’s Education Services - Library and Computing website provides links to information from many sources on how to avoid and detect plagiarism: http://www.newcastle.edu.au/services/library/training/libraryresearch.html#plagiarism

Some basic tools are:

• be aware of the primary and secondary references for the subject;• be aware of online sources of essays and papers;• use software designed to detect plagiarism;• look out for dramatic variation in style, vocabulary or expression;• look for inconsistencies in formatting that often occur when cutting and pasting

from different sources.


Avoiding Plagiarism: Information for Coursework Students

Introduction

A student plagiarises if he or she gives the impression that the ideas, words or work of another person are the ideas, words or work of the student.

Plagiarism includes:

• copying any material from books, journals study notes or tapes, the web, the work of other students, or any other source without indicating this by quotation marks or by indentation, italics or spacing and without acknowledging that source by footnote or citation;

• rephrasing ideas from books, journals, study notes or tapes, the web, the work of other students, or any other source without acknowledging the source of those ideas by footnotes or citations; or

• unauthorised collaboration with other students that goes beyond the discussion of general strategies or other general advice.

Plagiarism is not only related to written works, but also to material such as data, images, music, formulae, websites and computer programs.

Aiding another student to plagiarise is also a violation of the Plagiarism Policy and may invoke a penalty.

The plagiarism policy states that students have a responsibility to

• read, understand and respect the policy on plagiarism;

• familiarise themselves with the conventions of referencing for their discipline(s);

• avoid all acts which could be considered plagiarism;

• seek assistance from appropriate sources with any academic writing areas where they are aware they need more knowledge and skills.



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The following guidelines will help you to avoid plagiarism:

• be familiar with the style of acknowledgment that is recommended for use in each of your courses, including the referencing techniques required for information sourced from the internet;

• write the source on any notes or copies you make from any document or electronic sources such as the internet. The habit of copying verbatim from a source as you read is dangerous. It is easy to forget that the notes you make are verbatim and to later write them into an essay or report. Keep details of your sources throughout the course of your research. Unintentional plagiarism is often the result of poor study methods;

• sources that must be acknowledged include those containing the concepts, experiments or results from which you have extracted or developed your ideas, even if you put those ideas into your own words;

• always use quotation marks or some other acceptable form of acknowledgement when quoting directly from a work. It is not enough merely to acknowledge the source;

• avoid excessive paraphrasing, even where you acknowledge the source;

• be aware of the rules regarding groupwork and collaboration. Collaboration (appropriately acknowledged) is permitted in the case of team or group projects. It is also permitted in the more general case when the collaboration is limited to the discussion of general strategies or help of a general nature. If you have any doubt about what constitutes authorised and unauthorised collaboration, seek advice from your lecturer;

• the distinction between what needs to be acknowledged and what is common knowledge is not always clear. As you gain experience you will learn the acceptable practices for acknowledgment in the disciplines in which you study, but while you are learning, always play safe and acknowledge;

• keep a copy of your working papers to assist you in case you ever need to answer an allegation of plagiarism.

Referencing and Research Guidelines:

The University of Newcastle Library and Computing Online Tutorials – Referencing http://www.newcastle.edu.au/services/library/training/referencing.html contains information on:

• Offi cial Style manuals for 6 different styles of referencing;• Citation guidelines for internet sources for the different styles;• Tutorials on using the styles.

The University of Newcastle Library and Computing Online Tutorials - Information Research Skills http://www.newcastle.edu.au/services/library/training/libraryresearch.html contains information on:

• The Search Strategy• Evaluating Information• Essay and Report Writing• Plagiarism

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Advice on Use of Internet Sites

Cyberspace contains both useful information and traps for the unwary. Unfortunately, many websites do not name the author of the textual material included. This means that the text carries little authority. As with a book or journal article, we need to know “Who wrote this?” and “Where did they get that piece of information from?”

Questions to ask about any site on the WWW:

• Is the author named?• If so, does the site tell you about the author’s credential and experience?• Can you confi rm the information from books, journals or other websites?• Be aware that the website may be as biased as any source. Who owns/runs the

website and what are they promoting?• Has the website been updated recently? Is it out of date?

In general, research at University level is NOT based on encyclopaedias or internet websites. Research essays must be based on data that is the work of acknowledged authors, and on data with verifi able origins. The advantage of academic books and journals is that the material has been reviewed in manuscript form by experts in the fi eld before publication, and has been tested by review in academic journals after publication. Sometimes, however, information of a high quality is posted on websites before publication or instead of publication through regular channels. If in doubt, consult your lecturer before using a website.

Referencing the WWW

Information from the WWW should be cited just like any other source. Cite website author, title (if actually published as well, publication details should be cited), and the full URL of the website, and the date you visited the web page. For example:

Landrewy, F., ‘Paralympic Games and Social Integration’ (fi rst published in Miquel de Moragas and Miquel Botella, eds., The Keys to Success, Barcelona, UAB, 1996), http://blues.uab.es/olympic.studies, 14/1/97.



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INTRODUCTION

1. All members of staff of The University of Newcastle are expected to perform their duties with effi ciency, fairness, impartiality, integrity, honesty and compassion. This code aims to clarify for all staff the conduct expected in the performance of their duties and to provide them with a guide to solving ethical issues.

2. The successful development of an ethical environment relies upon individuals having responsibility for their own professional behaviour, taking into account:

• the provisions of this Code; • policies of the University; • expectations of the University community; and • advice of senior colleagues.

If there is any doubt as to the applicability of the Code, or the appropriate course of action to be adopted, the matter should be discussed with an appropriate senior member of staff.

3. A number of the obligations and standards set out in this Code are also to be found in legislation. Staff members need to be aware that, in some cases, breach of standards may involve criminal offences; in others they may amount to serious breaches of discipline and involve the possibility of dismissal.

4. Staff should be familiar with the responsibilities which are part of their employment, and be aware that sanctions will be applied if these provisions are breached. These sanctions may include counselling, suspension, dismissal, laying criminal charges or taking civil action.

REFERENCES

5. (1) A Code of Conduct is required by the Annual Reports (Statutory Bodies) Regulation 1985.

(2) The main legislation which is relevant to University staff includes:

• Anti-Discrimination Act 1977 (NSW) • Crimes Act 1900 (NSW) • Freedom of Information Act 1989 (NSW) • Independent Commission Against Corruption Act 1988 (NSW) • Occupational Health and Safety Act 19832000 (NSW) • Public Finance and Audit Act 1983 (NSW) • The University of Newcastle Act 1989 (NSW) • Privacy and Personal Information Act 1998 (NSW) • Sex Discrimination Act 1984 (Cwlth) • Racial Discrimination Act 1975 (Cwlth) • Privacy Committee Act 1975 • Ombudsman Act 1974 (NSW) • Protected Disclosures Act 1994 (NSW)

Appendix 2: University of Newcastle’s Code of Conduct101

101 The University’s Code of Conduct was approved in October 1997 and amended in October 2002.

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(3) Other references available include:

• Practical Guide to Corruption Prevention, Independent Commission Against Corruption;

• Good Conduct and Administrative Practice - Guidelines for Public Authorities and Offi cials, NSW Ombudsman, May 1996;

• A Policy on Prejudicial Relationships@, The University of Newcastle Staff Policy and Procedures Manual.

• “Internal Reporting Policy - Protected Disclosures Act 1994”, The University of Newcastle Staff Policy and Procedures Manual.

CONFLICTS OF INTEREST

6. (1) Staff should avoid any fi nancial or other interest or undertaking that could directly or indirectly compromise the performance of their duties. Confl icts of interest should be assessed in terms of the likelihood that staff members possessing a particular interest could be infl uenced, or might appear to be infl uenced, in the performance of their duties on a particular matter.

(2) The University will not routinely involve itself in the private lives of its staff

and students. However, a confl ict of interest might arise where a staff member engages in activities or advances personal interests at the expense of the University’s interests or the interests of other staff members or students.

(3) The following situations are provided as examples of where a potential for

confl ict of interest may easily occur. (a) Financial Interest - An example of a fi nancial confl ict of interest which

may arise is where a staff member who has a fi nancial interest in a company is in a position to infl uence contracts for business between that company and the University.

(b) Personal and Family Relationships between Staff Members (i) The University is aware that situations may occur where staff are

working with family members or with persons with whom they develop close personal relationships.

(ii) Where such relationships exist between staff the University does

not wish to interfere unnecessarily but stresses that they may have the potential to create a confl ict of interest if one staff member is:

• involved in a decision relating to the selection or

promotion of another; • in a supervisory relationship to another and is responsible

for employment related decisions.

(c) Personal and Family Relationships between Staff Members and Students (i) Academic staff have a responsibility to their students to

assess their work fairly, objectively and consistently across the candidature for their particular subject/course. A personal or



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family relationship between an academic staff member and a student has the potential to compromise this responsibility where the staff member is responsible for the supervision, teaching and/or any level of assessment of that student, or indirectly by affecting a student’s interaction with the University. (ii) In many cases, only the individual staff member will be aware

of the potential for confl ict. Staff members in that situation are required to notify the appropriate senior member of staff of the existence of an actual or potential confl ict of interest. A staff member who fails to declare such an interest may face disciplinary action as specifi ed in the University Staff Discipline Rules and the relevant staff award.

PERSONAL AND PROFESSIONAL BEHAVIOUR

7. Staff members should perform any duties associated with their positions diligently, impartially and conscientiously, to the best of their ability.

8. In the performance of their duties, staff should:

(a) strive to keep up to date with advances and changes in the body of knowledge and the professional and ethical standards relevant to their area of expertise;

(b) comply with any relevant legislative, industrial or administrative requirements;

(c) maintain adequate documentation to support any decisions made;

(d) treat members of the public, students and other staff members with courtesy

and sensitivity to their rights and provide all necessary and appropriate assistance;

(e) strive to obtain value for public money spent and avoid waste and extravagance

in the use of public resources;

(f) conform with the principles of environmental responsibility;

(g) not take or seek to take improper advantage of any offi cial information gained in the course of employment; and

(h) not allow personal political views/affi liations or other personal interests to

infl uence the performance of their duties or exercise of responsibilities.

9. When faced with a diffi culty in having to implement a policy which is at variance with the staff member’s own view, staff should discuss the matter with an appropriate senior staff member, depending on the nature of the matter, to resolve the issue.

10. Staff members will not harass or discriminate in work practices on the grounds of sex, marital status, pregnancy, age, race, colour, nationality, ethnic or national origin, physical or intellectual impairment, sexual preference, transgender status, religious or political conviction or HIV/AIDS status.

11. Supervisors will apply Employment and Equal Opportunity principles.

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12. Staff members have a duty to report to a senior staff member any behaviour by another staff member which is in breach of the legal requirements of the other staff member’s employment with the University.

13. Senior members of staff of the University are expected to act upon such reports in accordance with this Code and any legal and procedural requirements.

PUBLIC COMMENT

14. Public comment includes offi cial or other statements by way of public speaking engagements, comments on radio and television and expressions of views in letters to the newspapers or in books, journals or notices or where it might be expected that the publication or circulation of the comment will spread to the community at large.

15 Statements in the name of the University shall be authorised by any of the following:

(a) Chancellor

(b) Vice-Chancellor

(c) Deputy Vice-Chancellor

(d) President of Academic Senate

(e) Deputy Vice-Chancellor (Services)

(f) Deputy Vice-Chancellor (Research)

(g) Pro Vice-Chancellors

or any member of the University acting under the authority of one of those named offi cers.

16. Where the matter of a media statement or a letter relates directly to the academic or other specialised subject area of a staff member’s appointment, the member may use the University’s name and address and give the title of his or her University appointment in order to establish his or her credentials.

17. All staff members have the right to express their views publicly on any matter of public interest as private citizens. Statements made or letters written in this context should not include the name and address of the University (or any part of it) or the title of his or her University appointment.

USE OF OFFICIAL INFORMATION

18. All staff and students have a right to expect confi dentiality and privacy with respect to personal information obtained by other members of the University community in the course of their employment. All staff members have a duty to maintain confi dentiality, integrity and security of offi cial information for which they are responsible.



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USE OF OFFICIAL FACILITIES AND EQUIPMENT

19. University facilities and equipment should only be used for private purposes when offi cial permission has been given.

OUTSIDE EMPLOYMENT

20. All staff are permitted under certain conditions to engage in outside employment. Such matters are governed by the provisions of the Policy on Consulting.

OCCUPATIONAL HEALTH AND SAFETY

21. In addition to the University’s responsibility to provide a safe and healthy work place, staff also have a direct responsibility for their own health and safety while at work, and for the health and safety of staff and others within their immediate area of responsibility.

INTERNAL REPORTING SYSTEM AND PROTECTED DISCLOSURES ACT

22. (1) The Protected Disclosures Act 1994 offers protection for staff who make disclosures concerning corrupt conduct, maladministration or serious or substantial waste of public money.

The University’s Internal Reporting Policy for the Purposes of the Protected

Disclosures Act 1994 is found at: http://www.newcastle.edu.au/policy/general/information/protected_disclosures.htm

FURTHER INFORMATION

23. For further information or assistance please contact Director, Vice-Chancellor’s Division The Chancellery

Staff are encouraged to raise any matter in relation to conduct with their Supervisor, Pro Vice-Chancellor/Head of Division or any member of the University Executive.

[Approved by Council: 31 October 1997, Amended by Vice-Chancellor 4 October 2002]

103

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The Independent Commission Against Corruption Act 1988 (“the ICAC Act”) is concerned with the honest and impartial exercise of offi cial powers and functions in, and in connection with, the public sector of New South Wales, and the protection of information or material acquired in the course of performing offi cial functions. It provides mechanisms which are designed to expose and prevent the dishonest or partial exercise of such offi cial powers and functions and the misuse of information or material. In furtherance of the objectives of the ICAC Act, the Commission may investigate allegations or complaints of corrupt conduct, or conduct liable to encourage or cause the occurrence of corrupt conduct. It may then report on the investigation and, when appropriate, make recommendations as to any action which the Commission believes should be taken or considered.

The Commission can also investigate the conduct of persons who are not public offi cials but whose conduct adversely affects or could adversely affect, either directly or indirectly, the honest or impartial exercise of offi cial functions by any public offi cial, any group or body of public offi cials or any public authority. The Commission may make fi ndings of fact and form opinions based on those facts as to whether any particular person, even though not a public offi cial, has engaged in corrupt conduct.

The ICAC Act applies to public authorities and public offi cials as defi ned in section 3 of the Act.

The Commission was created in response to community and Parliamentary concerns about corruption which had been revealed in, inter alia, various parts of the public service, causing a consequent downturn in community confi dence in the integrity of that service. It is recognised that corruption in the public service not only undermines confi dence in the bureaucracy but also has a detrimental effect on the confi dence of the community in the processes of democratic government, at least at the level of government in which that corruption occurs. It is also recognised that corruption commonly indicates and promotes ineffi ciency, produces waste and could lead to loss of revenue.

The role of the Commission is to act as an agent for changing the situation which has been revealed. Its work involves identifying and bringing to attention conduct which is corrupt. Having done so, or better still in the course of so doing, the Commission can prompt the relevant public authority to recognise the need for reform or change, and then assist that public

Appendix 3: The Commission’s role

authority (and others with similar vulnerabilities) to bring about the necessary changes or reforms in procedures and systems, and, importantly, promote an ethical culture, an ethos of probity.

The principal functions of the Commission, as specifi ed in section 13 of the ICAC Act, include investigating any circumstances which in the Commission’s opinion imply that corrupt conduct, or conduct liable to allow or encourage corrupt conduct, or conduct connected with corrupt conduct, may have occurred, and co-operating with public authorities and public offi cials in reviewing practices and procedures to reduce the likelihood of the occurrence of corrupt conduct.

The Commission may form and express an opinion as to whether consideration should or should not be given to the prosecution or other action against any particular person or persons, be they public offi cials or not.


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The Commission does not sit as a criminal or civil court. It does not determine the rights of any person. Nevertheless, a fi nding of corrupt conduct against an individual is a serious matter. It may affect the individual’s reputation. It is appropriate to observe that the standard of proof to be applied by the Commission in making fi ndings of fact and fi ndings of corrupt conduct is the civil standard, proof on the balance of probabilities, being qualifi ed having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the tribunal, such satisfaction not being produced by inexact proofs, indefi nite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Rejfek v McElroy (1965) 112 CLR 517 at 521. Before an adverse fi nding of fact is made or a fi nding of corrupt conduct is reached, the Commission should be comfortably satisfi ed on the balance of probabilities that the fi nding should be made: Bannister v Walton (1993) 30 NSWLR 699 and 711-712.

The rationale for this approach was explained in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170, where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded):

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely refl ecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a fi nding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

In the Final Report of the Royal Commission into the Building and Construction Industry, Commissioner Cole QC observed:

I do not regard the concept of the onus of proof as applicable in the context of a Royal Commission. That is because, in leading evidence during hearings of the Commission, Counsel Assisting were not putting a case. They were participants in an investigation. If, in accordance with the approach I have just outlined, I was reasonably satisfi ed that certain events had occurred, then I found that they had occurred. If I did not reach that level of satisfaction, I did not make that fi nding. That was, however, as a result of the application of the relevant standard of proof. It was not because Counsel Assisting had failed to discharge any onus.102

Such an approach is equally applicable to an investigation and report of the Commission.

The Commission’s approach to fact-fi nding

In determining whether conduct falls within the provisions of section 8 of the ICAC Act the approach to be taken by the Commission was enunciated in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 wherein it was stated that the following process ought be followed:

n The Commission should precisely identify “the conduct” of the person or offi cial in question so as to determine whether it falls within the provisions of sections 8 and 9;

n Findings should be made as to the surrounding circumstances by which the conduct is to be categorised, that is, the contextual circumstances as distinct from fi ndings on the basic facts as to what parties did or did not do;

n Identifi cation of those elements which may indicate that an offi ce has been used or a power exercised improperly or for purposes “foreign” to the purpose for which the power exists.103

Accordingly the analysis and factual fi ndings made in this report are made having regard to this process and method of fact-fi nding.

Appendix 4: The relevant standard of proof

102 Royal Commission into the Building and Construction Industry, 2003, Final Report of the Royal Commission into the Building and Construction Industry, Vol.2, February 2003, p.49.

103 See discussion by Mahony JA in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 154.