The Blue Sky Effect: a repatriation of judicial review 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 or a search for flexibility? Australian Journal of Administrative Law, 27 (3). pp. 165-179. ISSN 1320-7105

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Abstract

The High Court’s 1998 decision in Project Blue Sky Inc v Australian Broadcasting Authority, with its close attention to specific statutory context and purpose, has had an important influence on Australian administrative law. Not least, it appears to have led to some “repatriation” of freestanding standards of administrative legality. Yet close analysis reveals that this evolution is best understood as part of broader dynamic, namely a two-stage search for flexibility in judicial review principles – in response to changing contexts and new challenges. The first stage has seen some careful calibration of principle to statutory context, and the second a calibration to consequence (as reflected in the new “materiality” overlay in jurisdictional error doctrine). This search for flexibility builds agility into the principles but appears to come at some cost – including to the consistency, predictability and normative influence of administrative law. These evolutions, and the attending dilemmas, warrant close consideration as Australian administrative law has perhaps found itself at a new crossroads.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Accepted version deposited in accordance with the copyright policy of the publisher.
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: 22 Dec 2020 04:33
Last Modified: 03 Jan 2021 23:55
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/40370

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