Implied Criteria
Implied criteria are criteria which are not expressly or specifically stated in the
Act, that is, there is an “absence of some positive indication of the
considerations”
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on which a decision is to be made. In such a case, where a
statutory provision does not specify criteria, that is, the discretion is
“unconfined”,
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“undefined”,
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or unstructured, it is necessary to look at the
enabling Act to see if there are implied criteria.
Ascertainment of Criteria
To ascertain implied criteria, a court will look at the whole statute. In particular
it will look at the composition, powers, status, and function of the decision
maker, at the subject matter of the power, and as well at the subject matter,
scope and purpose of the Act.
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One obvious factor which affects the criteria
is the width of the discretion. A narrow discretion suggests narrow criteria. By
contrast, a wide discretion will often be vested in a Minister who has to take
into account “broader policy considerations”
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when making a decision. In
this regard, it is easier to accord a wide and even relatively uncontrolled
discretion to a Minister than to some lesser official.
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In the same vein it is
easier to accord a wide discretion where the task itself is wide ranging. For
example, a Commonwealth Minister was accorded a wide discretion with
relation to a decision involving the export of goods as part of Australia’s trade
with overseas countries because the relevant criteria were “multifarious and
diverse.”
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By construing the statute for inferences about relevant criteria a court may
arrive at some criteria, even if not precisely defined, on which there could be a
wide measure of agreement. As the courts move from this central area of wide
agreement to other criteria based on “common sense” and presumptions about
what the legislature intended, agreement gives way to dissent. Much of this
disagreement rests on the simple fact that no two people will necessarily see
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R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45 at
49
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Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; 66
ALR 299 at 309 per Mason J
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Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758
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Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39-41; 66
ALR 299 at 309
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Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42; 66
ALR 299 at 311 per Mason J
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Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 42; 66 ALR
299 at 310-311
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Murphyores Inc v Commonwealth (1976) 136 CLR 1 at 24; 9 ALR 199 at 215 per
Mason J
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