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D E C E M B E R 2 0 0 3

Report on investigation into Mr Glen Oakley’s use of false academic qualifications

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 Mr Glen Oakley’s use of false academic qualifications

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This report and further information about the Independent Commission Against Corruption can be found on the Commission’s website 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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OFFICE HOURS 9.00am to 5.00pm, Monday to Friday


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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 use of false academic qualifications by Mr Glen Oakley. Mr Oakley used these qualifications to obtain employment in the public and private sectors.

I presided at the hearing which was conducted for the purpose of this investigation and my findings, opinions and recommendations are contained in this report.

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.

Yours sincerely

Irene Moss AO

Commissioner


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Contents

Executive summary 7

Chapter 1 — Introduction 8

What is this report about? 8

How the investigation originated 8

Why the Commission investigated 8

Conducting the investigation 8

The investigation outcomes 9

Section 78(2) recommendation 9

Chapter 2 — The facts 10

Background 10

Maritime Services Board 10

Ramsay Health Care 11

NSW Health 11

Department of Business and Regional Development 11

Australian Society of Certified Practising Accountants 12

Newcastle Ports Corporation 12

NIB Health Funds Limited 12

University of Newcastle 13

Transurban 13

Sydney Water Corporation 13

Randwick City Council 14

Creating false documents 14

Discovery 14

Findings of fact 16

Corrupt conduct findings 16

Section 74A(2) statement 17

Chapter 3 — Corruption prevention 19

Mr Oakley’s career 19

Verifying qualifications and experience - a snapshot of current public sector recruiting practices in New South Wales 20

Recommendations 23

Appendix 1 — The Commission’s role 24

Appendix 2 — Corrupt conduct defined and the relevant standard of proof 25


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Executive summary

This report deals with an investigation by the Independent Commission Against Corruption (the Commission) concerning the circumstances in which Mr Glen Oakley falsely represented himself as having certain academic qualifications. Mr Oakley made these representations when applying for a number of public and private sector positions of employment between 1987 and 2002. He also made them in connection with gaining certain honorary positions.

Findings are made in Chapter 2 of the report that Mr Oakley engaged in corrupt conduct by:

falsely representing himself as having tertiary academic qualifications for the purpose of applying for and gaining various positions of employment in the public sector and for the purpose of an appointment as Conjoint Professor to the Graduate School of Business, University of Newcastle;

creating and using false documents purporting to be academic degrees and

making false representations to a Justice of the Peace that the false documents created by him were genuine with the intention the Justice of the Peace would certify copies of the false documents as being true copies of original documents.

Recommendations are made in Chapter 2 of the report that consideration be given to the prosecution of Mr Oakley for criminal offences under sections 178BA, 178BB or 300 of the Crimes Act 1900 (NSW).

Chapter 3 of the report focuses on the implications of Mr Oakley’s conduct in terms of corruption prevention and concludes with four recommendations designed to prevent such conduct going undetected in the future.

Recommendations

1. Where job applicants assert professional and/or academic qualifications as part of their claim to a position, these qualifications should be verified prior to appointment.

a. The employer’s designated representative (which includes any recruitment consultants engaged by the employer) should sight original certificates or certified (by the institution) academic transcripts. The costs of producing this documentation is to be borne by the applicant;

b. To facilitate verification each applicant should be required to give written permission to the prospective employer’s designated representative for the relevant educational institution to be contacted for verification purposes;

c. Academic and professional qualifications of successful candidates should in all cases be verified with the issuing institution where they are required for a position or where they are a significant determinant in the decision to appoint an applicant;

d. In other cases academic and professional qualifications should be verified with the issuing institution on a random basis;

e. An auditable record of any verification should be kept and where the verification has been conducted by recruitment consultants, the consultants should be obliged under the terms of their engagement to provide the client employer with written evidence that they have undertaken the required checks.

2. All applicants should be informed through applicants’ information packages of the requirement for candidates to verify qualifications prior to appointment and that such claims may be verified with the issuing institution. All applicants should also be informed in clear terms that falsely claiming qualifications will lead to their dismissal and/or prosecution for any relevant offence.

3. All applicants should also be required to sign a certificate declaring that the qualifications they assert are genuine and that they acknowledge any falsely claimed qualifications can lead to their dismissal.

4. Letters of appointment or other contractual documentation should include a provision that permits an employer to terminate the employment of an applicant who falsely claims qualifications.


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Chapter 1 — Introduction

What is this report about?

This report examines the circumstances in which Mr Glen Norman McKinnon Oakley falsely represented himself as having certain academic qualifications. Mr Oakley made these representations when applying for a number of public and private sector positions of employment between 1987 and 2002. He also made them in connection with gaining certain honorary positions.

It is disturbing that Mr Oakley was able to make these false representations over a period of 15 years without detection. The report sets out recommendations to ensure that in future the authenticity of academic qualifications claimed by applicants for public employment is confirmed as part of the recruitment assessment process.

How the investigation originated

This matter first came to the Commission’s attention by way of a report from the Vice Chancellor of the University of Newcastle. The report was made pursuant to section 11 of the Independent Commission Against Corruption Act 1988 (ICAC Act). This section requires a principal officer of a public authority (the University is a public authority) to report to the Commission any matter that the officer suspects on reasonable grounds concerns or may concern corrupt conduct. It had come to the Vice Chancellor’s attention that Mr Oakley had been falsely claiming to hold a Bachelor of Science (Hons) degree and a Graduate Diploma in Education from the University. At that time, Mr Oakley held a Conjoint Professorial appointment at the University’s Graduate School of Business and an appointment as Chair of the University Foundation Board. He no longer holds these positions.

When the Commission received the report it conducted inquiries into the veracity of Mr Oakley’s other claimed academic qualifications. The Commission ascertained that in addition to falsely claiming the qualifications from the University of Newcastle he had also falsely claimed a Master of Business Administration degree from the University of New South Wales and a Doctor of Philosophy degree from the University of New England.

Why the Commission investigated

The role of the Commission is set out in Appendix 1. It is to investigate whether any person or organisation has engaged in corrupt conduct within the meaning of the ICAC Act. The creation and use of false academic qualifications for the purpose of obtaining employment in the NSW public sector constitutes corrupt conduct within the meaning of the ICAC Act and involves criminal offences. The relevant criminal offences are set out in Chapter 2.

I regarded it as an important issue of public interest to investigate Mr Oakley’s conduct with a view to ascertaining the extent of his conduct and how he had been able to successfully represent himself for so long as having the false academic qualifications. I also regarded it as important in the public interest to identify if any changes were needed to public sector practices to ensure the integrity of public sector recruitment processes. The public have a right to expect not only that those appointed to public sector positions are appropriately qualified but that they are honest. False representations as to academic qualifications, whether or not such qualifications are needed for the position, indicate a lack of integrity on the part of the applicant that should make that person unsuitable for public sector employment.

Conducting the investigation

The Commission’s first investigative step was to identify and obtain relevant documentary evidence. The documentation so obtained indicated that Mr Oakley had falsely represented himself as having academic qualifications in relation to a number of applications he had made for employment and honorary positions.

In order to determine the reasons why Mr Oakley had so acted I decided to take evidence from him.

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


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I decided to conduct the hearing in private to protect the integrity of the investigation and to enable me to determine if there was sufficient probative evidence to warrant further investigation.

Mr Greg Farmer acted as Commission counsel in the hearing.

In his evidence to the Commission Mr Oakley admitted that he had falsified his academic record and had used that record in a number of applications for employment. Given Mr Oakley’s admissions I decided it was not necessary to hold any further hearings. However, given the issues involved I decided it would be in the public interest for the Commission to publicly report its findings and recommendations.

Given the public interest issues arising from this investigation, I have decided, after considering submissions made on this issue, that it is in the public interest to make public the evidence given in private hearing. This comprises the transcript of evidence and the exhibits.

The investigation outcomes

In considering what findings to make, I adopted the principles set out in Appendix 2 to this report. The relevant findings are set out in detail in the following chapter.

I have made findings that Mr Oakley engaged in corrupt conduct by falsely representing himself as having tertiary academic qualifications for the purpose of applying for and gaining positions of employment with the Maritime Services Board, NSW Health, Department of Business & Regional Development, Newcastle Port Corporation and Sydney Water Corporation and for the purpose of an appointment as Conjoint Professor to the Graduate School of Business, University of Newcastle.

I have also found that Mr Oakley engaged in corrupt conduct in relation to his creation and use of false documents purporting to be academic degrees and his false representations to a Justice of the Peace that these documents were genuine with the intention the Justice of the Peace would certify copies as being true copies of original documents.

Recommendations are made in Chapter 2 of the report that consideration be given to the prosecution of Mr Oakley for offences under sections 178BA, 178BB or 300 of the Crimes Act 1900 (NSW).

Chapter 3 of the report sets out recommendations designed to prevent such conduct going undetected in the future.

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 the presiding officer of either of the Houses of Parliament to make the report public, whether or not Parliament is in session.


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Chapter 2 — The facts

This chapter sets out the circumstances in which Mr Oakley came to falsely claim academic qualifications, the use he made of those qualifications, and his creation of documentation to support his claims. The discovery of his falsehoods is also discussed.

Findings of fact, findings of corrupt conduct, and recommendations that consideration be given to his prosecution for specified offences are set out at the end of this chapter.

Background

After completing his High School Certificate in 1972, Mr Oakley commenced employment with the Department of Health in January 1973 as a registered nurse. In January 1980 he became a mortuary assistant at the Forensic Medicine Division of Hunter Health. He held this position until June 1987. There is no evidence to suggest that he used any improper means to gain these positions.

Between 1973 and 1985, Mr Oakley enrolled in a total of seven different subjects at two universities.

He passed two subjects at the University of New England, the first being Sociology 100.30 in 1975 as part of a Bachelor of Arts degree, the second being Human Bioscience 100-2 in 1983 as part of a Bachelor of Social Science degree. These two subjects are the only student enrolments Mr Oakley has had at the University of New England.

Between 1982 and 1985 Mr Oakley enrolled in six subjects (one being a repeat enrolment in Chemistry I) at the University of Newcastle working toward a Bachelor of Science degree. Advance standing had been granted in 1982 for one subject, Sociology 1. Of the other subjects, Mr Oakley passed two – Biology I and Biology IIB, and either failed or withdrew from the others. He withdrew from the degree program in March 1985. These are the only student enrolments Mr Oakley has had at the University of Newcastle.

In 1987 Mr Oakley successfully applied for a senior position with the Maritime Services Board. In applying for this position Mr Oakley relied on tertiary academic qualifications that he did not possess.

In subsequent years Mr Oakley applied for a number of other positions, both in the public and private sectors, in which he also relied on tertiary academic

qualifications he did not possess. The relevant qualifications falsely claimed by Mr Oakley are:

Bachelor of Science (Hons) from the University of Newcastle (1981),

Diploma in Education from the University of Newcastle (1982),

Master of Business Administration from the University of New South Wales (1984), and

Doctor of Philosophy from the University of New England (1988).

Maritime Services Board

On 11 June 1987 Mr Oakley commenced employment as Regional Manager, Hunter & North Coast Region, Waterways Division of the Maritime Services Board. The Maritime Services Board was a public authority. Mr Oakley remained in this employment until January 1988 when he voluntarily resigned.

In his evidence to the Commission, Mr Oakley admitted that when applying for this position he falsely represented that he had a Bachelor of Science (Hons) degree from the University of Newcastle, a Diploma in Education, also from the University of Newcastle, and a Master of Business Administration from the University of New South Wales.

He also told the Commission that he may also have falsely represented that he had ‘completed the course for a PhD’ from the University of New England. The Commission has not been able to establish whether he made such a representation.

The position he held was one of some responsibility. According to a curriculum vitae (CV) subsequently prepared by Mr Oakley he was responsible for an operating budget of $44.5 million and a capital works budget in excess of $30 million.

Appointment to this position was very significant in terms of Mr Oakley’s career. It meant that he had achieved substantial career advancement in moving from mortuary assistant to a regional manager position in a completely new area, managing about 17 staff. It is difficult to believe that Mr Oakley’s work experience to that point would have facilitated this advancement without the accompanying false qualifications.


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and had consented to the firm submitting his CV, which he had updated. Subsequently he submitted a formal application for the position.

Department of Business and Regional Development

The evidence indicates that the falsely claimed academic qualifications were central to Mr Oakley gaining employment in 1993 as the Director General of a newly established government department.

The Department of Business and Regional Development was created in 1993. Its role was to increase the NSW share of the developing Asia-Pacific economy. According to Mr Oakley its focus was small to medium-sized firms operating in high value-added technology and export orientated companies.

An executive search company was retained to undertake the search for a person to fill the newly-created position of Director General. This was established as an SES level 5 position with a remuneration package between $121,840 and $134,950 per annum.

The position was advertised in the Sydney Morning Herald in early June 1993. The advertisement stipulated that ‘Relevant tertiary qualifications should be stated’. Mr Oakley was one of a number of applicants for the position. In his evidence to the Commission, Mr Oakley agreed that in support of his application for the position he relied on the false tertiary qualifications contained in a CV that he had updated.

A report to the Premier’s Department prepared by the recruitment agency in August 1993 includes reference to the four academic qualifications included in Mr Oakley’s application. As the excerpt quoted below demonstrates, emphasis was placed on his academic qualifications:

The perceived deficiency in Mr Oakley’s suitability for the position may be that most of his career has been related to the health industry. However, we believe that his academic and military record show him to be capable of undertaking broad responsibility and show him to be adaptable to other roles.

This report was included in Cabinet papers submitted by the relevant Minister for approval by Cabinet of Mr Oakley’s appointment to the position. Also included was Mr Oakley’s CV. In recommending

Ramsay Health Care

After leaving the Maritime Services Board, Mr Oakley gained employment with Ramsay Health Care, a private health provider.

He told the Commission that he had previously submitted a CV with the false qualifications to a recruiting firm that was recruiting for a private health care provider based in Melbourne. He had been unsuccessful in applying for that position. He said that the recruitment firm subsequently contacted him and asked if he would have any objection to the firm submitting his CV to Ramsay Health Care. He told the Commission he agreed to this and was subsequently appointed General Manager, Ramsay Health Care, and Chief Executive of the Northside Clinic. He continued working with these organisations until early 1990 when he commenced employment with NSW Health.

According to Mr Oakley’s CV, the position with Ramsay Health Care required the development of business strategies, financial planning, and supervision of development and implementation of computerised management systems. It also appears that in this position Mr Oakley was a member of the Private Hospitals’ Association. The experience he gained in this employment would have been relevant to his next position.

NSW Health

Mr Oakley commenced employment as Deputy Regional Director, South West Region with NSW Health, a public authority, on 21 May 1990. He was based in Albury, New South Wales. He remained with NSW Health until September 1993.

This position was rated at SES level 5. According to his CV, the Region for which he was responsible had a consumer base exceeding 350,000 and included three large base hospitals and three major district hospitals. The Regional office was responsible for over 3,000 employees with an annual budget exceeding $200 million.

In his evidence to the Commission, Mr Oakley agreed that when applying for this position he relied on the four falsely claimed tertiary qualifications.

He said he had been contacted by the private recruiting firm that had put forward his name to Ramsay Health Care about the NSW Health position


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Mr Oakley for the position over other candidates, the Minister noted Mr Oakley’s ‘significant record of academic achievement’ as well as his valuable experience in management of private and public sector business operations.

Mr Oakley was appointed as Director General of the Department on 27 September 1993, for a term of five years.

As Director General, Mr Oakley reported directly to the relevant Minister. His Department managed an annual budget of $45 million and employed about 400 people.

Mr Oakley left this position in late 1995. He said he did so as it was anticipated that the incoming new government in April 1995 would amalgamate his department with at least one other department. Although he thought it possible that he might be considered to head up a new organisation, he ultimately decided to move on.

Australian Society of Certified Practising Accountants

In July 1995 Mr Oakley made an application for admission as a Fellow of the Australian Society of Certified Practising Accountants (CPAs).

A document titled ‘Resume prepared for Australian Society of Certified Practising Accountants by Dr Glen Oakley’ was submitted as part of his application. The résumé sets out the four tertiary qualifications falsely claimed by Mr Oakley.

It is not clear to what degree, if at all, his appointment was reliant on the falsely claimed academic qualifications. His position as Director General of the Department of Business and Regional Development, his knowledge of the business community and his understanding of finance appear to have played a role in the decision to admit him as a member. Formal accounting qualifications are not a prerequisite for membership.

The letter advising Mr Oakley of his appointment notes the variety of services provided to members including ‘…the opportunities of meeting with long-standing and experienced members of the profession in seminars, group discussions and on other occasions’ and the contribution membership can make to a member’s professional development.

Newcastle Ports Corporation

Subsequent to leaving the Department of Business and Regional Development, Mr Oakley worked as a consultant for his own private company for approximately six months. He then took up the position of Chief Executive Officer of the Newcastle Ports Corporation on a five year contract commencing in May 1996.

Newcastle Ports Corporation is a government-owned organisation with responsibility for the Port of Newcastle. The CEO was responsible for the port’s profitable operation and was required to initiate and develop long-range corporate plans and objectives to contribute towards the port’s long-term viability. The CEO ’s remuneration at the time of Mr Oakley’s employment in the position was between $210,000 and $250,000, depending on performance.

Mr Oakley told the Commission that he applied for the position in response to a newspaper advertisement and as a result of a conversation with a former colleague from the Department of Business and Regional Development. Mr Oakley told the Commission that this person had asked for his consent to pass Mr Oakley’s CV on to those responsible for considering the appointment to the CEO position. Mr Oakley’s written application is dated 22 April 1996 and encloses a copy of his résumé. The résumé contains the four false tertiary qualifications.

NIB Health Funds Limited

In 1998 Mr Oakley made a successful application to NIB Health Funds Limited, a private organisation, for company membership. He was appointed one of the 50 members in November 1998. He was subsequently appointed as a director in October 2001 to fill a casual board vacancy.

He initially told the Commission he did not believe he relied on his false qualifications in order to facilitate admission into the company. He said he did not believe that it was necessary to provide a copy of his CV in order to become a member of the company. However, he ultimately accepted that in correspondence from him to NIB he had enclosed a ‘snapshot’ which sets out the degrees he falsely claimed.


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Mr Oakley submitted a copy of a résumé to NIB in a letter dated 29 September 1998, in which he applied for membership. The résumé is headed ‘SNAPSHOT’ and sets out the four falsely claimed academic qualifications.

Mr Keith Lynch, Chairman of the NIB Board, provided a statement to the Commission in which he confirms a ‘CV’ containing the false qualifications was received in connection with Mr Oakley’s application for membership of the company. However, Mr Lynch has advised the Commission that it was the high regard with which Mr Oakley was held by the local business community that led to his appointment, rather than any academic qualifications.

Mr Oakley’s letter of 29 September also refers to Mr Oakley’s experience at CEO and general manager level, his previous involvement in the health care industry and his development of a ‘…strong understanding of the mechanics of political processes’ as a result of his recent ‘senior position within government’.

University of Newcastle

In 2001 Mr Oakley was appointed as Conjoint Professor to the Graduate School of Business, University of Newcastle, for a five year term commencing in January 2002. This is not a paid position, but those appointed are required to have academic qualifications. Mr Oakley agreed that when asked to become a Conjoint Professor he was asked to submit a brief résumé. In his evidence to the Commission he was not able to specifically recall whether the résumé included the falsely claimed qualifications.

Documents obtained from the University of Newcastle include the résumé submitted by Mr Oakley. The résumé is headed: ‘SNAPSHOT’. It sets out the four falsely claimed academic qualifications as part of his academic achievements.

Mr Oakley told the Commission he created ‘snapshot’ documents for the purpose of summarising his CV. He said these documents were created at the suggestion of a recruitment consultant for the purpose of directing readers of employment applications to the important areas of his CV. He denied the documents were created to make it more difficult to check up on him.

The Vice Chancellor of the University of Newcastle has provided a statement to the Commission confirming that Mr Oakley would not have been

appointed as a Conjoint Professor if he had not held tertiary academic qualifications.

Transurban

In June 2001, Transurban, a private sector company, was seeking a new Executive General Manager for NSW Transurban Citilink. The recruitment process was handled by recruitment agency Swann Group. As part of this process Mr Oakley, who was then at the Newcastle Ports Authority, was approached by Mr Arkell of Swann Group. According to Mr Arkell, Mr Oakley expressed interest in the position and gave him a résumé which included the false academic qualifications.

Mr Oakley was interviewed for the position and it appears that he was front runner for appointment. However, according to Mr Arkell one of the Board members had doubts as to Mr Oakley’s claim to have a Master of Business Administration (MBA) qualification. These doubts arose as the Board member had been head of the relevant school at the time the MBA was claimed to have been granted but had no recollection of Mr Oakley. Checks subsequently conducted confirmed Mr Oakley did not have an MBA. When Mr Arkell raised this with Mr Oakley he withdrew his application. The circumstances surrounding this discovery are dealt with below.

Sydney Water Corporation

In June 2002 Mr Oakley made an application to become a Director of the Sydney Water Corporation, a public authority.

In his evidence to the Commission he agreed that it was ‘most likely’ that in applying for this position he had submitted a CV containing the false qualifications.

Documents obtained by the Commission include a letter dated 21 June 2002 from Mr Oakley nominating himself for the position of director of the Sydney Water Corporation Board. Attached is a résumé that includes reference to two of the qualifications falsely claimed by him. These are the Bachelor of Science (Hons) and the Master of Business Administration degrees. It is not clear why the other two falsely claimed qualifications were omitted from this document.


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In his letter, Mr Oakley notes his ‘…achievements in CEO level positions in several organisations have demonstrated my commercial capacities and relate to your requirement for expertise in Business Management’.

Randwick City Council

In November 2002 Mr Oakley submitted an application for the position of General Manager at the Randwick City Council. It is relevant to note that in making this application he enclosed a CV that did not include reference to the false qualifications. It may be this was because he was aware certain people had now become aware that he had falsely claimed certain qualifications, although at this time such knowledge had not been made public.

Mr Oakley was successful in his application, however publicity about his false claims of academic qualifications meant that ultimately he did not take up the position.

Creating false documents

Among the documents obtained by the Commission are documents purporting to be certified copies of the degrees falsely claimed by Mr Oakley. When questioned about these documents Mr Oakley admitted that he had created false degrees in the late 1980s.

He said that in his position with the Army he had come into possession of various degrees from the relevant universities. He used these to create false degrees in his name. He gave the following evidence:

What I did with them was that I photocopied them, inserted my name onto them and re-photocopied them. I’m not sure if I’ve made it explicit but through a series of photocopies I was able to create the impression that those degrees had been issued to me.

He told the Commission that in some cases, in order to make the copy look authentic, he coloured the photocopy.

In February 1992 Mr Oakley took the step of having a Justice of the Peace certify copies of these forged degrees as being true copies of original documents seen by the Justice of the Peace. Another Justice of the Peace signed the copies in the capacity of a witness.

Mr Oakley told the Commission that he represented to the Justice of the Peace that the forged degrees were authentic, in order to have them certified as such.

He said the purpose of having available certified copies of the degrees was that he thought it would be less likely he would be required to provide originals. He appears to have been correct in this assumption, as he gave evidence that no one who had interviewed him for the positions for which he had successfully applied had ever queried the whereabouts of the original degrees.

Discovery

Mr Oakley told the Commission that after having falsely represented himself as having certain qualifications on the first occasion it became difficult thereafter to retract. He gave the following evidence:

…and each time it became more and more difficult because the positions that I held had become more and more prominent and my – I’ll use the term reputation – that my acknowledgment within the communities within which I worked became more and more widely spread and I had built something on a – on a pack of cards essentially. And although, yes, they were continually included, it was because I had – painted myself into a corner which became very difficult to extract myself from.

It is both surprising and disturbing that between 1987 and 2001 Mr Oakley’s reliance on false academic qualifications remained undetected. It appears this was due to repeated failures to undertake any enquiries with the relevant academic institutions to verify his claims. Indeed, Mr Oakley told the Commission that to his recollection no interview panel had ever asked him questions about his academic qualifications or courses he had studied.

Between late 2001 and mid 2002 two recruitment firms became aware that Mr Oakley was falsely claiming certain academic qualifications. These organisations were the Swann Group and Korn Ferry. Later in 2002 the Vice Chancellor of the University of Newcastle also became aware that Mr Oakley had falsely claimed academic qualifications from that university.

In August 2001 Mr Oakley submitted a CV to Swann Group in connection with recruitment for a position with Transurban. Mr Oakley told the Commission that Mr Arkell of the Swann Group asked to see


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originals of his degrees. Mr Oakley was of course unable to provide any originals.

Mr Arkell says that when he first asked to see the original degrees Mr Oakley said they were packed in a box in Albury and reminded him he had submitted certified copies. However, further doubts about Mr Oakley’s claim to have an MBA prompted Mr Arkell to follow the matter up with Mr Oakley.

Mr Arkell says that when he confronted Mr Oakley with these doubts he was told by Mr Oakley that he had been given an identity, including academic qualifications, by an Australian intelligence organisation. He said Mr Oakley referred to the Australian Security Intelligence Organisation / Australian Secret Intelligence Service ‘raid’ on the Sheraton Hotel in Melbourne in the 1980s and claimed to have been an undercover agent. According to Mr Arkell, Mr Oakley said that his superiors would ensure the matter did not go to court and that his superiors in the intelligence organisation were ‘running for cover and nobody was wanting to take responsibility.’ Mr Arkell says Mr Oakley emphasised that what he had said was a military secret and that it was important Mr Arkell did not disclose what he had been told.

In his evidence to the Commission, Mr Oakley said he told Mr Arkell that ‘ … some of the work that I had within the army required me to have qualifications that I didn’t have and that they were the reasons why the qualifications were not bona fide’. He told the Commission that in saying this he was lying to Mr Arkell. He denied telling Mr Arkell that he had worked as an undercover operative for the military or that the qualifications were a military secret.

As a result of his conversation with Mr Arkell, Mr Oakley withdrew his application for the Transurban position. In his evidence to the Commission, Mr Oakley conceded that he did so as he did not want it to be known that he had falsely claimed academic qualifications.

In about December 2001 or January 2002 Mr Oakley approached Mr Keith Lynch, Chairman of the Board of NIB Health Funds Limited, to express his interest in appointment as chief executive officer. Mr Oakley was one of a number of candidates. Korn Ferry International was retained by NIB to manage recruitment for the position.

Mr Lynch says he was contacted by Korn Ferry in May 2002 and was advised of a problem in verifying Mr Oakley’s academic qualifications. He met with Mr Oakley on 27 May. He says Mr Oakley did not deny his academic qualifications were false but claimed the false degrees were part of a profile developed for a national security organisation and he had not ceased to use the profile. Mr Lynch says that when he asked Mr Oakley if this could be verified Mr Oakley told him he did not want to do so. Mr Lynch says that when he then asked Mr Oakley to stand down as a director while further investigations were conducted, Mr Oakley offered to resign for personal reasons. This offer was accepted. Mr Lynch’s recollection of the conversation is consistent with a file note made by him in October 2002.

In his evidence to the Commission Mr Oakley could not recall precisely what he had told Mr Lynch. He believed he may have said the army had required him to have qualifications which he produced. He denied making reference to a ‘national security’ organisation. He admitted however that he lied to Mr Lynch as he was ‘… attempting to extricate myself without having it all blow up’.

To the extent there is any inconsistency between the evidence of Mr Arkell and Mr Lynch on the one hand and that of Mr Oakley on the other, I prefer the evidence of Mr Arkell and Mr Lynch as to what they were told by Mr Oakley. There is no reason why either would fabricate their evidence. Both are consistent in their recollections that Mr Oakley said the qualifications were created for him as part of his work for an intelligence or security organisation. Mr Lynch’s recollection is consistent with his file note of his conversation with Mr Oakley. As Mr Oakley admitted, he was concerned in speaking to Mr Arkell and Mr Lynch to prevent public disclosure of his falsely claimed academic qualifications. The versions of the conversations given by Mr Arkell and Mr Lynch appear more likely to achieve this purpose than the version recalled by Mr Oakley in his evidence.

In October 2002 the Vice Chancellor of the University of Newcastle also became aware that Mr Oakley had falsely claimed academic qualifications from that University. He took this discovery up with Mr Oakley.


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Mr Oakley told the Commission that when he spoke with the Vice Chancellor about the matter he admitted that he had lied about his qualifications and ultimately tendered his resignation from the University positions he held.

On 25 March 2003 Mr Oakley’s false assertions as to his academic qualifications became public knowledge when his use of those qualifications to gain senior executive employment was reported on by the Newcastle Herald.

Findings of fact

Based on his own admissions, and the other evidence set out above, I find that:

1. Mr Oakley falsely represented himself as having the following academic qualifications:


Diploma in Education from the University of Newcastle (1982), and

Master of Business Administration from the University of New South Wales (1984)

in relation to his application for employment with the Maritime Services Board in 1987.

2. Mr Oakley falsely represented himself as having the following academic qualifications:


Diploma in Education from the University of Newcastle (1982),

Master of Business Administration from the University of New South Wales (1984), and

Doctor of Philosophy from the University of New England (1988).

in relation to his applications for employment with Ramsay Health Care, NSW Health, Department of Business & Regional Development, Newcastle Port Corporation, Transurban, and Sydney Water Corporation.

3. Mr Oakley represented himself as having all four false academic qualifications in support of his application for membership of the Australian Society of Certified Practising Accountants, his application for company membership with NIB Health Funds Limited and his appointment as Conjoint Professor to the Graduate School of Business, University of Newcastle.

4. Mr Oakley created false documents purporting to be degrees for the four academic qualifications for the purpose of representing them to be genuine, including representations to a Justice of the Peace in February 1992 for the purpose of having the Justice of the Peace certify copies as being true copies of original documents seen by the Justice of the Peace.

Corrupt conduct findings

In determining findings of corrupt conduct I have adopted the approach set out in Appendix 2 to this report.

The conduct engaged in by Mr Oakley in creating and submitting documents knowingly containing false academic qualifications for the purpose of applying for various positions with public authorities is conduct which comes within section 8(2) of the ICAC Act. This is because it is conduct that involves fraud and forgery and could adversely affect the exercise of official functions by a public official in considering Mr Oakley’s applications for the positions for which he applied, evaluating his candidacy for the positions, and, where his applications were successful, causing him to be appointed to the relevant position.

Falsely representing to a Justice of the Peace (a public official within the meaning of the ICAC Act) that documents were genuine with the intention the Justice of the Peace would certify copies as being true copies of original documents would also be corrupt conduct within the meaning of section 8(2) of the ICAC Act.

Mr Oakley’s conduct in submitting applications containing false qualifications for the purpose of obtaining employment in the private sector does not come within section 8 of the ICAC Act as such conduct does not relate to the exercise of public official functions. Accordingly such conduct, even though it may involve a criminal offence, is not corrupt conduct within the meaning of the ICAC Act.

To be corrupt, conduct must also satisfy the requirements of section 9 of the ICAC Act. In the present case Mr Oakley’s conduct could involve or constitute a number of criminal offences.

A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person to accept the instrument as genuine and, because of that acceptance, to do


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or not to do some other act to that other person’s, or to another person’s, prejudice is guilty of an offence under section 300(1) of the Crimes Act 1900 (NSW) (the Crimes Act). It is also an offence under section 300(2) of the Crimes Act for a person to use such a false instrument.

The creation of forged degrees and their use as outlined above could constitute a making and use of a false instrument for the purpose of these sections.

Both offences carry a maximum period of imprisonment of up to 10 years.

It is an offence under section 178BA of the Crimes Act for a person to obtain any money or valuable thing or any financial advantage by deception. The obtaining of paid employment through use of false qualifications could constitute an offence under this section.

To prove this offence it is necessary to show that the deception was the effective cause of the obtaining of the benefit. The use of the false academic qualifications was certainly important in securing Mr Oakley the position with the Department of Business and Regional Development. It is likely that as time went by the falsely claimed academic qualifications became less relevant to him gaining employment. Accordingly this offence may not be relevant to his later applications for employment.

It is an offence under section 178BB of the Crimes Act for a person to obtain any money or valuable thing or any financial advantage of any kind by making or publishing any statement which the person knows to be false or misleading in a material particular. The making or publishing of false academic qualifications or documents containing references to false academic qualifications could constitute an offence under this section.

Unlike section 178BA, it is not necessary to prove that the deception was the effective cause of obtaining the benefit. It is sufficient to prove that the false statement may be taken into account by the person to whom it is made in reaching his or her decision. It is not necessary to show the statement was actually taken into account.

Both these offences carry a maximum period of imprisonment of up to five years.

I find that Mr Oakley engaged in corrupt conduct by falsely representing himself as having tertiary academic qualifications for the purpose of applying

for and gaining positions of employment with the Maritime Services Board, NSW Health, Department of Business & Regional Development, Newcastle Port Corporation and Sydney Water Corporation and for the purpose of an appointment as Conjoint Professor to the Graduate School of Business, University of Newcastle.

I also find that Mr Oakley engaged in corrupt conduct in relation to his creation and use of false documents purporting to be academic degrees and his false representations to a Justice of the Peace that these documents were genuine with the intention the Justice of the Peace would certify copies as being true copies of original documents.

Section 74A(2) statement

Section 74A(2) of the ICAC Act provides that any report prepared by the Commission pursuant to section 74 of the ICAC Act must include 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 give to, inter alia, the prosecution of the person for a specified criminal offence. Such a recommendation may be made even though the relevant conduct may not be corrupt within the meaning of the ICAC Act.

Mr Oakley is an ‘affected’ person.

The relevant offences are set out above.

During the course of his evidence to the Commission, Mr Oakley made a number of admissions. These admissions were made subject to a declaration made pursuant to section 38 of the ICAC Act. The effect of this declaration is that his evidence cannot be used in evidence against him in any subsequent criminal prosecution (other than for an offence under the ICAC Act).

However, other evidence may be available for a prosecution. This would include evidence from persons responsible for considering his applications. Evidence could also be obtained from the relevant universities that Mr Oakley did not hold the academic qualifications he claimed in his applications. Evidence would also likely be available from the Justice of the Peace who was asked to certify copies of the forged degrees and the other Justice of the Peace who witnessed the certification.


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I recommend that the Director of Public Prosecutions give consideration to the prosecution of Mr Oakley for offences under sections 178BA, 178BB or 300 of the Crimes Act 1900 (NSW), regarding his creation of false documents and his false representations of having academic qualifications in relation to:

his applications for employment with the Maritime Services Board, Ramsay Health Care, NSW Health, Department of Business & Regional Development, Newcastle Port Corporation, Transurban, and Sydney Water Corporation,

his application for appointment as Conjoint Professor to the Graduate School of Business, University of Newcastle, and

his false representations to a Justice of the Peace that documents were genuine with the intention the Justice of the Peace would certify copies as being true copies of original documents.


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Chapter 3 — Corruption prevention

This chapter examines the systemic implications of Mr Oakley’s corrupt behaviour, including the ramifications for public sector recruitment and practice, and the means by which the corruption risks identified can be addressed. Current public sector recruitment practices are examined in light of the results of an informal survey of recruiting practices within the public sector, undertaken by the Commission.

The chapter concludes with recommendations designed to prevent conduct of the type engaged in by Mr Oakley going undetected.

Mr Oakley’s career

This section examines some salient points that highlight the impacts of Mr Oakley’s corrupt behaviour on ethical practice and accountability in the public sector, and/or have a bearing on the timing and direction of corruption prevention interventions.

From the time Mr Oakley first used fabricated testamurs in 1987 to support his claims as a candidate to a senior position with the Maritime Services Board, rapid career advancement was ensured. His first senior appointment represented a promotion – from mortuary assistant to regional manager – of stellar proportions.

A number of the senior appointments subsequently secured by Mr Oakley were with NSW Government departments and agencies.

Mr Oakley benefited from his corrupt behaviour and remained undetected for the best part of 15 years. At no time during this period were his false claims and false documents questioned by the agencies and authorities seeking to employ him or engage him in other honorary or part-time capacities. No-one asked to see originals of Mr Oakley’s degree certificates during this period.

It was only by chance that the scam started to unravel.

The evidence Mr Oakley gave to the Commission makes it clear that he was aware of the seriousness of his corrupt behaviour. He knew that he had been compounding the original fraud on a regular basis while he carried out his duties in the public sector. He gave the following evidence:

… (I) chose to carry on the façade. For example, a head of a government department and the chief

executive of a statutory state-owned corporation is required to sign off on annual reports – I would have signed off on – an annual report which contained a statement put there by the public affairs people that I was the Chief Executive Officer and these were the qualifications that I had.

Principal officers of public authorities are required under section 11 of the ICAC Act to report suspected corruption in the agency to the Commission. Mr Oakley held public sector CEO positions on two occasions. There are clear implications here regarding the integrity of a system for reporting and resisting corrupt conduct in the public sector. There are public expectations associated with public office: that the appointee is qualified for the position, and that he or she is honest. Fabricating qualifications is a fundamental betrayal of these expectations; a candidate or incumbent who does this is unfit for employment in the public sector. Additionally, effective and ethical leadership of public sector organisations requires CEOs to set an example. Mr Oakley’s behaviour falls far short of the required ‘tone at the top’ that is essential to building organisational integrity.

The false academic qualifications claimed by Mr Oakley were said to have been achieved by the age of 33. Some of Mr Oakley’s claims might have seemed far-fetched if anyone had looked closely at them. The claims associated with his PhD had him working as a Regional Manager with the Maritime Services Board and a senior managerial position with Ramsay Health Care, while writing a PhD in about two years. By any measure, successfully managing a full-time senior work-load and fast-tracking a PhD represents exceptional individual achievement.

Although the falsely claimed academic qualifications were initially important to Mr Oakley gaining employment in senior positions, and in particular his position with the Department of Business and Regional Development, as time went on and he accumulated senior level experience, the emphasis in the selection process was increasingly on that experience rather than on academic qualifications. It was a notable shift of focus because it meant that, more than ever, the authenticity of the academic qualifications on which Mr Oakley’s career had been built, was taken on faith.

In summary then, the kind of corrupt conduct Mr Oakley successfully perpetrated has serious ramifications for the public sector recruitment process


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and for probity systems and requirements within the public sector. There were various points throughout Mr Oakley’s career when the appropriate checks might have been made and the fraud exposed, but they were not. As Mr Oakley’s career advanced and experience was valued over qualifications, it became less likely that qualification checks would be conducted.

Verifying qualifications and experience - a snapshot of current public sector recruiting practices in New South Wales

In preparing this report the Commission sought information on current public sector recruiting practices with regard to checking applicants’ qualifications and work experience claims.

The Commission telephoned 23 public service organisations, including agencies listed at Schedule 1 of the Public Sector Employment and Management Act 2002, as well as local councils and universities, about these aspects of their recruitment processes. In each case the senior person responsible for recruitment provided the information. These agencies are referred to below as the ‘surveyed agencies’. In addition, the Premier’s Department provided written information about its practices in regard to CEO recruitment.

All the surveyed organisations said that they undertook most, if not all, of their own recruiting. Some use private recruitment firms to find candidates for very senior positions or, occasionally, positions that require very specialised skills. For recruiting senior executives some agencies have used the Central Corporate Services Unit, or, in the case of local government, the Local Government and Shires Associations.

In relation to checking job applicants’ claims in relation to qualifications and professional experience, these agencies said that the checks were done at either the short-listing stage or when one or more preferred candidates had been selected. The most common means of checking is by telephone. Some agencies prefer this method, as referees are likely to be more candid over the telephone.

Seven of the organisations said they had previously had a problem with a candidate falsifying details of his or her qualifications and/or professional experience. One person believed that falsifying professional experience was the agency’s greatest risk.

The Premier’s Department undertakes CEO recruitment on average 20 times a year. Most appointments are made from within the public sector, and most recruitment is undertaken in-house. Recruitment agencies would usually be engaged only in special circumstances, for example when a national or international search is required. In the case of Mr Oakley, a recruitment agency reporting to the Premier’s Department had recommended his appointment as Director General of the Department of Business and Regional Development.

In the history of CEO recruitment by the Premier’s Department, Mr Oakley’s appointment is the only one where it has become known that an applicant falsified his or her qualifications.

Checking qualifications

Surveyed agencies made a number of comments about checks undertaken in relation to candidates’ claimed qualifications. All agencies except for one said they always asked to see originals if the qualifications were required for the position. The remaining organisation said it would accept copies of claimed qualifications, either certified by a Justice of the Peace or uncertified.

A second comment was that, in today’s public service, it is unusual for an academic qualification to be a requirement for a position, and so, while original documents were sighted to verify a candidate’s qualifications, this was, in the main, because candidates voluntarily provided them. It would only be if the qualification were required for the position that a number of organisations said they would insist on seeing the original because that was the only time they thought they would have the authority to do so. However, the comment was also made that if the qualification was required for the position then the original document or an authorised academic transcript would be required to be produced, regardless of when the qualification had originally been gained. Many organisations said they kept a copy of these qualifications.

One organisation said that their senior manager contracts included a clause stating that falsely claiming qualifications would lead to instant dismissal.

When asked specifically about qualification checks and experience checks for senior manager or senior executive positions, the main message was that the same process was used regardless of the status of the position. A number of respondents commented

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that the process would be more rigorous given the responsibilities of senior positions. It was also stated that qualifications are not usually mandatory for senior positions and that senior-level experience was the more important criterion. Several agencies commented that if the candidate was from within the public sector then evidence of qualifications and relevant experience would already be available on his or her public service record. These comments appear to be based on an assumption that all documents on official files are authentic, an assumption which this investigation into Mr Oakley’s conduct shows would not be sound. Some agencies commented that the Premier’s Department undertook their CEO recruitment, so they were unsure about the process for verification.

The Premier’s Department generally sights a copy of any qualification claimed by a candidate in its CEO recruitment process, but does not normally carry out verification checks of qualifications, including certified copies. The Department’s consultancy agreements with recruitment firms do not specify that those agencies must verify qualifications.

Checking work experience

In relation to checking work experience, all organisations in the survey said they were strict about checking referees, including a requirement that at least one referee must be a recent supervisor. When asked how far back in a person’s work history these checks would be made, most said that it was recent experience that was important.

The Premier’s Department, like other public sector agencies, checks work experience claims with applicants’ (generally, the recommended applicant’s) referees. Recruitment firms engaged by the Department are not bound by their consultancy agreements to provide checks of work experience.

Using private sector recruitment firms

It was two private sector firms that checked on Mr Oakley’s qualifications and found them to be false. As stated earlier, it seems that contracted recruiting firms are only used by the public sector for very senior positions, or occasionally for positions that require very specialised skills.

Only nine of the surveyed organisations said they use private firms for recruiting and two of these use the Local Government Association. Of these nine, only

two do not require ‘evidence’ of the qualifications checks having being done. Of the remainder, most either require the firm to provide a copy of the qualifications or require the successful candidate to provide original documents on taking up the position.

When speaking with the recruitment firms involved in this matter, one view was that they were not being asked by public sector clients to provide proof-of-qualifications checks. Information from the Premier’s Department supports this view. It was also said that if the client required these checks to be done then the recruitment firms would undertake them. The Commission was also told that on previous occasions, when trying to conduct qualifications checks, one firm experienced some reluctance on the part of institutions to provide the information without the candidate’s permission.

Towards best practice recruitment

The history of Mr Oakley’s employment after 1987 raises a number of issues that will help public sector organisations develop a rationale and specific strategies for corruption prevention in relation to recruitment.

First, Mr Oakley’s predetermined strategies to circumvent his being caught out in the fraud were successful for a long time. The seriousness of the fraud as a means of undermining public sector reporting and corruption risk-management requirements has already been mentioned. With Mr Oakley’s fraud being so successful and long-lived the agencies with which he had been associated were vulnerable for a lengthy period

Second, the agencies that employed Mr Oakley did not consider it necessary to check his qualifications during the recruitment process, beyond the copies (certified by a Justice of the Peace after 1992) that Mr Oakley provided voluntarily with each CV.

Third, once Mr Oakley was on the pathway to substantial career progression, it seems that his references from previous employers were enough to satisfy the next prospective employer. There are particular implications here for the public sector in relation to executive recruitment, given that candidates usually come from the public sector and what is already on record is generally accepted as bona fide.



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A fourth aspect to this matter seems to have been simply that it was beyond most people’s comprehension that a person on a senior career path would deliberately lie to this extent and perpetuate the lie for such a long time. Consequently, Mr Oakley’s documents were accepted in good faith. Even the University of Newcastle did not insist on seeing his original documents, despite twice asking for them when he was appointed as a conjoint professor (Mr Oakley had omitted to tell the University where his qualifications had supposedly been awarded, no doubt because he was claiming two of them to be from the University of Newcastle).

There is a clear imperative to prevent the recurrence of this kind of fraud. Public officials, particularly at senior and CEO levels, must be beyond reproach. The current system of public sector recruitment, as revealed and discussed in this chapter, does not provide a sufficiently robust safeguard against a candidate successfully lying to obtain employment, benefiting from a career momentum generated by the corrupt act, and by fraudulent means becoming established in a position of trust.

The key to successful intervention lies in a rigorous verification policy.

To ensure that the process is efficient, reliable and does not become overly burdensome the responsibility for providing proof of claims should lie with the candidate who makes them. Prospective candidates should be told at the outset that any claims made with regard to professional and academic qualifications will need to be capable of being verified with the relevant institution at some defined stage in the recruitment process. To facilitate this, all applicants will need to give written permission for the relevant institution to be contacted for verification purposes. All candidates should also be required to sign a certificate declaring that the qualifications they assert are genuine and that they acknowledge that any falsely claimed qualifications can lead to their dismissal.

To guard against sophisticated frauds and the use of phoney certificates, academic and professional qualifications of successful candidates should in all cases be verified with the issuing institution where they are required for a position or where – as in the case of Mr Oakley’s appointment to the Department of Business and Regional Development – they are a significant determinant in the decision to appoint an applicant.

The Commission recognises that in other cases it may be unnecessarily onerous to require public sector employers to check every successful candidate’s academic or professional qualifications with the issuing institution. It should be sufficient to undertake random verification. The knowledge that claims may be checked with the issuing institution should act as a deterrent to the submission of bogus claims. In addition, it should be made clear that any false claims will be grounds for termination of employment and/or prosecution for any relevant offence.

Evidence was also given as to how Mr Oakley successfully misled a Justice of the Peace for the purpose of having the Justice of the Peace certify copies of the falsely claimed academic qualifications. Advances in technology and the availability of sophisticated software make the falsification of qualifications easier. Apart from demonstrating the problems of only relying on sighting qualifications, this evidence raises questions as to the extent to which Justices of the Peace can reasonably be expected to exercise due diligence in certifying documents. This broader issue is beyond the scope of this report but it is something that the Commission intends to raise with the appropriate authorities that oversee the training and conduct of Justices of the Peace.

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Recommendations

The Commission has an interest under the ICAC Act in policies and practices which manage, minimise and prevent corruption in public sector agencies, universities and local government councils.

The Commission recommends that public sector agencies, universities and local government councils review their current recruitment policies and procedures and ensure that they comply with the following specific recommendations, which are designed to address and minimise corruption risks in relation to recruitment.

Recommendation 1

Where job applicants assert professional and/or academic qualifications as part of their claim to a position, these qualifications should be verified prior to appointment.

a. The employer’s designated representative (which includes any recruitment consultants engaged by the employer) should sight original certificates or certified (by the institution) academic transcripts. The costs of producing this documentation is to be borne by the applicant;

b. To facilitate verification each applicant should be required to give written permission to the prospective employer’s designated representative for the relevant educational institution to be contacted for verification purposes;

c. Academic and professional qualifications of successful candidates should in all cases be verified with the issuing institution where they are required for a position or where they are a significant determinant in the decision to appoint an applicant;

d. In other cases academic and professional qualifications should be verified with the issuing institution on a random basis;

e. An auditable record of any verification should be kept and where the verification has been conducted by recruitment consultants, the consultants should be obliged under the terms of their engagement to provide the client employer with written evidence that they have undertaken the required checks.

Recommendation 2

All applicants should be informed through applicants’ information packages of the requirement for candidates to verify qualifications prior to appointment and that such claims may be verified with the issuing institution. All applicants should also be informed in clear terms that falsely claiming qualifications will lead to their dismissal and/or prosecution for any relevant offence.

Recommendation 3

All applicants should also be required to sign a certificate declaring that the qualifications they assert are genuine and that they acknowledge any falsely claimed qualifications can lead to their dismissal.

Recommendation 4

Letters of appointment or other contractual documentation should include a provision that permits an employer to terminate the employment of an applicant who falsely claims qualifications.



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The Independent Commission Against Corruption Act 1988 (the ICAC Act) is concerned with the honest and impartial exercise of official 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 official functions. It provides mechanisms designed to expose and prevent the dishonest or partial exercise of such official 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 the Commission believes should be taken or considered.

The Commission can also investigate the conduct of persons who are not public officials but whose conduct adversely affects or could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority. The Commission may make findings of fact and form opinions based on those facts as to whether any particular person, even though not a public official, has engaged in corrupt conduct within the meaning of the ICAC Act.

The ICAC Act applies to public authorities and public officials as defined in section 3 of the ICAC 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 confidence in the integrity of that service. It is recognised that corruption in the public service not only undermines confidence in the bureaucracy but also has a detrimental effect on the confidence 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 inefficiency, 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 authority (and others with similar vulnerabilities) to bring about the necessary changes or reforms in procedures and systems, and, importantly, promote an ethical culture, based on an ethos of probity.

The principal functions of the Commission, as specified 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 officials in reviewing practices and procedures to reduce the likelihood of the occurrence of corrupt conduct.

It is not part of the Commission’s role to prosecute for offences that an investigation undertaken by the Commission may reveal. However, the Commission may form and express an opinion as to whether or not any act, omission or decision which falls within the scope of its investigation has been honestly and regularly made, omitted or arrived at, and whether consideration should or should not be given to the prosecution or other action against any particular person or persons, be they public officials or not.

Appendix 1 — The Commission’s role

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Corrupt conduct is defined in section 7 of the Independent Commission Against Corruption Act as any conduct which falls within the description of corrupt conduct in either or both subsections (1) or (2) of section 8 and which is not excluded by section 9 of the ICAC Act. An examination of conduct to determine whether or not it is corrupt thus involves a consideration of two separate sections of the ICAC Act.

Section 8 defines the general nature of corrupt conduct. Section 8(1) provides that corrupt conduct is:

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

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

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

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

Section 8(2) specifies conduct, including the conduct of any person (whether or not a public official), that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority, and which, in addition, could involve a number of specific offences which are set out in that subsection. Such offences include fraud and forgery.

Section 9(1) provides that, 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 official, 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.

Relevant offences are set out in Chapter 2 of the report.

Three steps are involved in determining whether or not corrupt conduct has occurred in a particular matter. The first step is to make findings of relevant facts. The second is to determine whether the conduct, which has been found as a matter of fact, comes within the terms of section 8(1) and/or section 8(2) of the ICAC Act. The third and final step is to determine whether the conduct also satisfies the requirements of section 9 of the ICAC Act.

In applying the provisions of section 9 of the ICAC Act it is appropriate to recall the approach outlined by Priestley JA in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. His Honour said that the word ‘could’ was to be construed as meaning ‘would, if proved’. In the course of discussing the proper construction of section 9(1)(a) of the ICAC Act, he said:

Despite section 8, conduct does not amount to corrupt conduct unless, in the case of a criminal charge which could be tried before a jury, the facts found by the ICAC as constituting corrupt conduct would, if the jury were to accept them as proved beyond reasonable doubt, constitute the offence charged …

Such a construction is applicable to sections 9(1)(b), (c) and (d).

A finding of corrupt conduct against an individual is a serious matter. It may affect the individual personally, professionally or in employment, as well as in family and social relationships. In addition, there is no right of appeal against findings of fact made by the Commission nor, excluding error of law relating to jurisdiction or procedural fairness, is there any appeal against a determination that a person has engaged in corrupt conduct. This situation highlights the need to exercise care in making findings of corrupt conduct.

In Australia there are only two standards of proof: one relating to criminal matters, the other to civil matters. Commission investigations, including hearings, are not criminal in their nature. Hearings are neither trials nor committals. Rather, the Commission is similar in standing to a royal commission and its investigations and hearings have most of the

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Appendix 2 — Corrupt conduct defined and the relevant standard of proof


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characteristics associated with a royal commission. The standard of proof in royal commissions is the civil standard, that is, on the balance of probabilities. This requires only reasonable satisfaction as opposed to satisfaction beyond reasonable doubt, as is required in criminal matters. The civil standard is the standard which has been applied consistently in the Commission. However, because of the seriousness of the findings which may be made, it is important to bear in mind what was said by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336:

... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (at 362)

This formulation, as the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, is to be understood:

... as merely reflecting 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 finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (at 171)

Also relevant are Rejfek v McElroy (1965) 112 CLR 517, the report of McGregor J into Matters in Relation to Electoral Redistribution in Queensland in 1977 and the report by the Hon W Carter QC into An Attempt to Bribe a Member of the House of Assembly (Tasmania) in 1991.

As indicated above, the first step towards considering a finding of corrupt conduct is to make a finding of fact. Findings of fact and determinations set out in this report have been made applying the principles detailed in this Appendix.