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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.
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 proceedings10 or to avoid some other relevant harm - such as, for example, undue distress or embarrassment to a victim of a sexual offence11 - 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...