David Penman wasn’t happy with his local Victorian council. So, he privately prosecuted five councillors

David Penman wasn’t happy.

The Daylesford small business owner didn’t like the work of his local council. So, using little-known laws that force elected officials to stand down, he essentially stopped it from making any big decisions.

In the state of Victoria, any councillor facing a criminal charge must step down while the matters are dealt with in court, according to the Local Government Act 2020.

While Penman is no police officer, the resident has launched private prosecutions against the Hepburn shire mayor, Tony Clark, and councillors Shirley Cornish, Lesley Hewitt, Pat Hockey and Don Henderson – along with the council’s CEO, Bradley Thomas. Only two of seven councillors are now able to serve.

Most of the charges relate to allegations that the council acted unlawfully by adopting its most recent budget without including necessary financial documents.

Penman said his actions were an example of “democracy functioning through the rule of law”.

“Democracy does not mean elected representatives are immune from the law. Democracy requires elected representatives to obey it,” he wrote in a social media post on Monday.

“Private prosecutions exist precisely because public officials must remain accountable,” he wrote in a previous post.

His post went on to allege that councillors “adopted a blank-sheet budget. They failed to demand the legally required documents. They accepted assurances at face value. The budget then changed materially after their vote and does not resemble what they thought they had approved.”

On Monday, Hepburn Shire Council issued a statement saying the private prosecutions were “disrupting democracy”.

“The matters are proceeding as private prosecutions and, like the previous charges, have not involved any investigation, fact‑finding process, or assessment by Victoria Police or any public prosecutorial authority,” the spokesperson said.

“Council is limited in what it can say publicly about these charges since they are before the courts. Council can say that it is bitterly disappointed with the impact that this individual’s actions are having on our community and its right to be represented by its democratically elected representatives.”

Brian Hood, one of the last two councillors who is able to serve the shire, said with “five of the seven councillors” facing charges, there would not be a quorum.

“We’re faced with a situation where the council at a certain level has been shut down,” Hood said.

But while Penman may have stymied matters in the council chamber, Hepburn’s day-to-day council operations remain unaffected, Hood said.

“So we’re collecting the rubbish and opening the libraries and customer service desks and maintaining the road network and all of the usual operational things.

“But we can’t make any major decisions because there are only two of us and therefore we can’t meet.”

Hood said the council was “in limbo” until the court proceedings run their course. The state government may put in an administrator in the meantime, he said.

The Victorian government is looking at changing section 229 of the act, which would prevent this from happening again, he said. Hood said he would support a change to the law.

“The change that they’re looking to implement would mean that, if the charges were laid by the police or any other formal statutory authority, then in the case of serious charges, the councillor would be required to stand down.

“However, the changes, if they’re adopted, would mean that if the charges are laid by a private individual, as they are in this case, they would still be heard through the legal system in the normal manner, but the councillor would not need to stand down from their role in the meantime.”

He called on the minister for local government, Paul Hamer, to step in.

“To state the obvious, the minister for local government will need to act pretty quickly so that we can move forward as an organisation,” he said. “At the moment we’re sort of in no man’s land, so that situation can’t be allowed to exist for too long.”

A spokesperson for the Victorian government said it was “very concerned about the situation unfolding”.

“That’s why Labor has already introduced legislation to make sure councillors can continue to perform their roles when facing private prosecutions.

“The minister has written to the director of public prosecutions to draw his attention to the matter and will continue to consider what steps can be taken under the Local Government Act.”