Outcome of investigation into complaint about Her Honour Magistrate Burnside

The Judicial Commission of Victoria (the Commission) received a complaint from the applicant in a family violence intervention order proceeding (the Complainant) about the conduct of Her Honour Magistrate Burnside (the Officer) at the Magistrates’ Court of Victoria. 

The complaint alleged (in part) that the Officer made inappropriate comments about the swinging lifestyle of the Complainant and the respondent (Part A).

The Commission investigated the complaint in accordance with the Judicial Commission of Victoria Act 2016.

During the hearing, in relation to orders sought, the Officer asked questions about the venues the Complainant did not want the respondent to attend and made comments about the parties’ age and lifestyle.

Opportunity to Respond 

The Commission gave the Officer an opportunity to respond to Part A of the complaint. 

In her response (among other things) the Officer: 

a. acknowledged that a judicial officer must always use ‘considered and carefully composed language whilst presiding’;

b. outlined a summary of the hearing from her perspective, including the relevance of her questions regarding the type of ‘events’; and 

c. accepted that she made the comments and provided further context for the comments based on her previous professional experience.

Findings and assessment

The Commission found that a reasonable person would perceive the Officer’s comments - regarding ‘sexual diseases’ and ‘maniacs’ being involved in swingers’ events - as stereotypical and offensive and found they were unnecessarily critical of the parties’ lifestyle. There was no material before the Commission to consider that the Officer’s comments served a legitimate purpose or were otherwise reasonable.

Further, judicial officers should be mindful of language when addressing parties in relation to engaging in lawful sexual activity regardless of the judicial officer’s personal views. 

However, the Commission was not satisfied that a reasonable person would perceive the Officer’s comments as victim blaming or amounting to a ‘tirade of abuse’ (as also alleged). Rather, the Commission was satisfied that a reasonable person would consider the Officer’s tone was measured, calm and professional throughout the hearing. 

Part A - Referral

The Commission referred Part A of the complaint to the Chief Magistrate (as head of jurisdiction) with the following recommendations: 

a) the Officer be counselled by the head of jurisdiction;

b) the Officer read and familiarise herself with the ‘conduct and ethics’ resources available on the Judicial College of Victoria webpage; and 

c) the Officer attends a relevant Judicial College of Victoria event within 12 months, as directed by the head of jurisdiction.

Part B - Dismissal

Part B of the Complaint alleged that the Officer failed to look at evidence submitted by the parties.

The Commission dismissed Part B of the Complaint on the basis that it did not warrant further consideration on the ground that the Officer’s conduct may have infringed the standards of conduct generally expected of judicial officers.