'BAD FAITH' AS A GROUND OF REVIEW

In WAFV v RRT [2003] FCA 16, French J had to consider a submission that a decision of the RRT was vitiated by reason of bad faith. He considered the meaning of bad faith in cases where a privative clause narrows the grounds of judicial review:

"52 The authorities referred to above and the propositions set out by the Full Court in SBBS make it clear that absence of good faith, for the purposes of the Hickman provisoes, is not limited to cases of dishonesty or malice or personal interest. It may be found in a reckless or capricious approach to the exercise of the power in question. Consistently with the language of Dixon J in Hickman and Proctor and in Little, the term "good faith" is not to be considered in isolation from the process to which it is applied. An authority exercising a statutory power is required to act in good faith in the sense that the authority is required to make an honest attempt to exercise the power entrusted to it. An honest attempt to exercise the power is not demonstrated merely by the absence of dishonesty or malice or personal interest. And with respect to the contrary view expressed by Heerey J in SBAP it seems to me on the authorities that bad faith is not necessarily the obverse of good faith. Good faith requires more than the absence of bad faith. It requires a conscientious approach to the exercise of power.

53 Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of "good faith" is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness.

54 In assessing the requirements of good faith for the Refugee Review Tribunal, it is necessary to bear in mind that its decisions may have the most profound consequences for those affected by them. They may quite literally be life or death decisions or significantly affect the liberty of the individual whether within Australia or outside. On the other hand, it is also necessary to bear in mind that the legislature has set up the Refugee Review Tribunal as a high volume administrative decision-making mechanism which is required by the Actto carry out its functions economically, informally and quickly as well as fairly and justly (s 420). The question whether there has been a want of good faith in the given case will depend upon an assessment of all the relevant circumstances of that case."