defining implied criteria are not precise tasks. This difficulty is acute when the
discretion is broad because such a discretion will admit a multitude of criteria.
In the result there may be a practical difficulty, sometimes amounting to an
“impossibility” of a court finding with any confidence that a decision maker
has failed to look at a criterion which they should have considered; instead, all
that they can do is to say “that this or that consideration is extraneous to the
power.”
693
Courts respond to this problem in a practical way. Where it is impossible to
extract clear criteria, courts leave it to the decision maker to ascertain the
relevant criteria.
694
Thus, where criteria may vary from decision to decision
and are numerous then, for practical reasons, a court must generally (within
limits) leave criteria to the decision maker.
General Criteria
There are some criteria which have a general application to all or most
decisions. Most emanate from outside the statute authorising the discretion.
First, when exercising a discretion a court must heed prohibitions in a
Constitution.
695
Second, there are standards which are of general application
and thus should apply to a decision unless there is good reason to disregard
them. These standards aim to do such things as protect human rights
696
(for
example, by keeping families together,)
697
promote the public interest;
698
protect the national interest
699
and avoid unfairness and misery.
700
Juristically,
use of these standards rests on natural law ideas of universal and enduring
principles of justice which should apply in human affairs. In consequence, they
are, or should be, “internationally accepted.”
701
Some of these principles
decision maker is bound to take a particular matter into account unless an
implication
that he is bound to do so is to be found in the subject-matter, scope
and purpose of the Act.”
693
R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45 at
49
694
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375
695
Lebanese
Moslem Association v Minister for Immigration (1986) 11 FCR 543; 67
ALR 195
696
Kioa v Minister for Immigration (1984) 53 ALR 658
697
Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 at 291;
128 ALR 353 at 365 per Mason CJ and Toohey J
698
Attorney General (UK) v Heinemann Publishing (1987) 10 NSWLR 86 at 191;
McManus v Scott-Charlton (1996) 140 ALR 625 at 632
699
Chaudary v Minister for Immigration (1994) 121 ALR 315
700
Minister for Immigration v Petrovski (1998) 154 ALR 606
701
Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 at 291;
128 ALR 353 at 365 per Mason CJ and Toohey J
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