The principle of open justice and the judicial duty to give public reasons.

• Jurisdiction: Australia
• Date: 01 December 2014
• Author: Bosland, Jason

This article explores the common law duty of courts to provide publicly available reasons for their decisions. The pre-modern position was that a failure to provide reasons did not constitute an error of law. However, the position in Australia has evolved such that the duty to provide reasons is now considered an 'incident of the judicial process' and has been recognised more recently as flowing from the principle of open justice. Against the backdrop of the emerging case law in Australia linking the duty to provide reasons with the open justice principle, this article considers when and how such a duty is to be exercised, what it might require in terms of public access to, and publication of, reasons, and the circumstances in which the publication of reasons can be withheld or subject to suppression by the courts.

CONTENTS I Introduction II The Evolution of the Legal Duty to Give Reasons A Legal Duty to Give Reasons 1 Duty as an Incident of the Right to Appeal 2 Broader Duty to Give Reasons 3 Open Justice and the Duty to Give Reasons B Exceptions to the Duty to Give Reasons III Open Justice and the Publicity of Reasons A Open Justice and the Publics Right to Access Reasons B Extent of the Duty to 'Publish' Reasons IV Derogating from the Duty to Publish Reasons V Concluding Comments I INTRODUCTION

The principle of open justice--'that justice should not only be done, but should manifestly and undoubtedly be seen to be done' (1)--is a central feature of the administration of justice under the common law. (2) The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, (3) it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. (4) Such rules include: first, that judicial proceedings are conducted, (5) and decisions pronounced, (6) in open court'; second, that evidence is communicated publicly to those present in the court; (7) and, third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media. (8) However, the rules to which the open justice principle gives rise are not absolute. (9) In circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings (10) or to avoid some other relevant harm--such as, for example, undue distress or embarrassment to a victim of a sexual offence (11)--courts can derogate from the open justice rules by ordering that proceedings be heard in closed court ('in camera' orders), that certain evidence be concealed from the public ('concealment' orders), or that the publicity given to particular proceedings be restricted ('suppression or 'non-publication orders). Despite the exceptional nature of any such measure, (12) substantial criticism in recent years has focused on the frequency with which some Australian courts make suppression orders--especially in Victoria, South Australia and, more recently, in New South Wales. (13) Indeed, in Victoria, problems identified with the number, breadth and clarity of orders has led to the recent introduction of the Open Courts Act 2013 (Vic) to tighten up the circumstances in which suppression orders can be made. Similar legislation has also been passed in New South Wales (14) and at the federal level. (15) However, what has been largely overlooked in these discussions and law reform efforts is that some Australian courts frequently engage in a particularly extreme, and, in some instances, far more hidden method of derogating from the open justice principle by suppressing or withholding the publication of the reasons for their decisions. (16) Such is the current practice adopted by superior courts in Victoria, New South Wales and Western Australia. (17)

At the time of writing, a search of the Australasian Legal Information Institute database ('AustLII') (a free online legal database of Australian judgments) (18) revealed that in Western Australia, 47 judgments of the Supreme Court and 17 of the Court of Appeal were suppressed, with one such decision going back as far as 1999. (19) Alarmingly, 24 of the suppressed judgments were handed down in 2013 alone. The AustLII entry for each suppressed judgment contains only the standard case name 'Judgment Suppressed', the courts medium neutral citation and the date of the decision. There is no indication as to the nature of the proceeding, the reasons for suppression, or the identity of the presiding judge. Likewise, judicial reasons are often subject to suppression in New South Wales. At the time of writing, a search of AustLII revealed that nine judgments were suppressed in New South Wales: five Supreme Court judgments, two Court of Criminal Appeal judgments and two District Court judgments. One such judgment from the Court of Criminal Appeal was originally handed down in 1999. (20) Again, consistent with the practice in Western Australia, each suppressed decision contains only the case name 'Decision Restricted', the court's medium neutral citation and the decision date, and there is no indication as to the subject matter of the cases. However, unlike in Western Australia, it appears that the name of the presiding judge is always disclosed.

In Victoria, the suppression of judgments is much more secretive. This is because no record enters the public domain (for example, on AustLII) to indicate that a decision has been suppressed or withheld. The usual practice is that all judgments of the Supreme Court of Victoria and the Court of Appeal are sent to the Supreme Court Library, with the Library then forwarding them to AustLII. But a judgment will not be forwarded to AustLII if, consistently with guidelines published by the Supreme Court, the medium neutral citation number is followed by one of the following letters: 'R' (where access to the judgment is restricted); 'W' (where a judgment is withheld); 'P' (where a judgment is permanently restricted); or T (where a judgment is temporarily restricted). (21) The Library simply holds onto the judgment until the Court lifts the embargo on publication. There is no public information as to the number of judgments currently designated as 'restricted access', nor is there any information as to the nature of the cases where publication of reasons is currently restricted.

Against the backdrop of the practice just described, this article considers the duty of courts to provide public statements of reasons for their decisions as a requirement of the principle of open justice. It does this by examining the open justice principle as it relates to three issues: the duty to give reasons; the duty to give public reasons; and the circumstances in which a court can suppress or withhold the publication of its reasons. Part II considers the duty of courts to give reasons. In pre-modern times, the failure to pronounce reasons, even to the parties themselves, did not constitute an error of law. (22) Nor was the giving of, or failure to give, reasons seen as engaging the open justice principle. However, the position in Australia, as in most other common law countries, has evolved. As outlined in Part II, the development of the duty to provide reasons is such that it is now seen not only as an 'incident of the judicial process' (23) but also by some courts as an expression of the open justice principle. (24) Consequently, it is argued that an additional rule based on the open justice principle--the 'public reasons rule', as we have called it--appears to have emerged in the case law, which imposes an obligation on courts to give public reasons for all but minor interlocutory decisions. (25) The rule, however, is in nascent form and is far from universally accepted.

A number of uncertain consequences flow from this important but largely unacknowledged development. As explored in Part III, the recognition that the open justice principle imposes an obligation on courts to provide reasons suggests that such reasons must be public. But what is required in terms of publicity of reasons under the public reasons rule remains unclear and has not yet been the subject of determination by the courts. Part III considers whether the publicity requirement of the rule should go further than simply requiring courts to pronounce reasons in open court. First, it considers whether it should also be seen as establishing a non-party right of access to reasons upon request and, second, whether it should be understood to impose further positive obligations on courts in relation to the broader publication of their reasons to the public. Part IV explores when and how courts can depart from the public reasons rule by suppressing or withholding the publication of their reasons. It is argued that any decision to derogate from the publicity requirement imposed by the rule--like derogations from the other open justice rules discussed above--should be subject to the strict test of necessity. Furthermore, it is argued that the application of the necessity test will rarely justify the suppression or withholding of reasons in their entirety. Nevertheless, on the basis of the limited information that is available, it appears that the approach of the courts to the suppression or withholding of entire reasons has been inconsistent and there is evidence that it has been undertaken in circumstances where it does not meet the requirements of the necessity test. Part V provides some concluding comments regarding s 16 of the Open Courts Act 2013 (Vic), which purports to reinforce the existing common law duty of courts in Victoria to provide public reasons, and suggests, albeit briefly and in very general terms, what matters would need to be addressed if the duty to give public reasons were to be put on a more robust statutory footing.

II THE EVOLUTION OF THE LEGAL DUTY TO GIVE REASONS

It is entrenched as 'both the norm and the ideal' (26) of the...