David Penman, a Daylesford small business owner, has used little-known laws to force five councillors and the CEO of Hepburn Shire Council to stand down after launching private prosecutions against them. The action has left only two of seven councillors able to serve, effectively stopping the council from making major decisions.
Charges and legal basis
Under Victoria's Local Government Act 2020, any councillor facing a criminal charge must step down while the matter is in court. Penman privately prosecuted Mayor Tony Clark and councillors Shirley Cornish, Lesley Hewitt, Pat Hockey, and Don Henderson, along with CEO Bradley Thomas. Most charges relate to allegations that the council unlawfully adopted its most recent budget without including necessary financial documents.
Penman said his actions were an example of “democracy functioning through the rule of law.” In a social media post on Monday, he wrote: “Democracy does not mean elected representatives are immune from the law. Democracy requires elected representatives to obey it.” He added in a previous post: “Private prosecutions exist precisely because public officials must remain accountable.”
Council's response and impact
On Monday, Hepburn Shire Council issued a statement calling the private prosecutions “disrupting democracy.” A spokesperson said the charges “have not involved any investigation, fact‑finding process, or assessment by Victoria Police or any public prosecutorial authority.” The council expressed disappointment over the impact on the community's right to representation.
Councillor Brian Hood, one of the two remaining councillors able to serve, said with five councillors facing charges, there would be no quorum. “We’re faced with a situation where the council at a certain level has been shut down,” Hood said. However, day-to-day operations like rubbish collection, libraries, and road maintenance continue unaffected. “We can’t make any major decisions because there are only two of us and therefore we can’t meet,” he added.
Government intervention and potential law change
Hood said the council is “in limbo” until court proceedings conclude, and the state government may appoint an administrator. The Victorian government is considering amending section 229 of the Local Government Act to prevent similar situations. Hood supports the change, which would require councillors to stand down only if charges are laid by police or a statutory authority, not by private individuals. He called on Local Government Minister Paul Hamer to act quickly: “To state the obvious, the minister for local government will need to act pretty quickly so that we can move forward as an organisation.”
A spokesperson for the Victorian government said it was “very concerned about the situation unfolding” and has introduced legislation to allow councillors to continue their roles when facing private prosecutions. The minister has also written to the director of public prosecutions to draw attention to the matter.
