There are two broad possibilities for measuring criteria. (i) Sometimes it is
possible to measure the strength of a criterion by a numerical standard. For
example, income, assets, days off work and distance from a place all have
measures that can be expressed numerically. (ii) Where numerical measure is
not possible, it can still be possible in some cases to rank items. For example
one criminal offence may be regarded as more severe than another.
Let us illustrate measuring criteria. Assume that one of the legal criteria for
granting unemployment benefits consists of financial need. ‘Financial need’
embraces two types of facts – facts that indicate the assets or income (or lack
of these) of the person and facts that indicate the needs that the particular
person has. These facts are proved
by evidence in the ordinary way. When
facts of this kind are proved by evidence, they establish, in some degree or to
some extent, financial need. Almost inevitably, as is the case here, the question
of establishing a criterion is mixed in with the question of measuring the
criterion. Two cases will illustrate all of this:
(1)
Case 1. Person 1 receives an allowance from their family, which covers
three quarters of their living expenses. Person 1 has financial need to the extent
of one quarter of their living expenses.
(2)
Case 2. Person 2 receives no support from their family and for health
reasons requires a special diet which means their food expenses are about one
and a half times the average. Person 2 has quite a substantial need generated
by the combination of these factors – lack of support and higher than average
living expenses.
Step 6 Aggregating Criteria
A court must aggregate criteria to ascertain how cumulatively strong they are in
making a case for exercising the discretion according to each option. To do
this, the official has to take each option in turn to gauge or measure its net
benefit. For each option the court does this by looking at the criteria “as a
whole”
710
and aggregating them,
711
however imprecise this task may be. In
weighing up these
criteria the court must give greater weight to substance
rather than to form
712
or label.
713
Moreover, these criteria have to be
aggregated in the context of the particular case.
714
710
Evans v FCT (1989) 89 ATC 4540, 4554-4555
711
Hallstroms v FCT
(1946) 72 CLR 634, 646 per Dixon J, FCT v Blake
84 ATC
4661, 4664
712
FCT v Bivona
(1989) 89 ATC 4183, 4191, FCT v Radnor (1991) 91 ATC 4689,
4700
713
Narich v Commissioner of Pay-roll Tax
(1983) 50 ALR 417, Transport Workers
Union of Australia v Gynburm Contractors (1990) 34 IR 138
714
FCT v Bivona
(1989) 89 ATC 4183, 4191, FCT v Radnor (1991) 91 ATC 4689,
4700
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