Clearly to answer questions such as these it is necessary for the official to
have evidence. This process is covered by two parts of the model in Figure
26.3. Facts 1-n in the third column establish Criteria 1-n in the first column.
Evidence 1-n in the fifth column proves Facts 1-n in the third column.
To
explain this further, let us assume that there are five criteria. There is
evidence to prove the relevant facts for four of the criteria only. One of the
criteria, Criterion 4 is not established because there is no Evidence 4 to prove
Fact 4, which is needed to establish the presence of Criterion 4. This means
that in the particular case, although Criterion 4 is relevant in principle it has not
been established and thus will not be used in the making that particular
decision.
It is always possible that the parties dispute whether a criterion is established.
This dispute is really a dispute of fact because it is disputing the existence of a
fact that establishes the presence of a relevant criterion. This process can be
illustrated by a model. If Criterion X
is disputed, one side of the case will
argue that Fact X establishes the presence of Criteria X, and Evidence X
proves Fact X. On the other side, Non-Fact X establishes Non-Criterion X
which is the absence of Criterion X and Non-Evidence X proves Non-Fact X.
This dispute can be represented in the following diagram:
Criterion X
Criterion X
Fact X
Evidence X
Non-Criterion X
Non-Fact X
Non-Evidence X
Figure 26.4 Establishing a Criterion by Facts and Evidence
Step 5 Measuring Criteria
Criteria can be present (or absent) in varying extents or degrees.
Consequently, having used evidence to ascertain that these criteria are present,
it is also necessary to use evidence to assess the degree or extent to which a
criterion is present or absent.
709
Obviously, the greater extent to which a
criterion is present, the more weight it has in determining the net benefit of an
option that it supports.
Readers will have observed that the distinction between Step 4 and Step 5 is
artificial. The point is well taken, but the distinction is used to highlight that
with some criteria is not simply a case of ‘yes’ or ‘no’ as to whether they are
present or they are absent. Instead they are present or absent in some degree
or measure.
709
FCT v Dixon (1952) 86 CLR 540
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