Hepburn Shire mayor charged in "private prosecution"

The mayor of a Central Victorian council says charges laid against him by a private citizen are "threat to our democracy".

Tony Clark is the third representative of Hepburn Shire Council to be served charges by a resident under rarely used laws allowing for a "private prosecution".

Mr Clark said the unproven charges laid by Hepburn businessman David Penman were exploiting a loophole that undermined local government.

"Having councillors being forced to stand down where there are charges that are not laid by an independent integrity or prosecutorial authority, I think it presents... a threat to our democracy," he said.

"It provides an opportunity for people to attack duly elected officials without any real foundation."

The charges relate to an allegation that Hepburn Shire Council adopted its current annual budget without the inclusion of specific financial documents.

Mr Clark has had to step down from council temporarily, effective immediately, as per the Local Government Act 2020, but said he would be defending the charges vigorously.

Not the first time

Mr Penman also previously laid charges in March this year against councillor Don Henderson, who has also had to temporarily step down from council, and the council's CEO Bradley Thomas, who announced his resignation last month.

Mr Thomas had also been the subject of an assault during his tenure at Hepburn Shire, where resident Stephen Schenk pleaded guilty to unlawful assault and was fined $500 for throwing a cup of coffee on Mr Thomas following an argument about outstanding business permits.

Mr Penman is attempting to prosecute Mr Thomas for two counts of misconduct in public office and Cr Henderson for three counts of a similar charge under local government laws.

Two further charges were also laid by Mr Penman in late May.

Lawyers for Cr Henderson and Mr Thomas have been trying to get the matters thrown out of court, and the ABC understands the Office of Public Prosecutions is assessing the matter.

Deputy mayor Shirley Cornish will take over as mayor during Cr Clark's absence.

Threats of more charges

In comments online, Mr Penman also claimed to have charged another three councillors alongside Cr Clark in relation to his allegations about the budget, but the council is yet to confirm if that is the case.

Mr Clark said he was aware Mr Penman had threatened to lay further charges against other councillors, which could lead to the entire council having to stand down and administrators being appointed to run Hepburn Shire Council.

"You could go down to a Magistrates Court … there is very little review or due diligence … a person can spend, I think it's $26.50, and lodge a charge and a council will be forced to stand down," Mr Clark said.

In a statement, Hepburn Shire Council stressed that all matters were the subject of a private prosecution, and therefore had "not involved an investigation, fact‑finding process, or assessment by Victoria Police or any public prosecutorial authority".

"It is unfortunate that Cr Clark is forced to stand down while unfounded and untested allegations keep him from performing duties he was elected to do, and the impact that similar untested claims and proceedings have had on Don Henderson and Council’s Chief Executive Officer," a council spokesperson said.

Closing the "loophole"

The council said it was taking the matter seriously, but "welcomed proposed amendments by the Victorian government that would mean in similar circumstances the automatic standdown process would not apply to councillors".

Mr Clark said a second reading of the proposed amendments to close the "loophole" is going to parliament on July 28, which is "a very positive thing".

"Unfortunately it doesn't help those that are already involved," he said.

"I will be doing my best to work out how we can defend democracy and do the best for our community because I think these sort of actions damage our community.

"They're not an attack on the council, they're actually an attack on our community.

"Who would want to stand to be elected representatives when you're exposed to these sorts of unprovoked actions?"

Mr Clark said the online and personal attacks against him in the lead-up to the private prosecution charges have had big impact on his life.

"I lost my eyesight when I was 20, and so life has been a challenge... and it's been hard... [but] I have to say the last couple of weeks have been some of the hardest in my life," he said.

"Having to deal with the stress and the intimidation … personally it's been really tough."