be made on the basis of choosing the action that yields the highest net benefit.
This is so because the action that yields the highest net benefit also constitutes
the most just course of action available. In the example, the Director would
grant the pension when the net benefit of granting a pension would be greater
than the net benefit of not granting it.
In the light of this analysis, there is clearly a better way to understand the issue
of the discretion than just stating the alternative action that the discretion
authorises (will they or won’t they?). Instead it is better to conceive it in terms
of net benefit. Will the greater net benefit ensue from exercising the discretion
in one way or another? To illustrate from the unemployment example, in a
particular case the issue would be stated in the following way: would the
greater net benefit ensue from granting an unemployment pension to the person
in question or not granting it?
Criteria
Net benefit has to be measured in some way. For the exercise of a
discretionary power, net benefit is measured by reference to the criteria that are
legally ordained for exercising the discretion (although other terms besides
criteria are used, such as objects,
146
objectives,
147
reasons,
148
matters,
149
factors,
150
and considerations
151
). Criteria are the currency in which net benefit
is valued and measured. This has three aspects. First, and most fundamentally,
criteria distinguish things that are valued from things that are not valued.
Things that are valued (in the base sense of having a value put on them) count
as benefits and costs and so contribute to net benefit. Second, for legal
purposes each criterion has a weight attached to it, even though this is typically
not measured. For example something may be a core or fundamental criterion
on the one hand or a minor or peripheral criterion on the other hand.
Moreover, some criteria can be present in varying degrees. For example if
work experience is a criterion (whether fundamental or incidental) it can be
___________________
146
Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at
505 per Dixon J
147
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR
314; 134 ALR 51
148
Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at
505 per Dixon J
149
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66
ALR 299 at 308 per Mason J
150
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39; 66 ALR
299 at 308-309 per Mason J
151
R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45;
27 ALR 321
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