Introduction: The BIF23 Case
In a significant ruling on legal capacity in December 2024, the High Court of Australia delivered a judgment that sheds light on how mental capacity intersects with legal processes.
In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44, the Court considered whether a notice given to a person lacking mental capacity was legally effective.
The case involved a Cambodian citizen (BIF23) who had lived in Australia since the age of 12. In 2021, BIF23 was convicted of various offences including theft and affray, and was sentenced to 18 months imprisonment. Due to these convictions, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth).
On December 1, 2021, while receiving psychiatric care in prison, BIF23 was given notice of the visa cancellation and invited to make representations about revocation within 28 days. Critically, evidence showed that BIF23 suffered from schizoaffective disorder with "grandiose delusions, disorganisation, visual hallucinations and absent insight." On January 11, 2022 (after the 28-day period had expired), the Victorian Civil and Administrative Tribunal appointed the Public Advocate as BIF23's guardian.
The High Court found that BIF23's mental incapacity at the time of notification vitiated the Minister's notice, rendering it legally ineffective.
Understanding Legal Capacity
Legal capacity is a foundational concept in our legal system and refers to a person's ability to make legally effective decisions or take legally effective actions. As the High Court noted in BIF23, it is "a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so" (citing Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511).
Legal capacity is not a one-size-fits-all concept. As Lord Reid stated in Crowther v Crowther [1951] AC 723, "there are many degrees of mental incapacity." A person may have capacity to make some decisions but not others. The assessment of capacity is decision-specific and depends on the nature and complexity of the particular decision at hand.
This was elegantly expressed by Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright (1954) 91 CLR 423, where they stated that "[t]he law does not prescribe any fixed standard of sanity... [but] requires, in relation to each particular matter... that each party shall have such soundness of mind as to be capable of understanding the general nature of what [they are] doing."
The Distinction Between Mental and Legal Capacity
It's important to understand that not every psychiatric or cognitive impairment will amount to a lack of legal capacity. In BIF23, the High Court clarified that whether a "mental incapacity" constitutes a relevant "legal incapacity" must be understood by reference to context.
In the context of the mandatory visa cancellation scheme, the Court found that a relevant mental incapacity is one where the person cannot:
Understand the nature of the notice and invitation to make representations
Make representations in response to the invitation
Understand the substantial effect of the notice and invitation on them
This lack of capacity must also be "insuperable" - that is, not capable of being overcome by assistance from interpreters, lawyers, or other advisers.
Presumption of Capacity and Burden of Proof
Our legal system presumes that adults have the capacity to make their own decisions. The burden of proving otherwise rests with those asserting incapacity, as established in numerous cases including Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 and Murphy v Doman (2003) 58 NSWLR 51.
In BIF23, the Court had to assess whether the evidence was sufficient to rebut this presumption. The evidence included psychiatric assessments showing that BIF23's delusions "significantly impact[ed] on [the] weighing of information as part of [his] decision-making process."
The Role of Guardianship
When a person lacks capacity to make certain decisions, guardianship may be necessary. Guardianship has its roots in the parens patriae jurisdiction, where the sovereign (now represented by the courts) has a duty to protect those who cannot protect themselves.
As Justice Edelman noted in Perpetual Trustee Co Ltd v Cheyne (2011) 42 WAR 209, this prerogative "was virtually unlimited" and "based on the care that the King has for those who cannot take care of themselves."
Modern guardianship legislation provides a structured framework for this protection. For example, the Guardianship and Administration Act 2019 (Vic) defines "decision-making capacity" as the ability to:
Understand relevant information and the effect of a decision
Retain that information
Use or weigh the information as part of making the decision
Communicate the decision
Implications
The BIF23 decision has several important implications:
Assessment of capacity: When dealing with clients who may have impaired decision-making capacity, lawyers must carefully assess whether the client can understand the nature and effect of the legal matter at hand.
Authority to act: As the Court observed, a "lawyer's authority can only ever occupy that range which is marked out by the client's mental capacity" (Goddard Elliott v Fritsch [2012] VSC 87). If a client lacks capacity to instruct, the lawyer cannot act on their purported instructions.
Timing of capacity: In BIF23, the Court emphasized that capacity is assessed at the time a person is required to make a decision. A person's capacity may fluctuate over time, and the validity of legal actions must be assessed in light of their capacity at the relevant moment.
Context-specific assessment: The assessment of capacity must be contextualized to the specific decision at hand. As Holland J observed in Crago v McIntyre [1976] 1 NSWLR 729, "for the purposes of considering legal capacity, a person's mind is not one and indivisible."