FORMER South Gippsland Shire councillor Andrew McEwen has pleaded guilty to one count of “misuse of position” and will need to pay $1500 to Bass Coast Health and $15,000 in legal fees to the prosecution.
But a conviction will not be recorded – something his lawyer was pushing for – so Mr Mc-Ewen could stand for the South Gippsland Shire Council in October 2021.
Mr McEwen will also be put on a 12-month Good Behaviour Bond.
The maximum penalty for the offence was a five-year jail sentence or 600 penalty units – around $95,000 – or both.
The case centred around one email about the Bald Hills Wind Farm which was onforwarded by Mr McEwen to a Tarwin Lower resident. It was originally sent by the then-shire CEO Tim Tamlin to councillors and the executive leadership.
After breaking down the contents of the email, Magistrate Jacinta Studham said the email “essentially does not reveal a great deal more than what the opposing parties would’ve already known”.
The prosecution alleged that on or about January 15, 2018, at Meeniyan, Mr McEwen “misused” his position by “making improper use of information acquired as a result of holding the position of councillor to gain or attempt to gain, directly or indirectly, an advantage for another person.”
The prosecution alleged that Mr McEwen provided a Tarwin Lower resident with information, “to assist, or in an attempt to assist” the resident in his proceeding against the South Gippsland Shire Council in the Supreme Court – the original motion of which was filed on December 19, 2017.
The motion alleged that the council was not complying with a previous court order around a noise dispute about the Bald Hills Wind Farm.
The “improper use of information” was the leaking of an internal email sent by Mr Tamlin to councillors and the executive leadership on December 22, 2017, with the subject heading ‘Bald Hills Wind Farm Update’ plus an attachment entitled ‘Windfarms.pdf’.
That email set out why the delay to the court order had occurred; “essentially, to get an expert involved and also a reference to whether or not it’s actually an issue for local government,” said Magistrate Jacinta Studham.
The email was then used via legal representatives in the Supreme Court.
Mr McEwen deleted the email from his ‘Sent items’ and ‘Deleted items’ folders, the court heard.
He denied he onforwarded the email, according to reports in local press, said Barrister Peter Matthews, for the Local Government Inspectorate.
During discussions about the Bald Hills Wind Farm matter at a meeting of councillors on May 9, 2018, Mr McEwen told those present that he was being investigated for the leaking of the Tamlin email but it was possibly one of the senior staff members which shared the email, the prosecution argued.
Most of the email contents were already known to both parties, the court heard, except for a part around Mr Tamlin meeting with ministerial staff about the conflicting legislation between which is the appropriate Act that applies with complaints around wind farms – the Planning and Environment Act or the Health and Wellbeing Act.
Barrister Matthews conceded that in the scale of seriousness of the offence, one could imagine more serious cases.
“For instance, the revealing of a tender process with commercially sensitive information in relation to tenderers.”
However, he went on to say that it was an intensively serious offence, “no matter where the offence falls on that scale.”
“It’s got a five-year jail sentence as its maximum, for a start.
“But perhaps more importantly, the rationale for the offence is the need… for constituents to have confidence in their elected representatives. It is a position of trust.”
Mr McEwen’s barrister, Paul J Lawrie of Queen Street, Melbourne, read out part of the email from Mr Tamlin which said he had met with ministerial staff about conflicting legislation about dealing with wind farm complaints.
According to Mr Lawrie, Mr Tamlin had also been in contact with the Municipal Association of Victoria and other councils who’ve experienced similar issues.
The email, in part, read: “I’ll be bringing a report to council to consider submitting a motion to the MAV… requesting the State Government reviews its legislation…”
Mr Lawrie said: “This was, it seems, hardly a closely kept secret in the shire council. This was something that it seems Mr Tamlin was actively sounding out opinion and support for – both at local government and state government level.
“So… it’s hardly a state secret.”
He said the email was already in possession of the Tarwin Lower resident as someone had dropped off a hard copy of the email in his mailbox.
Mr Lawrie alleged that the resident approached Mr McEwen – although “they didn’t know each other”, other than the resident knowing he was a councillor.
The resident asked him about the flyer referenced in the email.
Mr Lawrie said there was “no evidence whatsoever” that Mr McEwen had dropped off that hardcopy.
The lawyer also said that Mr McEwen’s “practice” in forwarding emails from his councillor email to his personal email was a “practice adopted him… and as I understand it others adopted the practice as well”.
Mr Lawrie argued the case for no conviction to be recorded – highlighting his 47 years directly in public service or otherwise in service in the public.
Magistrate Studham accepted that Mr McEwen was a community-minded person with an “exemplary” history. She said the character references were “glowing” in terms of his contribution to the community.
Mr Lawrie said: “His motivation in being so anxious to avoid a conviction is so that he can stand for election again.
“At age 70, you’re not trying to climb the greasy pole – you’re standing for election because you want to give back.
“He’s not going to have some stellar advancement to other avenues of politics because his determination is to run for council again when that opportunity arises for the South Gippsland Shire Council.
“It’s to complete his working life doing what he loves doing and that’s being a community representative.”
Magistrate Studham said she was “somewhat bound” by two other cases where there were charges of misuse of position.
“I must say I’m surprised that this type of offence… the penalties are without conviction undertaking on both matters, I would’ve expected a heavier penalty and I am somewhat bound by those decisions.”
In one case, the accused received a 12-month Good Behaviour Bond and was ordered to pay $8000 in fines.
In the other case, the accused also received a 12-month Good Behaviour Bond, but was ordered to pay $1000 to the Court Fund and $5000 in legal costs.
The prosecution said she wasn’t bound at all – just guided.
The Magistrate said: “The facts of this case don’t take it substantially far away from those two cases for the matters we just discussed then: financial advantage vs information gained, taking into account post offence conduct.”
After taking into account his public service, and character references, the Magistrate handed down her judgement.
“Whether or not you’re fit for office to continue to represent your community; I think the community will vote one way or the other in relation to that.”
Magistrate Studham chose a local recipient of the money because otherwise the revenue from a fine would go into government coffers, she said.