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

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

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?

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.