‘Good administration’ and the ‘Good’: The normative foundation for the protection of legitimate expectations

An idea that has gained significant traction in both case law and academic commentary as a justification for the protection of legitimate expectations is the concept of ‘good administration’. Going beyond the usual criticisms of the concept’s ambiguity, this article aims to highlight an additional set of difficulties with the invocation of ‘good administration’ as the normative justification for the doctrine. This article’s central argument is that the concept of ‘good’ invoked by the idea of ‘good administration’ inevitably falls to be substantiated by a particular conception of what the ‘good’ requires as a matter of political philosophy. And given that there are multiple competing conceptions of what ‘good’ law and government are, this magnifies the challenges of coming to a landing on the precise content of ‘good administration’. This article will illustrate that the various formulations of the normative foundation of the doctrine track closely with four different conceptions of ‘good’ law and government and will explore the implications of this diagnosis for the formulation of the proper justification for the protection of legitimate expectations.

Warrantless searches of a mobile phone’s digital contents and privacy interests in Hong Kong

This case note examines the latest development on the police’s power to search the digital contents of an arrested person’s mobile phone without a warrant in Sham Wing Kan v Commissioner of Police [2020] HKCA 186; [2020] 2 HKLRD 529. Two issues will be discussed. First, the Court of Appeal’s approach to American and Canadian law in this area will be critically analysed. Second, the safeguards proposed by the Court for a police officer’s warrantless search of the digital contents on a mobile phone will be evaluated. It argues that the Court’s erroneous interpretation of foreign law on the police’s power to search the digital contents on a mobile phone has contributed to the inadequacy of the safeguards proposed by the Court vis-à-vis an arrestee’s privacy rights under the Hong Kong Basic Law and the Hong Kong Bill of Rights.

Counterterrorism legislation and far-right terrorism in Australia and the United Kingdom

Over the past two decades, since the 9/11 terrorist attacks on the United States, a number of countries have enacted new laws tailored specifically to the threat posed by Islamic extremist terrorism. This includes recent legislation that has criminalised behaviour associated with ‘foreign terrorist fighters’, such as the act of travel to, or fighting in, foreign conflicts. This legislative response reflects the enactment of earlier laws, with measures designed for prior iterations of the contemporary Islamic extremist terrorist threat, such as control orders and preventative detention orders, prohibitions on extremist speech and disseminating terrorist propganda and the criminalisation of terrorist training. Yet despite the focus on Islamic extremist terrorism, this is not the only terrorist threat that Western democracies face. The rise of far-right terrorism in recent years has, however, not seen the same recourse to new legislation as has been the case for Islamic extremist terrorism. Using Australia and the United Kingdom as case studies, this article assesses the extent to which counterterrorism legislation has been used to deal with the particular threat posed by far-right terrorism. In doing so, it evaluates the lessons that might be learned from applying counterterrorism legislation designed for one particular terrorist threat to other types of terrorism.

Countering terrorism or criminalizing curiosity? The troubled history of UK responses to right-wing and other extremism

The growth of right-wing extremism, especially where it segues into hate crime and terrorism, poses new challenges for governments, not least because its perpetrators are typically lone actors, often radicalized online. The United Kingdom has struggled to define, tackle or legitimate against extremism, though it already has an extensive array of terrorism-related offences that target expression, encouragement, publication and possession of terrorist material. In 2019, the United Kingdom went further to make viewing terrorist-related material online on a single occasion a crime carrying a 15-year maximum sentence. This article considers whether UK responses to extremism, particularly those that target non-violent extremism, are necessary, proportionate, effective and compliant with fundamental rights. It explores whether criminalizing the curiosity of those who explore radical political ideas constitutes legitimate criminalization or overextends state power and risks chilling effects on freedom of speech, association, academic freedom, journalistic enquiry and informed public debate—all of which are the lifeblood of a liberal democracy.

Law’s response to New Zealand’s ‘darkest of days’

This article discusses various aspects of the New Zealand legal system’s response to the 15 March Christchurch mosques attack. It also considers New Zealand’s response to the attack from the perspective of the academic literature on the policymaking process and argues that the response to date has been modest and cannot be characterised as a knee-jerk reaction.

Violent crime, hate speech or terrorism? How Canada views and prosecutes far-right extremism (2001–2019)

Fifty-six individuals were charged with terrorism between December 2001 when Canada first enacted its antiterrorism criminal offences and December 2019. Not a single such individual was associated with a far-right group or espoused a far-right ideology. Over the same period of time, Canada saw a rise in far-right violence and crime, including several deadly attacks that raised the spectre of terrorism. This article seeks to identify why terrorism has not been associated with the activities of those on the far right, how Canada has prosecuted far-right violence if not for terrorism and what the implications are for Canada’s criminal prosecutions going forward. It finds that since December 2001 all publicly reported hate speech cases and cases where an individual’s sentence was aggravated for hate have involved individuals espousing far-right rhetoric; likewise, all but one case where the media raised the spectre of terrorism but no such charge ensued can be described as being motivated by far-right ideation. In the result, Canadian law punishes more seriously Al-Qaida (AQ)-inspired extremism than far-right extremism, while stigmatizing the former more than the latter. The time has thus come to tackle head-on the concept of ideology in Canadian criminal law, and how the law treats various ideologies.

Counterterrorism and the challenges of terrorism from the far right

This article examines how post-9/11 counterterrorism has often not been applied to far-right terrorism. Discriminatory double standards in counterterrorism should not be tolerated. Nevertheless, the answer is not simply to ratchet up counterterrorism to apply to the far-right. The legitimate desire for symbolic equality should not blind us to the underlying weaknesses of many of those instruments both in preventing terrorism and in respecting rights. In some cases, such as the United Nation’s regime of individual sanctions related to financing and travel of those associated with al Qaeda and Daesh, application to the far-right is not legally possible. It will be suggested in this article that far-right terrorism should be used as an opportunity to re-evaluate the effectiveness and propriety of all counterterrorism. A preliminary assessment suggests that counterterrorism tied to international or national proscription may not be effective (both generally and specifically in relation to the far-right). More difficult cases involve whether terrorism offences and offences targeting speech should be applied against all forms of terrorism. Interventions regulating items and material on the Internet used by terrorists and programs to counter violent extremism and to rehabilitate offenders may be promising in addressing both far-right and Daesh-inspired terrorism. Both New Zealand’s increased regulation of guns and the Christchurch calls for greater regulation of the Internet follow these more promising strategies.

Using data to design and monitor sentencing guidelines: The case of Ireland

There is a growing trend across common law jurisdictions towards more structured sentencing processes. Many have implemented some form of sentencing guidelines in recent years; others are designing or considering introducing them. This article focuses on Ireland, a jurisdiction that has recently legislated for sentencing guidelines but does not have sufficient sentencing data available to inform key decisions on guideline design and implementation. It highlights the importance of sentencing data for guideline development and outlines how the lack of data on current sentencing trends and outcomes means that there is no frame of reference for current practice against which to design guidelines, nor assess their likely impact or gauge their effectiveness once introduced. The article examines the types of data that are needed to develop and monitor sentencing guidelines and sets out how they might be collected and analysed in Ireland. The Irish example serves as a case study for other jurisdictions with respect to the importance of sentencing data and the need to ensure that such data are available prior to the introduction of sentencing guidelines.

The slow death of a dogma? The prohibition of legislative history in the 20th century

It is commonly believed that the rule prohibiting reliance on legislative history as an aid to statutory interpretation was firmly in place in the United Kingdom, and indeed throughout the English-speaking common law jurisdictions of the world, long before the turn of the 20th century; and that the rule was set aside in the case of Pepper v Hart in 1992. However, an examination of the relevant cases and the canonical textbooks by Maxwell and Craies reveal that the rule was subject to a significant amount of disagreement at the turn of the 20th century, particularly with respect to the admissibility of commissioners’ reports to uncover the mischief of a statutory provision. This disagreement would not be completely resolved until the 1960s. With respect to other types of legislative history, there were prominent exceptional cases over the course of the 20th century; and there was a gradual acceptance of more types of legislative history as aids to statutory interpretation during the decades leading up to Pepper v Hart. Thus, the simple narrative description that the rule was firmly in place until it was set aside in 1992 must give way to a more complex narrative of disagreement and gradual decline. Meanwhile, as the rule lost traction in the United Kingdom over the course of the 20th century, a growing accumulation of justifications for the rule has been assembled, and an ongoing debate has been taking place about the efficacy of reliance on legislative history. Based upon the different trajectories followed in other English-speaking common law jurisdictions, and particularly the United States, the decline of the rule was not inevitable. It follows that the current state of affairs is likely to change over time.

The Crypto-Wars myth: The reality of state access to encrypted communications

This article draws on four state studies to address a myth of the contemporary debate on internet communications: that, in the face of an internet ‘going dark’, states face a choice between absolute privacy and unfettered access to data. The legal powers which already exist suggest that certain states have a range of possible means of access to encrypted data. The lack of awareness over these powers may be because, despite public debate, democratic oversight remains deficient, while judiciaries and other institutions play useful but limited roles. The cross-territorial nature of the internet presents regulatory challenges and opportunities for reform—albeit in an environment in which the myth of Crypto-Wars is far from useful.