the stated criteria, does not logically decide the matter. At face value, it merely
says that the decision maker must consider the criteria but does not indicate
whether they are exhaustive. When there is no guiding phrase the court’s
assessment of the nature and function of the criteria will determine the matter.
A court has to look at the nature and function of the criteria themselves, and at
the overall context to make a judgment as to whether these criteria are
exhaustive.
671
Obligatory and Permissive Criteria
There is a distinction between
criteria that a decision maker is required to
consider and those that they are allowed but not required to consider.
672
All
relevant criteria are permissive. The decision maker may take them into
account without being subject to review for taking irrelevant
criteria into
account.
Some criteria, however, are not only permissive but also obligatory. Where
criteria are obligatory, failure to heed them is ultra vires. Criteria can be
obligatory because some provision indicates that they are obligatory, eg the
statute provides that the stated criteria “must be pursued” by the official in the
administration of the statute,
673
that the official is “bound”
674
to take the criteria
into account, or that the decision maker “ought to have regard to” the
criteria.
675
Where there are no such express indicators, it is necessary to look
at the surrounding provisions in the Act to determine the question by
implication.
676
Interpretation of Criteria
Stated criteria, being words, may raise problems of interpretation. While
stating the criteria makes it clear what the criteria are, it is not necessarily clear
what they mean. Obviously, in this case, a court has to interpret them.
677
671
Andrews v Diprose (1937) 58 CLR 299
672
Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39
673
Fisheries Management Act 1991 (Cth); Australian Fisheries Management Authority
v PW Adams Pty Ltd (1995) 61 FCR 314; 134 ALR 51
674
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38; 66
ALR 299 at 308 per Mason J
675
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
at 228
676
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38; 66
ALR 299 at 308 per Mason J
677
See, eg, Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138
ALR 656; and Foster v Minister for Customs (2000) 200 CLR 442.
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