The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?

Article


Young, Simon. 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.
Article Title

The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?

ERA Journal ID36744
Article CategoryArticle
Authors
AuthorYoung, Simon
Journal TitleAustralian Journal of Administrative Law
Journal Citation27 (3), pp. 165-179
Number of Pages15
Year2020
Place of PublicationAustralia
ISSN1320-7105
Web Address (URL)http://sites.thomsonreuters.com.au/journals/category/australian-journal-of-administrative-law/
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.

Keywordsadministrative law, judicial review, project blue sky, legal evolution
Contains Sensitive ContentDoes not contain sensitive content
ANZSRC Field of Research 2020480704. Migration, asylum and refugee law
480504. Legal institutions (incl. courts and justice systems)
480701. Administrative law
Public Notes

File reproduced in accordance with the copyright policy of the publisher/author.

Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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https://research.usq.edu.au/item/q6073/the-blue-sky-effect-a-repatriation-of-judicial-review-or-a-search-for-flexibility

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