David Penman, a Daylesford small business owner, has used a little-known provision in Victoria's Local Government Act 2020 to privately prosecute five Hepburn Shire councillors and the council's CEO, effectively paralyzing the council's ability to make major decisions. Under the Act, any councillor facing a criminal charge must step down while the matter is before the courts. As a result, only two of the seven councillors remain able to serve, leaving the council without a quorum for significant decisions.
Details of the Prosecution
The charges against Mayor Tony Clark and councillors Shirley Cornish, Lesley Hewitt, Pat Hockey, and Don Henderson, along with CEO Bradley Thomas, relate to allegations that the council unlawfully adopted its most recent budget without including necessary financial documents. Penman stated that his actions represent "democracy functioning through the rule of law," emphasizing that elected representatives are not immune from legal accountability. In a social media post, he alleged that councillors "adopted a blank-sheet budget" and failed to demand legally required documents.
Council's Response and Impact
Hepburn Shire Council issued a statement expressing disappointment, describing the private prosecutions as "disrupting democracy." The statement noted that the charges were not investigated by Victoria Police or any public prosecutorial authority. Councillor Brian Hood, one of the two remaining councillors, confirmed that the council cannot hold meetings or make major decisions due to the lack of a quorum. However, day-to-day operations such as rubbish collection, library services, and road maintenance continue unaffected.
Potential Legislative Changes
The Victorian government is considering amending section 229 of the Local Government Act to prevent similar situations in the future. Proposed changes would require councillors to stand down only if charges are laid by police or a statutory authority, not by private individuals. Councillor Hood supports this change and called on Local Government Minister Paul Hamer to act quickly to resolve the current impasse. A government spokesperson confirmed that legislation has been introduced to allow councillors to continue performing their roles when facing private prosecutions, and the minister has written to the Director of Public Prosecutions regarding the matter.
