Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.
The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom is too simplistic. In addition to its clear benefits, leak-driven lawmaking carries distinctive risks, including the risk of agenda setting by third parties with specific interests and the risk associated with leaks’ capacity to trigger non-rational responses. Even where leak-driven lawmaking is beneficial overall, it is important to appreciate its distinctive downside risks, in order to best design policy responses.
This Article is the first to thoroughly examine both the important beneficial effects of tax leaks, and their risks. It provides suggestions and cautions for making and enforcing tax law, after a leak, in order to best tap into the benefits of leaks while managing their pitfalls.In P Q R v Secretary, Department of Justice and Regulation (No 1)  VSC 513 the Supreme Court of Victoria has considered an application for a suppression order under s 17 of the Open Courts Act 2013 (Vic).
The Court states
In the primary proceeding under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the applicant has applied for leave to appeal and, if it is granted, appeals against a decision of the Victorian Civil and Administrative Tribunal. That decision was to refuse to grant him a notice under s 26B(1) of the Working with Children Act 2005 (Vic) assessing him to be a person suitable to undertake child-related work. My judgment in that proceeding is to be found in PQR v Secretary, Department of Justice and Regulation (No 2). This is my determination of the application of the applicant for a suppression order under s 17 of the Open Courts Act 2013 (Vic).
The applicant was convicted of criminal charges, most recently in 2012 in relation to large-scale drug trafficking. In view of his plea of guilty and excellent prospects for rehabilitation, he was sentenced to imprisonment for six years with a minimum term of two years. He was a model prisoner and released on parole in 2014, which will end in 2018. Since being released, he has made very strong steps towards full rehabilitation. Among other things, he has undertaken study, and is undertaking further study, now at university, to become an exercise physiologist. To complete these studies, he will need to obtain a practical training placement, which will likely place him in contact with children. Thereafter he wishes to have the option of working with children in sporting and related fields. To undertake child-related work, he must apply for a working with children check and obtain an assessment notice under the Working with Children Act. When the Secretary of the Department of Justice and Regulation refused to accept that he was suitable, he applied to VCAT for a review of the Secretary’s decision. When VCAT refused that application, he appealed to this court on grounds of error of law.
For the purpose of ensuring open justice and freedom of expression, there is a fundamental principle of the common law of great antiquity that, first, proceedings in courts (and now tribunals) are presumptively open to the public and news media organisations, which includes information about the names of parties, witnesses and other persons involved and, second, that information about the proceeding can be freely communicated. Only exceptionally is it ordered otherwise. By way of such exception, both VCAT and this court have made orders that the applicant is to be known in the proceeding in both jurisdictions by a pseudonym, in this court ‘PQR’. The primary basis for the making of these orders was not that the applicant himself needed anonymity. The basis was that the applicant would be reasonably deterred from accessing justice by commencing the proceeding in VCAT and the appeal in this court if his present and former partner and her and their children were to suffer distress and embarrassment by reason of him being identified.
The Herald and Weekly Times Pty Ltd is legitimately interested in the applicant’s application in VCAT and appeal to this court because his is a case of a person with convictions for serious criminal offences, including drug-related offences, seeking to work with children and while on parole. It has published articles both in print and online about VCAT’s decision and the appeal in this court.
Although Herald and Weekly Times appears to have independently ascertained the applicant’s identity, it has not yet used his real name (or photograph) in any publication relating to the proceedings. There is dispute between the parties and Herald and Weekly Times about whether, as a matter of law, the pseudonym order in this court prevents it from doing so. The applicant contends that it probably would, and the Secretary contends that it actually would, be contempt of court for Herald and Weekly Times to do so. To the contrary, Herald and Weekly Times contends that it would not be contempt of court to do so, where it has independently discovered the applicant’s real name. To remove any doubt about the scope and effect of the pseudonym order, the applicant has applied for the suppression order.
The court’s determination of the application for the suppression order raises issues concerning the relationship between pseudonym orders and suppression orders under the Open Courts Act, the balance struck under the common law and that Act between freedom of expression and access to justice, and the obligation of news media organisations under the law of contempt not to frustrate the purpose of orders of the court that preserve the anonymity of parties, witnesses and others involved in legal proceedings. These issues are particularly important because freedom of expression and fair and public hearings before courts and tribunals are human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).The Court referred to Re Savvas, where Hunt J ordered that certain witnesses in a criminal trial would be referred to by pseudonyms and that any matter likely to lead to their identification was not to be reported by those in court. In PQR the Court states -
In the interest of keeping justice as open as possible, his Honour preferred to adopt this course rather than allowing their real names to be used subject to a non-publication order. He made it quite clear that subsequent publication of the real names would be a contempt:
If the two witnesses are addressed and referred to throughout the trial by pseudonyms, the media will not be entitled to publish their true identities as part of a fair report of court proceedings open to the public. There is no room for the inadvertent or careless use of their names in such a report. If the media wish to go beyond publishing such a report, they will be disclosing the identities of those witnesses only because they have deliberately set out to make such a disclosure. If an order has been made at the commencement of the trial that such identities should not be disclosed (even though not binding on the media), and if the media have already been warned of the reason why those names are being withheld, the inference will be clear that their disclosure was made with the intention of frustrating or interfering with that order. They will in those circumstances be guilty of contempt ...
His Honour went on to explain his purpose in making the order and its legal effect:
The difference between the situation where the real names of the witnesses are used in court and a non-publication order is made and the situation where pseudonyms are used and such an order is made may appear on the surface to be slight, but in practice the difference is significant. In the latter, any disclosure by the media must be very deliberate indeed on its part; there is no room for error. With very few exceptions, the media may be trusted to act with a due sense of responsibility in matters such as this. The courts, having done everything reasonably possible consistently with justice to keep the proceedings open to the public, must proceed upon the basis that deliberate acts designed to frustrate or interfere with the administration of justice will receive condign punishment as contempts.
Notice or knowledge is an element of the potential liability of a person under the law of contempt for engaging in conduct that frustrates the purpose of an order.