Decision Makers
Three types of decision maker
exercise discretions. (i) Discretions
may be
vested in and exercised by a court. While many of the powers of courts
involve remedies that issue as of right, some involve discretions. (ii) Tribunals
are often
vested with power to hear matters where the remedy or
consequences is discretionary. (iii) Many administrative officials are vested
with power to exercise discretions.
Thus while courts sometimes exercise discretionary powers, the main wielders
are tribunals and officials. Our attention will be directed to courts but what is
said with regard to courts generally applies to discretions that are exercised by
tribunals and officials.
Structure
To explain how to define and resolve an issue of discretion it is necessary first
to explain the structure of a discretion. Like any other cause of action, a
discretion is divided into elements and consequences, However, because there
is a discretion to apply or not apply the consequences there is a special
characteristic that the ensuing analysis will both focus on and reveal. This will
be explained in two staged analysis – the first stage is a basic model while the
second stage is a developed model.
Basic Model
In the basic model we organise the rule that houses the discretion by dividing it
into elements and consequences. In our first take on this, the discretionary
power is treated as the consequences that the rule brings. To illustrate, we
return to our hypothetical example above involving the grant of a pension by
the Director of Pensions. This takes the following form:
Element (1)
There is a person.
Element (2)
The person is over the age of 18 years.
Element (3)
The person is unemployed.
Element (4)
The person has been unemployed for 6 weeks.
Consequences
The Director of Pensions may grant this person a pension.
Figure 26.1 Structure of a Discretion: Basic Model
Developed Model
Organising the discretion in the basic model is a good start, but it is possible
to reorganise it in a way that facilitates a better understanding. The key to this
is recognising what happens when the Director grants the pension. To do this
they must have formed the opinion beforehand that they should grant the
pension. Logically they should form this opinion on the basis that it is more
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