Step 4: Establishing Criteria
It may be necessary to establish whether a particular criterion that is relevant
actually applies in a case.
152
If it does it may be necessary to establish some of
its attributes such as its nature and extent. 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 common sense view of this would be that at
least three types of facts needed to be established. First, has the applicant
done service in one of the defence forces? Second, if they had done defence
service, for what duration was it? Third, what did this service entail?
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
4.14. 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 it has not been
established and thus will not be used in the making of that particular decision.
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.
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Obviously, the greater extent to which it 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.
Step 6 Aggregating Criteria
An official must aggregate criteria to ascertain how cumulatively strong they
are in making a case for exercising the discretion according to each option.
Aggregated criteria for and against making the decision according to an option
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152
Erichsen v Last (1881) 8 QBD 414, 416 and see Taxation Ruling TR 97/11
153
FCT v Dixon (1952) 86 CLR 540
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