The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility?

Young, Simon ORCID: https://orcid.org/0000-0002-8835-7164 (2020) The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility? AIAL Forum, 2020 (98). pp. 54-69. ISSN 1322-9869

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Abstract

At the heart of the High Court’s important Project Blue Sky decision on procedural failure is a strong emphasis on specific parliamentary intent and context. It might be argued that in the succeeding years this emphasis has in various ways permeated the ongoing refinement of many other judicial review principles – relating (at least) to unreasonableness, bad faith, fraud, delegation and bias. The trend has a more complex and particularly interesting interplay with the ongoing development of principles relating to fair hearing and jurisdictional error.

This paper explores this ‘Blue Sky effect’ across a range of judicial review principles, including pauses and retreats in its course. Does this mark a committed ‘repatriation’ of judicial review grounds – in a sense returning the freestanding standards of administrative legality to the corral of grounds that have always been calibrated to statutory context? What might this mean for balances of power in the future administration of administrative law? And what might it mean for the capacity of courts to meet the many challenges of changing governmental context and maturing public expectations?


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: No
Item Status: Live Archive
Additional Information: Copyright in the forum of the articles as presented in this publication and on the AIAL and AUSTLII websites resides in the Australian Institute of Administrative Law Incorporated.
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Institute for Resilient Regions - Centre for Heritage and Culture (1 Aug 2018 -)
Date Deposited: 15 Dec 2020 23:52
Last Modified: 03 Jan 2021 23:53
Uncontrolled Keywords: administrative law, judicial review, project blue sky, legal evolution
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180120 Legal Institutions (incl. Courts and Justice Systems)
18 Law and Legal Studies > 1801 Law > 180103 Administrative Law
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4807 Public law > 480704 Migration, asylum and refugee law
48 LAW AND LEGAL STUDIES > 4805 Legal systems > 480504 Legal institutions (incl. courts and justice systems)
48 LAW AND LEGAL STUDIES > 4807 Public law > 480701 Administrative law
Socio-Economic Objectives (2008): C Society > 94 Law, Politics and Community Services > 9402 Government and Politics > 940299 Government and Politics not elsewhere classified
C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940406 Legal Processes
Socio-Economic Objectives (2020): 23 LAW, POLITICS AND COMMUNITY SERVICES > 2304 Justice and the law > 230406 Legal processes
23 LAW, POLITICS AND COMMUNITY SERVICES > 2302 Government and politics > 230299 Government and politics not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/40369

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