originate in common law
702
and some in international law, either in customary
rules
703
or in treaties,
704
although these sources blend.
705
These standards can
be identified in several ways –
by their “repeated assertion in international
instruments” such as treaties and covenants, their “honouring in state practice”
or their “recognition in the writing of jurists.”
706
Disputing Criteria
A plaintiff and defendant may disagree over the identity of the relevant criteria.
To explain how this is done let the criteria as alleged by the plaintiff be
designated Criteria 1P-nP and criteria as alleged by the defendant be designated
Criteria 1D-nD.
In this step the court has to decide which criteria are legally correct. In making
its decision it may identify as correct for the decision some or all criteria
alleged by the plaintiff,
some or all criteria alleged by the defendant, some
other criteria altogether or a composition of these.
Obviously it is not possible to proceed with processing an issue of discretion
until any dispute concerning the identity of the relevant criteria has been
resolved. This is why there is great advantage in a court resolving this issue
early in a separate hearing. To do this, the court should request each party to
nominate the criteria that they argue are relevant along with written reasons to
support their position. As with general submissions on law, there can be
several rounds of submissions to ventilate arguments properly, following
which the court can hand down its decision.
Step 3: Grading Criteria
Some criteria have greater importance or carry more weight than others. So it
is necessary to grade criteria to make an assessment of the value of each
criterion.
707
As is the case with establishing criteria, it is not possible to
proceed with processing an issue of discretion until any dispute concerning the
grading of the relevant criteria has been resolved. Thus any early hearing to
resolve issues over identification of relevant criteria should include the issue of
grading criteria as well.
702
See, eg, Dietrich v The Queen (1992) 177 CLR 292 at 306; Derbyshire County
Council v Times Newspapers [1993] AC 534 at 549.
703
Koowarta v Bjelke-Petersen (1981) 153 CLR 168 at 220
704
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
705
French in Creyke and MacMillan (2000) p 20
706
French in Creyke and MacMillan (2000) p 20
707
Evans v FCT (1989) 89 ATC 4540, 4554-4555, Duff v FCT (1998) 98 ATC 2129,
2133
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