89 In SBAP v Refugee Review Tribunal [2002] FCA 590, Heerey J equated good faith to the absence of bad faith. His Honour said that in the context of administrative decision-making, bad faith was a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in such a process; as such, the allegation was one, not lightly to be made, which must be clearly alleged and proved. His Honour added that the ways in which bad faith can occur are infinite and admit of no comprehensive definition but "It can be said that the presence or absence of honesty will often be crucial. So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred". This decision supports the narrower view of the "good faith" requirement.
90 In NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, Allsop J [at [24]] agreed with what Heerey J had said in SBAP - that bad faith was not just a matter of poor execution or poor decision-making involving error, but a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision-maker. His Honour rejected the proposition that objective bad faith could be found in the absence of personal fault on the part of the decision-maker. This decision generally endorses the narrower view, but accepts that lack of a genuine attempt to undertake the task in a way which merits personal criticism of the decision-maker may amount to a lack of good faith.
91 In NACL v Refugee Review Tribunal [2002] FCA 643, Conti J echoed the views of Heerey J, that the suggestion that a purported exercise of power was not bona fide was a serious allegation not lightly to be made, necessitating proof of extreme circumstances and requiring evidence that the decision-maker had been in extreme default of its administrative function - for example by proceeding to a determination on the premise of facts or circumstances which it knew to be untrue, or by making no real attempt to address the applicable statutory criteria. While tending to support the narrower view, this decision admits that a decision-maker who makes no real attempt to address the applicable criteria might thereby fail to make a good faith attempt.
92 In NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805, Hely J endorsed the approach of Heerey J in SBAP and Allsop J in NAAG, adding [at [41]] that a failure to act in good faith involves a lack of honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision-maker, and that bad faith was not just a matter of poor execution or poor decision-making involving error, though His Honour accepted that whether an inference of want of good faith should be drawn could depend on the cumulative effect of the circumstances even though no one of them alone would be sufficient to sustain the conclusion. Although generally endorsing the narrower approach, this decision allows that absence of a genuine attempt to undertake the relevant task, though not dishonest, may amount to a failure to act in good faith.
93 In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, the Full Federal Court considered the first of the Hickman conditions in a manner which was summarised by Sackville J in Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 [at [59]] as follows:-
The touchstone that emerges from the judgment in NAAV is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so "blatant" (to use Von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Daihatsu v FCT , at 590.
94 In SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076, Mansfield J said that the circumstances in which the court might find an administrative decision-maker had not acted in good faith were likely to be rare and extreme, particularly where the only attempt to demonstrate lack of good faith is by reference to the reasons for decision themselves [at [28]]. His Honour observed that mere error or irrationality or apparent irrationality would not of itself demonstrate a lack of good faith, but might do so in conjunction with other factors or in all the circumstances of the case [at 29], there being no simple step between unreasonableness and a finding of absence of good faith, which were not co-relatives [at 33]; a combination of factors might produce a conclusion that a decision-maker has not exercised its powers in good faith. While accepting that mere irrationality is not to be equated with an absence of good faith, this decision generally follows the broader view, that dishonesty is not an essential element and failure to make a genuine attempt will suffice.
95 In NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293, Kiefel J, with whom Spender and Moore JJ agreed, endorsed the view of Allsop J in NAAG that bad faith implied a lack of an honest or genuine attempt to undertake the task and involved personal criticism of the decision-maker. While generally favouring the narrower view, this decision again allows that in the absence of dishonesty, failure to maker a genuine attempt to undertake the task, such as to warrant personal criticism of the decision-maker, may amount to a lack of good faith.
96 In NAAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 300 a Full Court of the Federal Court (Sackville, Allsop and Jacobson JJ) held that there was no basis for concluding that the RRT had not made a bona fide attempt to discharge its statutory functions; if its reasoning on some factual issues might be thought to be less than wholly convincing, that did not show that it did not make an "honest attempt" to deal with the subject matter entrusted to it [at 29]. This decision tends to support the narrower approach to the "good faith" requirement.
97 In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, another Full Court of the Federal Court (Tamberlin, Mansfield and Jacobson JJ), distilled nine propositions from the authorities, which may be summarised as follows:-
· First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
· Secondly, the allegation is not to be lightly made and must be clearly alleged and proved;
· Thirdly, there are many ways in which bad faith can occur, and it is not possible to give a comprehensive definition;
· Fourthly, the presence or absence or honesty will often be crucial;
· Fifthly, the circumstances in which the court will find that an administrative decision-maker has not acted in good faith are rare and extreme; especially where all the applicant relies upon is the written reasons for the decision under review;
· Sixthly, mere error or irrationality does not of itself demonstrate lack of good faith, and bad faith is not to be found simply because of poor decision-making, it being a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism;
· Seventhly, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness;
· Eighthly, the court must make a decision as to whether or not bad faith is shown by inference from what the tribunal has done or failed to do and from the extent to which the reasons disclose how the tribunal approached its task; and
· Ninthly, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
98 For the seventh proposition, their Honours cited the decision of Mansfield J in SBAU, at [31], where His Honour had said that errors or illogicality in a decision might, either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part, by showing capriciousness (emphasis added):
Errors of fact or law apparent in its reasons will not of themselves demonstrate a lack of good faith on its part, at least other than in exceptional circumstances. Illogicality in its reasons also will not of itself demonstrate a lack of good faith on its part. But such errors or illogicality might, either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part. They may show such capriciousness on the part of the tribunal that only one conclusion is open to the court .
99 For the ninth proposition, their Honours cited SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377, in which Von Doussa J, with reference to NAAV at [107] - where Black CJ had cited with approval a passage from the judgment of Allsop J in NAAG, [24] - and to the approval by the High Court in MIMIA v Wu Shan Liang [at 276] of the statement by Gibbs J in Buck v Bavone [at 118-119], equating a bona fide exercise of power with the absence of arbitrariness or capriciousness - concluded that to establish that an attempted exercise of power was not bona fide it may not be necessary for the applicant to go so far as to show that the power was exercised in a way that the decision-maker actually knew was wrong, and that an exercise of power that was reckless as to whether it was in a manner required by law may not be a bona fide exercise of it.
100 SBBS, while recognising many of the constraints propounded by those who endorse the narrow approach, fundamentally supported the broader approach by holding that actual dishonesty was not required, and that capriciousness, which might be inferred from a range of matters, could be sufficient to establish a want of good faith.
101 In WAFV v Refuge Review Tribunal (2003) 125 FCR 351, French J undertook a comprehensive review of the authorities, and concluded that good faith required more than the mere absence of bad faith, and that absence of good faith was not limited to cases of dishonesty or malice or personal interest, but may be found in a reckless or capricious approach to the exercise of the power in question [at [52]]:-
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 conscientious approach to the exercise of power.
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.
102 In NAMM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32, a Full Federal Court (French, Lindgren and Finkelstein JJ) endorsed the passage cited above from French J's judgment in WAFV [at [50])] By recognising that a substantial departure from minimal standards of decision-making, such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it, may be sufficient to establish a want of good faith, it endorsed the broader view of the good faith requirement.
103 In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, a Full Court of the Federal Court considered the nine propositions from SBBS. Heerey and Kiefel JJ adopted the first eight propositions but qualified the ninth, saying that while reckless indifference may be the equivalent of intent, the test is not objective and the enquiry (as to want of good faith) is directed to the actual state of mind of the decision-maker, there being no such thing as deemed or constructive bad faith. "It is the ultimate decision which must be shown to have been taken in bad faith and illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith, since they can equally well be explained as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty" [at [8]]. This decision favours the narrower view of the good faith requirement.
104 In Minister for Immigration and Multicultural and Indigenous Affairs v NAOS [2003] FCAFC 142, another Full Court of the Federal Court (Whitlam, Finn and Goldberg JJ) set aside a judgment of the Federal Magistrates Court which had upheld a complaint of lack of good faith in a decision of the Refugee Review Tribunal. The Full Court reviewed the nine propositions enunciated in SBBS, and the qualification of the ninth in SBAN, which qualification their Honours endorsed, adding that it should be extended to the seventh proposition so as to make clear that want of bona fides would only be made out in circumstances where whim or fancy has consciously been preferred to considered judgment. Their Honours suggested [at [21]] that the seventh proposition in SBBS "may be of doubtful assistance", as "the concept of capriciousness is encountered in the law in circumstances which are concerned with unreasonableness" [at [21]].
105 This decision clearly endorses the narrow view of the good faith requirement. However, insofar as it is based on the view that the concept of capriciousness is encountered in circumstances concerned with unreasonableness, it may, with respect, afford insufficient regard to its derivation in this field from what Gibbs J had said in Buck v Bavone, where it was used as the antithesis of good faith.
106 In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 412, Gyles J said that an allegation that a decision-maker did not act in good faith was in substance and effect an allegation that the decision-maker acted in bad faith, and that bad faith cannot be constituted by recklessness in the sense of negligence no matter how gross; a decision-maker cannot blunder into bad faith no matter how stupid and careless, any more than a person can blunder into deceit or wilful blindness [24]. His Honour said (at [24]):-
What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.
107 This decision plainly endorses the narrow view.
108 Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761, considered the meaning of "good faith" in the different context of the Racial Discrimination Act (Cth) 1975, s 18D, which provides that for certain conduct to be protected from attracting liability, it must be done in "good faith". However, French J [at [85]] referred to and drew on the review in WAFV of the authorities on "good faith" in the context of the Hickman principle, and re-affirmed that absence of good faith which will amount to jurisdictional error vitiating the exercise of a statutory power was not limited to cases of dishonesty, malice or personal interest and may be found in a reckless or capricious approach to the decision-maker's task, the exercise of a power in good faith requiring an honest and conscientious approach, consistent with the idea that good faith involves not only honesty but fidelity - faith - to the obligation cast upon the decision-maker [at [85]-[93]]. Carr J, who joined French J in the majority, did not deal with the meaning of "good faith" so directly, but seems to have accepted that absence of good faith might be constituted by something less than dishonesty, fraud or callous and reckless indifference [at [168], [173]]. Lee J, who dissented, took the still broader view that in the context of the Racial Discrimination Act, the words "good faith" involved more than the absence of bad faith, dishonesty, fraud or malice, and imported a requirement to act with prudence, caution and diligence, citing Mid Density Developments [at [144]]. Overall, though not directly in the context of the Hickman principle, this case reaffirmed the broader view of the good faith requirement.