legally ordained for exercising the discretion (although other terms besides
criteria are used, such as objects,
661
objectives,
662
reasons,
663
matters,
664
factors,
665
and considerations
666
). Each criterion pushes for the exercise of the
discretion in one manner or another. Criteria are the currency in which net
benefit is valued and measured. They are the things that count as benefits and
costs (the items that count for and against) when a decision is made
to
exercise the discretion.
This has three aspects. First, and most fundamentally, criteria distinguish
things that are valued from things that are not valued. Things that are valued (in
the base sense of having a value put on them) count as benefits and costs and
so contribute to net benefit. Second, for legal purposes each criterion has a
weight attached to it, even though this is typically not easily measurable. For
example something may be a core or fundamental criterion on the one hand or
a minor or peripheral criterion on the other hand. Moreover, some criteria can
be present in varying degrees. For example if work experience is a criterion
(whether fundamental or incidental) it can be measured in terms of duration
and possibly also the intensity or variety of the experience involved.
This means that prior to determining and comparing the net benefit of each
option, the decision maker has to do two things. First, they have to identify the
legally relevant criteria that can possibly apply to the discretion in question.
Criteria are of three kinds –
express, implied and general. Second, it is
necessary to determine which of those legally relevant criteria apply in the facts
of the particular case.
In the analysis of a discretion proposed earlier, the discretion becomes one of
the elements of the legal rule, albeit a special element. Not surprisingly, its
subelements are the criteria according to which the discretion should be
exercised. These criteria need to be weighed to determine the best option
which, of course, is the best way in which to exercise the discretion.
661
Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at
505 per Dixon J
662
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR
314; 134 ALR 51
663
Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at
505 per Dixon J
664
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66
ALR 299 at 308 per Mason J
665
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39; 66 ALR
299 at 308-309 per Mason J
666
R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45;
27 ALR 321
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