Who said justice must be seen to be done

If a narrow view is taken that the duty to provide public reasons is satisfied merely by stating reasons in open court, then it might be concluded that there is no ongoing public right of access to the written version of such reasons. On this analysis, rather, such a right could only arise in relation to written reasons not read out in court — that is, where reasons have not been disclosed to the public at all.

But accepting such a narrow approach would lead to the perverse result that unread written reasons would be subject to an ongoing right of public access, while verbal reasons or written reasons previously read out in open court would be made available to the public only on a once and for all basis. This is neither logical nor consistent with the rationales that underpin the open justice principle or, indeed, the public reasons rule.

Recognising such a right of access draws support, by way of analogy, from the similar right that has already been recognised in relation to court orders. It has been held that court orders — unlike pleadings, evidence and other documents held on the court file — are public documents that any member of the public has a common law right to inspect but not copy.

It should be noted that access to written reasons referred to but not read out in open court might be pursued under an alternative argument based on the open court rule rather than the public reasons rule.

Some courts, on the other hand, have taken the contrary view that a court is not effectively closed just because a document for example, an affidavit or a hand-up brief is relied upon but not read out in open court.

What does publication in this context mean? Will it be sufficient — as a traditional understanding of open justice would suggest — for a court to orally pronounce its reasons in open court or, as discussed above, to provide access to reasons upon request? Or, is it being used to indicate a broader obligation to disseminate reasons to the public in accessible form — for example, via a dedicated website such as AustLII or in official law reports? And, if the latter, what might such an obligation to publish require?

Moreover, by failing to make any reference to the open justice principle, the Court did not appear to treat such a decision as raising open justice issues or as constituting any derogation from the public reasons rule. Convincing arguments, however, can be made to support the view that the duty to publish reasons under the public reasons rule must be understood in the broader sense. The public dissemination of reasons, whether by the court itself or by others, must be seen as either falling within the scope of the open justice principle or not.

This means that when deciding whether or not to withhold its reasons from publication to the public once a decision has been handed down, a court must be satisfied that the necessity test is met and, if it is not so met, the reasons for the decision must be published.

More to the point, it follows that the failure to effect such publication in the absence of necessity must be understood as constituting an error of law. However, apart from this apparent inconsistency, recognising a duty to publish reasons in the broader sense is also essential to achieving many of the functions said to be performed by the provision of public reasons outlined in Part II above.

This is because publication in the narrow sense — merely pronouncing reasons in open court and providing access to reasons upon request — will not always be sufficient in facilitating public access.

For example, a member of the legal profession or the public interested in obtaining access to reasons on a particular topic or area of law will need to be aware that the reasons exist and what they are about before an application for access can be made; otherwise, how will he or she know what reasons to apply for? Thus, genuine public access can only be achieved through the broader publication of the reasons themselves.

And, while pronouncing reasons in open court and the provision of fair and accurate reports of cases, particularly by the media, might assist in some instances in the identification of reasons of interest, very few members of the public attend legal proceedings and only a small proportion of all legal proceedings receive coverage in the media. If we are correct in suggesting that the legal duty to publish should be understood in the broader sense, this then raises the question as to what will be required to fulfill the duty.

The precise means of publication is probably a matter best determined by the courts themselves. However, we suggest that the central criterion to fulfilling the duty should be that written reasons and transcribed ex tempore reasons [] be published to the public in an accessible manner and form, and in a location known to members of the legal profession within the jurisdiction as the repository for judicial reasons.

Parts II and III of this article have identified the open justice public reasons rule as imposing a duty on courts to provide reasons for the making of final and important interlocutory decisions and have argued that such a rule should be understood as requiring the publication of reasons in the broad sense.

As an open justice rule, it follows that any derogation from the duty to publish reasons by the making of a suppression order must be subject to the same principles that apply to derogations from the conventional open justice rules. Other courts have implicitly adopted this approach by treating the open justice principle as being engaged by the suppression of reasons.

Moreover, as noted above in Part III, the courts have evinced a degree of inconsistency by treating the withholding of the publication of reasons as opposed to the suppression of reasons as a non-judicial decision not subject to the principle of open justice. If, however, it is accepted that the public reasons rule requires the publication of reasons, this distinction cannot be maintained. As argued above, both the suppression and withholding of reasons should be treated as derogating from the public reasons rule.

Furthermore, both should be characterised as an exercise of judicial power and, as such, both contrary to current practice should require the making of a court order. The overarching principle under the common law is that the open justice rules can only be departed from in circumstances where it is necessary to secure the proper administration of justice, [] either in the proceedings before the court [] or as an ongoing process.

Applying these principles to derogations from the open reasons rule, courts will only have the power to order the suppression of reasons in circumstances falling within one of the recognised categories of exceptions either under the common law or statute and, importantly, the court must not withhold from the public aspects of judicial reasons beyond what is necessary in the circumstances.

Rather, it is incumbent upon a court, if possible, to draft reasons in such a manner as to provide an account of the reasoning without incorporating the confidential, sensitive or prejudicial information. The strict application of the necessity test means that only rarely will a court be justified in ordering the complete suppression of its reasons and can only do so as a last resort. In that case, the respondent plaintiff, a car manufacturer, sought an interlocutory injunction to restrain the appellant defendant from publishing confidential information relating to a new motor vehicle.

However, as evidenced by the data presented in the introduction, courts in Victoria, Western Australia and New South Wales have taken the view that it is, at least at times, necessary to withhold publication or to order the suppression of entire reasons. A court may consider that it is impossible to draft reasons without including the confidential or sensitive information, yet the redaction of the information results in reasons that are unintelligible.

Such a problem with redacted reasons, however, is only likely to arise in relation to judgments that have been written or published and only later require redaction. Alternatively, it may be that courts are in the practice of suppressing or withholding from publication entire reasons in circumstances that cannot be justified. Just prior to the empanelment of the jury in the murder trial, a further order was made directing specified online news organisations to remove all historical internet news articles containing any reference to Mokbel.

The news organisations appealed that order. During the intervening period, however, the public and, perhaps more importantly, lawyers were deprived of knowledge of the important legal development recognised in the case.

In our opinion, the reasons in News Digital Media could easily have been published. The case involved an appeal by the defendant for her conviction on a series of sex offences.

The reasons were removed from AustLII on the basis that identifying the defendant would enable the identification of the victim.

It is impossible to know whether the approach in News Digital Media was the result of the Court of Appeal exercising an overabundance of caution or whether the Court had considered anonymisation and redaction and, if so, whether there was a genuine belief that redacted reasons could not be produced. This is not only because the reasons themselves are unavailable, but also due to the general lack of public explanation by the courts.

While courts will often but not always give reasons for making suppression orders prohibiting the publication of, for example, the identity of one or more of the parties or certain aspects of proceedings, especially where such orders are made following a contested hearing, the same cannot be said of suppression orders to restrict the publication of reasons. However, even in the few instances where courts have provided such reasons, [] they are not always made public until after all suppression orders in a case have been lifted.

As this article has outlined, courts are required to provide public reasons for their decisions and, as explained by French CJ in Hogan v Hinch , this extends to reasons for the making of suppression orders.

In tracing the development of the legal duty to give reasons, this article has suggested the emergence in Australia of a new open justice rule: the rule that judges must give public reasons for final and important interlocutory decisions.

While the High Court has explicitly recognised the relationship between the duty to give reasons and the open justice principle, the existence of the public reasons rule — which has only been explicitly acknowledged by a handful of courts and, even then, not by that precise name — has not received widespread acknowledgement. Moreover, the consequences of its recognition under the common law are both complex and uncertain.

As explored in Parts II and III, there are unresolved questions about the extent of the duty and the exceptions to it, whether the public has a right of access to reasons as a corollary of the duty, and what degree of publicity might be required. The discussion in Part IV also suggests a level of inconsistent treatment regarding the suppression of reasons. Given the central importance of both reasons and the open justice principle to the exercise of judicial power according to the rule of law, it seems unsatisfactory that such fundamental aspects of the judicial process have been left to prolonged and tentative gestation under the common law.

Indeed, it is perhaps even more unsatisfactory that many uncertainties continue regarding the scope and content of the duty. The obvious solution, of course, is statutory intervention. Section 16 of the Open Courts Act Vic , referred to in the introduction, touches on the duty to give reasons. It provides:.

The Explanatory Memorandum states that the aim of the provision is to reinforce the existing common law duty, as recognised by the High Court in Wainohu , to provide public reasons for final and important interlocutory decisions. The problem with s 16 , however, is that it relies on the common law duty but does not attempt to define the duty itself; nor does it expressly set out the relationship between reasons and the open justice principle. This is unfortunate in light of the uncertainties of the developing jurisprudence set out in the present article.

In order to achieve greater certainty and clarity regarding the duty to give public reasons, any attempt to put the duty on a statutory basis must go beyond simply referencing the common law. Rather, it must address the uncertainties of the common law. Moreover, those uncertainties should be resolved in the manner argued for in the present article.

Thus, such a statutory obligation should acknowledge that the duty to give public reasons is an aspect of the open justice principle and comes into play whenever judicial power is being exercised. The duty should require that all decisions other than minor interlocutory decisions be accompanied by reasons and that failure to provide such reasons will constitute an error of law. It should also be made clear that the power to derogate from the duty to provide public reasons is subject to the same principles that govern the open court rule.

As such, the suppression of reasons including their withholding will only be permitted in very limited circumstances of necessity and, even then, only to the extent that it is necessary to avoid the relevant harm.

Under the strict application of this test, reasons will only be suppressed in their entirety in very rare circumstances. In addition, the statutory obligation should also require that any decision to withhold or suppress judicial reasons whether in whole or in part be made only pursuant to court order, [] and make it clear that such a decision is an exercise of judicial power rather than a matter of internal judicial administration.

The constitutional significance of the principle was first recognised by Lord Shaw in Scott v Scott [] AC , —5. The reasons in Judgment Suppressed [] WASCA 29 24 May have also been withheld from publication, not because there is a suppression order in place, but because publication of unredacted reasons would potentially breach or result in the breach of other laws.

It must be such that they can find out what it is and act on it. See also Chief Justice Gleeson, above n 29 , —4. See also Selvanayagam v University of West Indies [] 1 WLR , , where Lord Scarman, delivering the advice of the Privy Council, suggested that a trial judge did not need to make explicit findings in relation to each disputed piece of evidence. Rather, it was sufficient to state the final decision.

Mere failure of a trial judge to give reasons, in the absence of any statutory or common law obligation to give them, does not raise a question of law.

There is no such statutory obligation The desirability of giving reasons is unquestionable. See also Taggart, above n 27 , 1— The first observation I will make upon that case is that there are no reasons given for the decision. When one obeys the letter of the law but not the spirit, one is following the literal interpretation of the words as is written, but not the actual intent. The reason is, rules are amoral constructs that are meant to serve a social function whereas the objective behind them serves a higher purpose: values.

It is twice blest: It blesseth him that gives and him that takes. Or take Duryodhana who in the Mahabharata ordered his brother to disrobe Draupadi. Karna also calling her a prostitute was not exactly wrong, as according to the scriptures, any woman marrying or begetting children to more than four husbands was considered a prostitute.

Yes, they were definitely not in the wrong even though we all recognise they were. Accept Reject. Update Consent. Facebook Twitter Linkedin Email.