An essay: Consent Withheld. Sovereign Citizens & the everyday reality of the law.
Conversations with Mark Swivel
Conversation#3: David Heilpern, Dean of Law, SCU, former magistrate.
May 22, 2024, 6pm. The Drill Hall. Mullumbimby.
Part One - A Story
I’m at Byron Local Court. Mondays are always busy. Our magistrates are well paid but the sheer volume of cases on a Monday morning are a cruel test set by an indifferent god. Drink driving. Domestic violence. Bail applications. All the problems of the parish. Freedom, jobs, relationships on the line. It’s an intense environment for our grass roots judicial officers to manage. Manilla folders full of chaotic documents. The accused shambolic and distressed. Mundane mayhem.
Magistrate Stafford - as is the habit - calls out for anyone seeking an adjournment - a postponement of their case - so she can move on to more significant matters. A fellow comes forward, around 30, obviously no stranger to labouring or gyms, and says ‘Yes, I want an adjournment to get legal advice and appear with my MacKenzies Friend’. That’s an advocate who speaks for a defendant, usually when someone lacks the capacity or confidence to speak in court. ‘I suffer from stress and anxiety’ says the defendant. ‘You’re amongst friends’ I mutter to myself, two seats away at the bar table waiting my turn.
Man number two, also around 30 and as buff and barrel chested as he is dishevelled says, ‘Yes I am a Mackenzie’s Friend. But I want to say that my friend does not recognise the authority of this court’. Magistrate Stafford, a stylish middle-aged woman executes a 720 degree eye roll, pushes her glasses to her nose, and asks: ‘Now why is that sir?’
‘Um. Because we are sovereign citizens. We are free men of the land’.
‘What do you mean by that?’
‘The law does not apply to us. We do not consent’.
‘Ah. Sir, I can assure you the law does apply to you and me and everyone here today. (A short sigh) What is this charge about?’
‘Unregistered vehicle, your honour’.
‘Right. And you want an adjournment. For what purpose?’
‘To get legal advice’.
‘I see. You do understand that lawyers serve this court and they know what it is here for’.
‘Yes but this is a lawyer who knows the common law’.
Magistrate Stafford pauses and looks at the 30 people spread around the courtroom as if to count them and so reconnect with reality. ‘It is Monday morning. Look at all the people here. This court applies the law of this state of this country. That includes the common law’.
‘Your honour. Our lawyer will come and put my friend's case in full. With all authority. Full research. Precedents. We are sovereign citizens’.
‘Ok. The high court has settled this matter. What you say is … well … meaningless. This court is real and the law applies to all of us’.
‘That’s your opinion’.
‘Yes it is. And the law. Who is this lawyer?’
‘I cannot say, he is busy on another case, a big case, and we may need to use someone else’.
‘Very well. How long do you want this adjournment for?’
‘Two weeks’.
‘Right. (Big breath). You must not drive the unregistered vehicle. Understand? You may be charged court costs when you return. Your ‘lawyer’ should be able to explain all this to you. You receive a 25 per cent discount on sentence if you plead guilty early but that could now fall away. You are sure you want to do this?’.
‘Yes. We stand by what we believe. We are sovereign’. As if repetition would seal the argument.
‘Alright. Two weeks. Your matter is relisted for the 24th of this month. You are excused’.
I never know whether to laugh or cry when this happens; and it regularly does. To be clear I don’t always an agree with this magistrate’s decisions - who is scrupulously fair but firm. Like many local lawyers I have run and won severity appeals in the district court against the occasional decision. That’s all normal. But in this moment I felt for Magistrate Stafford. Because what the men at the bar table - the defendant who had driven an unregistered vehicle and his friend - were saying had no substance at all. Such a minor offence but these men were making a major claim - namely that the court had no power over them.
So … what is a sovereign citizen? And what was that exchange all about? What does it tell us about the nature of the law? What really ‘is’ law? Is consent important? I would say so. If possession is supposed to be nine tenths of the law, then consent could make the same claim. It is not good maths but it is true. The state may well hold a monopoly on violence and be defined by that like Weber said but for the most part, the law lives and breathes by our consent.
Part Two - A Few Telling Cases
1. ‘Thank You, Mr Essenberg’
In 2000 Mr Essenberg appealed to the High Court against firearms charges and asked for his case to be heard in his local community … in Kingaroy. This is the decision alluded to by the magistrate in our opening anecdote in Byron Bay. Justice Michael McHugh - who is said to have read every case in the Australian Law Reports and to have remembered the facts and implications of each and every one - gave Mr Essenberg 20 minutes to put his case.
Mr Essenberg resented having to surrender his weapons in the wake of the Port Arthur massacre. He tried to rely on the law to win a legal argument that the law somehow does not apply to him. Ambitious to be sure! Here is the crux of what he said:
I come to this Court under the Constitution of Australia 9.1 asking this question which I trust you will answer for me. Will the High Court decline to hear this matter any further, as it is an appeal court in this instance, and either remit the matter back at common law under section 44 of the Judiciary Act 1903 to the District Court at Kingaroy or hear it at common law itself at Kingaroy for hearings before a jury of my local community, to establish the fact of whether the Weapons Act 1990 is in truth an Act for the peace, order and good government of Queensland or is an Act discriminating against country people who need guns for security of their homes and for vermin and for city people who may have no need for a gun at all? A declaratory judgment on the validity of the statute in question under the Weapons Act 1990 of Queensland is sought in addition to the orders sought previously.
I have never had a proper trial of the issues I raised by taking air rifles and non-functional .22 bolt action rifles into a public place to test the gun laws imposed on Australia after the Port Arthur massacre. In the hysteria that followed, politicians passed gun laws all over Australia and I honestly believe they are not legal or within the legal competence of the Parliaments that passed them. They offend a number of laws which were in place when the referendum was held to establish this Court and the repeal of those laws was outside the competence of Parliament when the referendum was passed in 1899. I honestly believe they still are.
Justice McHugh, impeccably fair, replied like this:
McHUGH J: But is not the problem you face that the Magna Carta and the Bill of Rights of 1688 are not documents binding on Australian legislatures in the way the Constitution is binding on those legislatures? Any legislature acting within the powers allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta which, I suppose, is really the heart of your argument, it is really more a statement of political ideals. They are not constitutional documents in the sense that the Australian Constitution and the United States Constitution are. That is the problem which you have. They are political ideals which most citizens would hope that Parliaments would follow but if Parliaments do not follow them, the remedy is the ballot box because we do not have a Bill of Rights in this country. If you were in the United States, you would have some arguments about whether the Weapons Act 1990 of Queensland was wholly or partly invalid, but we do not have a Bill of Rights in this country.
McHugh expressed the court’s final decision in these terms:
The applicant seeks special leave to appeal against an order of the Court of Appeal of Queensland refusing leave to appeal against an order of the District Court dismissing his appeals against convictions under the Weapons Act (Qld). The applicant contends that Magna Carta gave him the right to trial by jury in respect of these offences and that the requirements imposed by the Weapons Act to have a licence are invalid, being contrary to the Bill of Rights of 1688. In the Court of Appeal, Mr Justice Chesterman said that the applications for leave to appeal to that court were totally without merit. Legally and constitutionally, that is so. Magna Carta and the Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom. That being so, an appeal would have no prospects of success. For that reason, special leave to appeal is refused.
Thank you, Mr Essenberg’.
You can read the full dialogue, here: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/other/HCATrans/2000/386.html.
2. The Jurisdiction of Mr Ross Bradley
In 2020, in a similar vein, Ross Bradley wanted the Queensland Court of Appeal to quash a $150 fine for driving without a licence. Bradley argued he was his ‘own jurisdiction’, submitting to the court (again) that the law did not apply to him. The judge wondered why Bradley was in court at all if he did not accept its authority. The judgement of the Court of Appeal is so short it can repeated in full:
‘SOFRONOFF P: The applicant was charged with one count of unlicensed driving. He was convicted and fined $150 with no conviction recorded. He applied to the magistrate to dismiss the charge on the ground that for reasons that are not clear a police officer had no power to charge him or to commence the proceedings in question. The argument was obvious nonsense and the magistrate rightly rejected it. After hearing the evidence led by the prosecution, the magistrate found the applicant guilty as charged. Not satisfied with this outcome, the applicant appealed to the District Court and argued that he was something which he called a citizen sovereign and that the laws of Queensland did not apply to him. If that was true, then it would be hard to understand why the applicant was agitating his complaints before this court, which is one that has been established under the laws that he says do not apply to him. This paradox did not trouble the applicant and he has now applied for leave to appeal against Judge Moynihan QC’s order dismissing his appeal. That the applicant is merely persisting in putting forward a jumble of gobbledygook to support his application in this court can be seen at once if one reads only the two opening sentences of his purported outline of argument:
“My BRADLEY person (conjoined with the BRADLEY ‘spiritual’ family body-politic) is my own “body politic” by succession, at Law. It is my natural body incorporated at the supreme Christian Law and is my own jurisdiction”.
This application is an abuse of the court’s process and should be dismissed’.
The full case can be read here: https://archive.sclqld.org.au/qjudgment/2020/QCA20-252.pdf. You might recognise the name of the judge who has had his own travails of late (https://www.abc.net.au/news/2024-05-13/act-integrity-commission-walter-sofronoff-investigation/103840966) - which will do little to instil confidence in our courts among sovereign citizens. But whatever happens to Sofronoff at law, the other judges in this case, Justices Debra Mullins AO and David Boddice QC, agreed with him on the day!
3. Denis Walker, Noonucal Man
Sovereignty has also, on different terms, been argued by First Nations people. This is a distinct line of cases but the end result is similar to what happens with sovereign citizens. Former magistrate David Heilpern once had a client called Denis Walker who, took our state government all the way to the High Court. Walker argued that our criminal law did not apply to Aboriginal people because they had not consented to that law. The court disagreed on the grounds that the criminal law applied equally to all people; and that any customary criminal law in place in Australia was ultimately overridden by English law and Australian statutes.
Walker’s put his argument in formal terms like this: “[Para 10-11] The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the aboriginal people. Further and in the alternative, if the Parliament of the Commonwealth or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people whom, or whose land, it purports to effect (sic)."
The Court met this argument head on: "Couched as they are in terms of the legislative incapacity of the Commonwealth and State Parliaments, those pleadings are untenable. The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever (1 Constitution Act 1902 (N.S.W.)). The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected. As Gibbs J (with whom Aickin J agreed) said in Coe v. The Commonwealth of Australia (2 [1979] HCA 68; (1979) 53 ALJR 403 at 408; [1979] HCA 68; 24 ALR 118 at 129): "The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside."
So, to be clear, it is not good ‘law’ to say that Australian law acknowledges sovereignty for First Nations people. The opposite is true: our criminal law extinguished customary law; and native title (and even land rights) rights are based in the introduced Australian law. When we say ‘Aboriginal sovereignty was never ceded’ we are making a political statement. You can see that this is close to the observations Justice McHugh made about the Magna Carta in the Essenberg case. You can read the judgment of Chief Justice Anthony Mason (yes, the man who gave Sir John Kerr legal advice in 1975 and did not think to disclose this to anyone at the time) in full here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1994/64.html.
4. Chait v The Church of Ubuntu
More recently, I acted for a worker who won an unfair dismissal case - her employer sacked her because she chose to get vaccinated for Covid 19, back in 2021. The case received media attention: https://www.abc.net.au/news/2024-03-21/church-of-ubuntu-loses-vaccination-dismissal-case/103608482. We battled for two and a half years to beat off a range of jurisdictional objections and appeals. The respondent, the Church of Ubuntu, a self-styled religion and non-profit organisation offering cannabis-based alternative therapies, withdrew from the case before the final hearing arguing that all the decisions of the commission were ‘void ab initio’. This arbitrary use of Latin indicated they did not accept the authority of the commission. The commission ordered the Church to compensate the worker. As the decision shows, the Church set out its position in an email from its public officer Pastor Burton which stated:
“As you are aware The Church of Ubuntu will not be appearing in the Fair Work Commission matter U2021/9704 Chait v Church of Ubuntu on Wednesday the 22nd of November as this matter was and is “void ab initio”. As a matter of respect and for completeness their position is summarised in the document they provided on the 16th October 2023 (attached) that they will also rely on if and/or when this matter is raised before a competent court of law. The Church believes you will find in Ms Chait's favour irrespective of all the facts, the evidence, and the TRUTH, and we forgive you all for this as that is ultimately a matter between each of you and the nameless formless imperishable absolute that we call Almighty God, whom created all of you. The Church and the Wellness Clinic wish you all well and note that the Ubuntu Wellness Clinic has a very affordable intake process (link below) and that they may be able to assist people struggling with the now well known and well documented side effects to the COVID-19 inoculation, in the worlds largest ever untested medical experiment forced upon millions and millions of innocent people globally and actively encouraged by governments all over the world whom are largely controlled by giant multi national corporations and ‘pharmakeia’. We pray for immediate retribution in this lifetime and for salvation for all who are suffering and in need.”
Indeed! May we all be forgiven our sins. The full decision: https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc703.pdf
5. The dark and darker side …
As David Heilpern has pointed out some sovereign citizens monetise their ideas and sell bogus solutions to legal problems. Aussie Speeding Fines offers misleading and wrong advice on how to handle traffic offences. How does their site remain active? https://aussiespeedingfines.com. Lawful Me a product of the Living Free Movement offers bush lawyerish advice: https://www.livingfreemovement.org/me-platforms/lawfulme. The ‘terms of use’ for this site are a word-salad contract for the members setting itself outside the legal system - including, presumably, consumer protection laws and prohibitions on misleading and deceptive conduct. It would be interesting to see this tested, in a real court. For more: https://www.livingfreemovement.org/terms-of-use. See David’s views here: https://www.scu.edu.au/news/2023/pseudo-law-conference/.
Sovereign citizen thinking has been linked (controversially to some) to the Wieambilla shootings in 2022 where 2 police officers and a farmer were killed, along with 3 members of a cult-like community. A much darker strain to this theme: https://www.abc.net.au/news/2023-02-17/qld-police-sovereign-citizens-extremist-wieambilla-attack/101989398. So this is not always a tale of 'harmless fools'.
Part Three - Reflection
What then ‘is’ the law? Sovereign Citizens make us think about this fundamental question. The Essenberg, Walker, Bradley, Glew and Chait cases all suggest that any law is whatever the law itself says it is. The law is the law and derives its authority from itself. There is no other source of authority. The snake eats its tale. It is circular but also the social and institutional fact of the law in everyday practice.
Sovereignty traditionally referred to the monarch whose source of power was god. The sovereign made law and ruled its subject lands and people by divine right. Over time the shift towards democracy has seen the rise of the social contract as the real source of authority or legitimacy. The state, as Weber observed, has a monopoly on violence, with powers of arrest and incarceration which stand behind the nominal authority of the law. But the authority of the law is, in practice is entrenched by our acquiescence or consent.
The law in the end is part of the social contract between all citizens. In practice we comply because we have various motivations to participate in society and accept the terms of the bargain. When a court makes a ruling, we accept the umpire’s decision. Generally. Enforcement can be a problem of course! We may comply to protect our reputation or brand as a law-abiding citizen or company. We may think we have an ethical or political commitment to observe the law and respect authority as an end in itself. We may have a psychological or even political resignation to the reality that the world is against us or you cannot beat the system, so judgments are accepted, with reluctance or even bitterness. The weakness of international law proves the point: nations too easily evade the principles and decisions that should apply to them.
So the heart of the law and the social contract is consent. What is the alternative? Simply to withhold consent; to claim to be sovereign in yourself. Like Mr Bradley, to be your own jurisdiction. Like the Church of Ubuntu, to forgive the Fair Work Commission its sins and see its decisions as empty. Sovereign citizens ultimately make a political argument which sits - however incoherently - within the tradition of anarchism, but are a long way from the elegant philosophy of Bakunin or Proudhon. When a sovereign citizen asks a court - which knows only its own rules and terms and language - to recognise them as sovereign and they can be branded a fool, because they do not speak the language of the context.
Sovereign citizens are an example of ineffective civil disobedience. Traditionally union strikes broke laws to achieve greater fairness for workers. Women marched against the law to demand the right to vote. Environmentalists locked on and blockaded to protect wilderness and biodiversity. Civil disobedience seeks to change law or to engage government to take corrective action. Yet ultimately the law itself rules, it continues for all its inherent flaws and ultimately we consent. We may not agree, we may not support, we may seethe with anger and bristle with injustice but our culture demands a respect for the law. Even this week after the widely criticised decision in the McBride case defendant submitted to the authority of the court. Even with Assange the protest is made within the law. There are limits to our civil disobedience. We tolerate injustice in our courts and elsewhere every day. The over-incarceration of First Nations people. The criminalisation of the mentally ill who languish in our gaols. Our fellow citizens who have no housing or reliable work. The outrages are legion. It is a wonder we do respect the courts of a society that creates and accepts pervasive injustice. But we do. Sovereign citizens do not. But to what end? The rebellion seems self-involved and disconnected to any larger social argument. May we see more coherent and effective ways of reforming our law and society, based on universal human rights, whose foundation is our shared humanity. May Ross Bradley inspire us not to become our own atomised and disconnected jurisdiction but to revive the law as the vessel of justice for every living person and thing on this earth.
Mark Swivel
17 May 2024
This essay accompanies Mark’s conversation with David Heilpern. The third in a series of conversations in collaboration with Byron Community College. Crisis? What Crisis? How History, Law and Policy can save the World!
Reading / Watching list
WTFAQ, ABCTV:
https://enlighten.griffith.edu.au/sovereign-citizens-eccentrics-or-extremists/
Dr Catherine GreenTree https://lighthouse.mq.edu.au/article/july-2023/please-explain-why-do-sovereign-citizens-flout-the-law
David Heilpern
https://www.scu.edu.au/news/2023/pseudo-law-conference/