A Victorian magistrate has been formally disciplined by the state’s judicial conduct body after remarks she made from the bench — describing people who attend swingers’ events as “playing with fire” — were found to reflect inappropriate stereotyping. The Judicial Commission of Victoria recommended Magistrate Carolyn Burnside be counselled following a complaint about the comments, made during proceedings in which the lifestyle choices of a party were, at best, tangentially relevant.
What was said — and why it matters #
According to findings published by the Judicial Commission of Victoria, Magistrate Burnside made the remarks during proceedings before her court. VCN understands the comments amounted to a characterisation that people who participate in consensual adult social events of a sexual nature were, in effect, taking a risk that invited adverse consequences — a line of reasoning the Commission found to be both stereotyping and inconsistent with the standard of conduct expected of a judicial officer.
The Commission’s findings, which are publicly available, do not suggest Magistrate Burnside’s remarks influenced the outcome of the case before her. However, the watchdog determined the language was sufficiently problematic to warrant formal intervention. The recommended sanction — counselling — sits at the lower end of the disciplinary spectrum available to the Commission, but the publication of the finding itself is significant: it places the conduct on the public record and signals to the Victorian judiciary that casual moralising from the bench will not go unexamined.
Who investigates judicial conduct in Victoria? #
The Judicial Commission of Victoria was established under the Judicial Commission of Victoria Act 2016 and began operations in 2017. It is the body responsible for receiving, assessing and investigating complaints about the conduct of Victorian judicial officers — from magistrates all the way through to judges of the Court of Appeal.
The Commission does not have the power to remove a judicial officer from office; that power rests ultimately with the Victorian Parliament. What it can do, however, is recommend a range of responses: from taking no action, to counselling, to formal cautioning, to — in the most serious cases — recommending to the Attorney-General that a question of removal be referred to Parliament. The Commission also plays an important educative role, publishing guidelines and summaries of findings that inform how judicial officers are expected to conduct themselves.
Complaints to the Commission can come from members of the public, legal practitioners, or be initiated by the Commission itself. Since its establishment, the Commission has handled hundreds of complaints, though relatively few result in public findings. The publication of a finding against Magistrate Burnside is therefore not routine — it reflects a determination by the Commission that the matter warranted transparency.
Stereotyping from the bench: why the judiciary is held to a higher standard #
The concern at the heart of this matter is not simply one of poor word choice. When a judicial officer makes sweeping generalisations about people based on their lawful private conduct — particularly conduct related to sexuality or relationships — it raises a deeper question about whether those parties, or others in similar circumstances who appear before that officer, can expect impartial treatment.
Victorian courts operate under a principle of procedural fairness that requires not only that a judge or magistrate be impartial, but that they appear to be impartial. The common law test, affirmed repeatedly by the High Court of Australia, is whether a fair-minded lay observer, knowing the circumstances, might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question. Remarks that suggest a moral hierarchy among lawful lifestyle choices — particularly where those choices involve sexuality — risk failing that test.
Victoria’s Equal Opportunity Act 2010 and the Charter of Human Rights and Responsibilities Act 2006 both reinforce that individuals are entitled to live free from discrimination based on characteristics including sexual activity. While those statutes do not directly govern judicial conduct in the way the Judicial Commission Act does, they form part of the legal and cultural framework within which Victorian courts are expected to operate. A magistrate who signals from the bench that consensual adult sexual behaviour is inherently reckless or morally compromised may, even unintentionally, undermine confidence that those individuals will receive a fair hearing.
The ‘playing with fire’ framing — a closer look #
The phrase attributed to Magistrate Burnside — that attendees at swingers’ events were “playing with fire” — carries an implicit causal logic: that something bad that happens to such a person is, at least partly, a consequence they invited. Legal scholars and equality advocates recognise this as a form of victim-adjacent reasoning that has historically been deployed, often with damaging effect, in sexual offence cases and family violence matters.
It is worth being clear about what is and is not alleged here. The Commission’s finding does not suggest Magistrate Burnside made her comments in the context of a sexual offence proceeding, nor that she applied the reasoning to a finding of fact in a way that disadvantaged a party. The concern is about the remarks themselves — what they communicate about the magistrate’s assumptions — and whether language of that kind has any place in judicial proceedings at all.
The answer, the Commission has effectively said, is no.
What happens now #
Magistrate Burnside remains on the bench. A counselling recommendation under the Commission’s framework is intended to be remedial rather than punitive — its purpose is to assist the judicial officer to reflect on and improve their conduct, not to end their career. VCN is not suggesting Magistrate Burnside’s overall record on the bench is characterised by conduct of this kind; the Commission’s finding relates to the specific remarks identified in the complaint.
The Commission’s decision to publish the finding, however, means the matter is now part of the public record of Victorian judicial conduct. That transparency is itself a function of the Commission’s accountability role — Victorians who appear before magistrates have a legitimate interest in knowing when, and how, those magistrates have been called to account.
VCN has sought comment from Magistrate Burnside’s chambers and from the Magistrates’ Court of Victoria. We will update this story if responses are received.
Broader context: judicial conduct complaints in Victoria #
The Burnside matter arrives at a time of broader public scrutiny of judicial culture in Australia. The Australian Law Reform Commission’s 2021 report Without Fear or Favour: Judicial Impartiality and the Law on Bias examined in detail the ways in which unconscious assumptions — including those relating to gender, sexuality, and lifestyle — can infiltrate judicial decision-making. That report, while focused on federal courts, has informed debates about judicial education and accountability at the state level as well.
In Victoria, the Commission has over recent years published findings touching on inappropriate comments, delays, and discourtesy. The pattern of published findings suggests an institution increasingly willing to use transparency as a tool — both to hold individual officers accountable and to signal, more broadly, what the community is entitled to expect from those who exercise judicial power in its name.
Attending a swingers’ event is lawful. Consensual adult sexual activity, in whatever form it takes between adults, is not a matter for moral commentary from Victoria’s courts. The Judicial Commission’s finding in this matter is a reminder that the bench is not a pulpit — and that when judicial officers treat it as one, there are now mechanisms in place to say so publicly.
The Judicial Commission of Victoria’s published findings are available at judicialcommission.vic.gov.au. Complaints about judicial conduct can be made directly to the Commission.
If anything raised in this article has affected you, confidential support is available around the clock. Crime Stoppers: 1800 333 000. 1800RESPECT: 1800 737 732. Safe Steps (family violence): 1800 015 188. Sexual Assault Crisis Line: 1800 806 292. Lifeline: 13 11 14. Beyond Blue: 1300 22 4636. 13YARN (First Nations crisis support): 13 92 76.
