something the same way. What one person regards as an obvious inference,
another may see as unwarranted. As Dixon J said, determination of relevant
and irrelevant criteria will “always be disputable and open to wide differences
of opinion.”
685
But this is not to say that, in some cases, it is not fairly clear
that correct criteria have not been followed.
686
This means that in practice it is not feasible or desirable “for the court to
prescribe a list of matters which must always be considered or to prescribe
which factors should be given more weight than others.”
687
It also means that
criteria will “vary from case to case.”
688
Yet there is some certainty. A decision in a statute is conferred for a public not
a private purpose. Hence, “entirely personal and whimsical considerations”
will be excluded.
689
Similarly, mere conjecture is an irrelevant consideration.
690
Reviewing Decisions
If a decision maker does not deploy criteria in a legally correct way the
decision may be challenged by judicial review. The most direct ground of
review in these circumstances involves either failing to take a relevant criterion
into account or taking an irrelevant criterion into account.
In practice, it should be noted, there is a difference in the way in which courts
use the two branches of the ground for review when there are implied criteria.
First, with regard to the requirement that a decision maker must not rely on or
use irrelevant criteria, it may sometimes be clear that a decision maker has
relied on such criteria so that a court can strike down the ensuing decision.
That is, it can “pronounce given reasons to be definitely extraneous to any
objects the legislature could have had in view.”
691
Second, there is the question of the obligation of a decision maker to follow
relevant criteria when the criteria are implied. Logically, a court can review a
decision on the basis that the decision maker has failed to take relevant criteria
into account.
692
In practice, there may be a difficulty because finding and
685
R v Trebilco; Ex parte FS Falkiner & Sons Ltd (1936) 56 CLR 20 at 32
686
Ates v Minister for Immigration (1983) 67 FLR 449
687
Sean Investments v MacKellar (1981) 38 ALR 363 at 375 per Deane J
688
Sean Investments v MacKellar (1981) 38 ALR 363 at 375 per Deane J
689
Murphyores v Commonwealth (1976) 136 CLR 1 at 12 per Stephen J, and see at
17-18 per Mason J.
690
Waniewska v Minister for Immigration (1986) 70 ALR 284
691
Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at
505 per Dixon J
692
In Minister for Aboriginal Affairs v Peko-Wallsend
(1986) 162 CLR 24 at 39-41,
Mason J said that, with an unconfined discretion, a court may not “find that the
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