Once the criteria are graded they can be labelled as Criteria 1-n and listed
numerically according to their importance. That is, Criterion 1 is the most
important, Criterion 2 is the second most important and so on.
Step 4: Establishing Criteria
The previous steps identified the range of legally relevant criteria and
graded
them according to their importance. For a particular decision, however, it is
necessary to identify which criteria in this range are applicable and which are
absent.
708
For example, the fact that a person suffers ill health may be a
relevant criterion for a decision. Criteria such as this are established by
evidence. In that sense criteria constitute the sub-elements of a discretion.
Thus there is a question for the court here in relation to each relevant criterion.
Do the facts of the case support the use of the criterion? The answer to this
question establishes whether the criterion applies in this particular case.
If the facts do support the use of the criterion in the particular case, it may be
necessary to establish some of attributes of the criterion such as its nature and
extent. However, this is the territory of Step 5 Measuring Criteria. It is artificial
to separate these two steps since they are performed together. This point is
conceded. The two steps were separate to emphasise their separate roles in the
model while conceding that they would generally be performed at the same
time.
To illustrate, assume that a criterion for admitting a person to a retraining
scheme is phrased as “service in one of the defence forces”. A broad and
commonsense view of this would be that at least two types of questions need
to be answered to establish the relevant facts. First, has the applicant done
service in one of the defence forces? The answer to this question determines if
the criteria is established or applicable in the case. This enables the court to
determine if the criteria is established.
If the criteria is established the court has to measure it. As we noted this is
somewhat artificially covered in Step 5 in order to stress that two tasks are
involved. To give a preview of Step 5, it would entail a second inquiry. If the
person had done defence service, it would be important to define the duration
and nature of the service. So one question is, for what duration was the
service? Obviously the longer it was, the greater the weight that this criterion
carries. Another question to ask is what did this service entail? Some types of
service might weigh or count more than others in making the decision.
708
Erichsen v Last (1881) 8 QBD 414, 416 and see Taxation Ruling TR 97/11
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