LAW 1504 Lecture Notes - Lecture 3: Huddart Parker, Society Of Experimental Test Pilots, Navigation Acts
23 May 2018
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Defining Judicial Power
Process of determining whether or not judicial or executive power is being exercised.
1. To which body is the power given? (Executive/ legislative/ court)
2. Rule that governs… bodies. (Boilermakers/ Brandy)
3. Identify indicia- how many are present? Is the power judicial?
4. Apply the Boilermakers limbs to determine if the power is validly given
SETP 1: The issue is whether or not… (an executive body is exercising judicial power.) In accordance with the
(first/ second) limb of Boilermakers…
STEP 2: RULE: Boilermakers –
First Limb If the Q does not mention court/judges with s 72 tenure- executive body- cannot be vested
with judicial power
- The judicial power of the Commonwealth can only be vested in a Ch III court (including State
courts vested with federal judicial power under s 77(iii)).
o Only a Ch III court can exercise judicial power
o Includes state courts vested with federal JP
o Includes- Federal Court of Australia
Second Limb (If the Q mentions Court- court- cannot be give a non-judicial function)
- A federal Ch III court cannot be invested with anything other than federal judicial power
o Except for those additional powers which were strictly incidental to its functioning as a court (making court rules- not
judicial power, but is incidental to it- makes the function of the court possible)
STEP 3: INDICIA: Is the power judicial?
In order to identify whether the power is judicial, it is necessary to determine which indicia of judicial power are
present. ‘Difficulty arises in attempting to formulate a comprehensive definition of judicial power…it is hard to
point to any essential or constant characteristic’ (Brandy v Human Rights and Equal Opportunities Commission)
1. Power derived
from sovereign
authority
(Huddart Parker
& Co v
Moorehead)
Body making decision must have the power to do so by an actual law of parliament
Jurisdiction may not emanate from sovereign, but from an agreement founded between
the parties (bob suing jane) (judicial power does is exercised independently of the consent
of the person against whom the proceedings are brought)
2. A controversy
about existing
legal rights and
duties: ‘matter’
No matter in the facts (just hypothetical) no JP
Must resolve through application of the relevant law- Cannot create new rights for the
future (Luton v Lessels)
ss 75/ 76 Aust. Const. High Court has Original/ additional Jurisdiction in all matters.
o The court is a passive institution. They do not actively seek disputes (Alexander
Hamilton).
o must be called upon to take action (Huddart v Parker).
o Court cannot make a declaration of the law divorced from any attempt to
administer that law’(re Judiciary and Navigation Acts)
3. Inter Partes
The decision of the court will be reached with the parties present. They need to be
represented before the court and their submissions to the court must be heard
Assume if ‘ex parte’ not mentioned
4. Ascertainment
of law as it is
Application of (statute/ law)
5. Determination
of facts as they
truly are
May determine a breach/ guilt
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