Editorial Opinion
Hepburn Shire Council has reached the point where it cannot function. Not because voters have withdrawn their mandate, and not because the state government has intervened, but because of a sequence of private legal actions that have forced sitting Councillors to stand down. This puts the ball squarely in the Minister for Local Government Paul Hamer’s court.
David Penman, the operator of a Hepburn Springs accommodation business, has previously launched private prosecutions against Councillors Don Henderson and Tony Clarke. He has now initiated further private prosecutions against Councillors Hewitt, Hockey and Cornish, which has required these Councillors to stand down. This leaves only two Councillors, and a minimum of four is required to make decisions. Council governance therefore comes to a halt.
The Wombat Post does not know what has prompted these actions and does not speculate. However, all charges laid to date are allegations only; no court has determined any of them, and the matters remain before the courts. Mr Penman is entitled to bring proceedings the law permits him to instigate. But the effect of those proceedings is to completely disrupt democratic governance for Hepburn Shire.
All of this lands on an organisation already under strain. The Chief Executive Officer has announced his resignation. Staff, who did not stand for election and cannot answer their critics, are bearing the daily weight of sustained criticism of the institution they serve. And the community is divided: many residents are distressed by the disruption to local governance; others feel the underlying grievances regarding council transparency deserve a hearing, even if the legal avenue chosen remains highly controversial.
The grievances are real and we have documented them in past articles, including mismanagement of the community hub at the Rex, community dissatisfaction with Council, and the underlying deficit and asset renewal gap in the recent budget. We are not arguing that Council should not be criticised and held to account.
It is how that should be done which is of concern.
A law that hands a veto to anyone with a charge-sheet
The mechanism doing the damage is section 229 of the Local Government Act 2020. Following amendments passed in 2024, a councillor charged with a specified offence — including any offence punishable by two or more years’ imprisonment — is automatically stood down, barred from performing the functions and duties of a councillor, until the charge is withdrawn or all proceedings, including any appeal, are finally determined.
Before the 2024 amendments, standing down a councillor required an application by the Chief Municipal Inspector to VCAT, and VCAT was required to consider the nature and circumstances of the charge first. The amendments removed both safeguards. The reform was designed for a real problem — councillors facing serious police charges continuing to sit.
However, the question of what happens when the charge comes from a private citizen, rather than a law enforcement agency, does not appear to have been carefully considered in the 2024 changes.
In Victoria, any person may commence a criminal proceeding by filing a charge-sheet. No independent assessment of the evidence is required before the charge takes effect. Combine that with automatic stand-down, and the result is extraordinary: a single individual can remove elected councillors from office for months or years — however long it takes for the case to ultimately end, whatever its merits.
That is a design flaw which applies more broadly than the current situation in Hepburn, and Parliament is about to consider fixing this problem by amending the legislation to restrict automatic stand provisions to proceedings commenced by or on behalf of a law enforcement agency. Comparable jurisdictions already scrutinise private prosecutions. Victoria should too. But it is too late to prevent the disruption of democratic governance in Hepburn.
Action is needed now
Legislative reform takes time. Hepburn Shire should have a functioning Council, and the State has tools available to ensure that is protected.
The Director of Public Prosecutions may take over private prosecutions and either continue or discontinue them — applying the same tests of reasonable prospects and public interest that govern every public prosecution. The DPP declined to intervene in the earlier matters. With further prosecutions now reportedly imminent, and with the governance of an entire shire at stake, the Director should assess these matters promptly and apply those ordinary tests. The courts retain their own powers to manage proceedings before them as well.
The Minister for Local Government, Paul Hamer, also has options in the event that the court proceedings make the Council unworkable. The Minister can appoint an interim monitor to oversee Shire operations, or ultimately appoint an administrator. This may be necessary, but it would bring democratic decision making in Hepburn to a halt because of the private prosecution stand down requirement.
Accountability belongs to the community
Which brings us to the heart of the matter. In a democracy, councils are already held to account through elections, through the Local Government Inspectorate, through councillor conduct processes, through the Ombudsman and IBAC — and through a free press and an engaged community.
The merits of a private prosecution are unknown until a court finally rules on it — which may be years away, with councillors sidelined the whole time. Whatever the intentions of anyone involved — and we make no claim about them — the combined effect of repeated prosecutions that trigger automatic stand-downs is that local democratic institutions are disrupted and disabled.
The Wombat Post understands that community members who are concerned about the governance of Hepburn Shire have begun contacting the Minister for Local Government, Paul Hamer, to express their views.
The matters referred to in this editorial involving charges against individuals are allegations only and remain before the courts.
