Criterion 1P
Criterion 1D
Criterion 2P
Criterion 2D
Criterion nP
Criterion nD
Criteria 1P-nP represent the criteria alleged by the plaintiff while the defendant
says that these criteria are constituted by Criteria 1D-nD. There are two
possibilities. First, the parties may actually agree on the criteria. In this case
Criteria 1P-nP and Criteria 1D-nD are identical. Second, the parties disagree
on criteria. To the extent that there is a disagreement the court must decide the
correct view of the law relating to the criteria for the particular decision.
Express Criteria
Express or stated criteria are criteria for exercising a discretion which are
specifically stated in an Act. For example, a statute says: “The Commissioner
may issue a licence and in doing so shall take into account whether the
applicant is a fit and proper person to hold the licence.”
Direction to Use Criteria
Where a statute states criteria for making a decision, it will in some way direct
the decision maker to use the designated criteria. A common phrase is that the
decision maker “shall have regard to” certain criteria. This requires the
decision maker to take the stipulated matters into account and give them
weight as fundamental elements in making the decision.
669
Breadth of Criteria
Stated criteria may be widely drawn or narrowly drawn. In general, the more
widely drawn is a criterion the less specific is the direction it gives to a
decision maker.
Exhaustive and Non-Exhaustive Criteria
Stated criteria may be exhaustive or may merely be some criteria to be taken
into account.
670
If they are just some of the criteria the other criteria will be
stated elsewhere or implied. Whether criteria are exhaustive or just some of the
possibilities criteria is determined by two things.
It may be determined by the phrase which imports them, ie directs that they be
used. This may be explicit. For example, a provision might say that the
decision maker
“can have regard to and can only have regard to” the criteria.
This indicates that the criteria are exhaustive. On the other hand the phrase
which is very commonly used, that the decision maker “shall have regard to”
669
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
670
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299
at 309 per Mason J
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