Legislature cannot usurp judicial power executive is

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Legislature cannot usurp judicial power Executive is given limited power to detain individuals Tribunal cannot exercise judicial power Compare: Liyanage v R and Nicholas v R Legislature can provide rules of evidence and procedure however cannot direct the manner in which judicial power is exercised. Must be for a non- punitive purpose. Power must be incidental to another head of power . No definition of ‘judicial power’ in this context: it is chameleon in character Compare indicators from the spectrum of cases. State judicial power cannot be exercised by a Chapter III Court Most likely will require a referendum to change policy. Persona designata exception 1. No Duty of Acceptance 2. Compatibility with judicial duty a. Functional incompatibility QUALIFICATIONS: 1. Is the function integrally connected with executive or legislative functions 2. Is the function required to be performed independently of any instruction, advice or with from the executive or legislature 3. If the function must be performed independently, is there any discretion purportedly possessed by the judge exercised on political grounds. b. Public confidence is undermined
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  • Fall '09
  • Law, Separation of Powers, III Court

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