Intersectionality scholars have long argued that the dominant legal interpretations of discrimination — as unidimensional bias based on separable axes of stigmatized identity — have become inscribed in the discourse and political agendas of the most prominent contemporary movements for equality. Drawing on the critical race theory (CRT) view of legal institutions as a tool of racial subordination, these scholars have shown how movements against racism, patriarchy, and homophobia have shoehorned broad-based struggles for social change into rights claims that conceptualize racial, gender, and sexual identities as uniform and monolithic categories of shared experience. Movement activists, hungry for change, have seized upon single-axis identity narratives, which offer both an ingrained political resonance and a legally legible framework with the potential to garner formal recognition. In so doing, these movements obscure the unique forms of oppression that occur at the intersections of these categories, perpetuating inequality among multiply subordinated individuals.
In this Article, I draw on the institutional research in sociology to suggest a series of structural dynamics that may further explain the persistence of essentialism in LGBT civil rights agendas and the agendas of similar civil rights movements. Instead of characterizing the marginalization of intersectionally subordinated groups like queers of color as the result of insensitive or strategic decisions made by individual movement leaders, I emphasize the institutional and organizational processes that reinforce patterns of intramovement marginalization. Attributing intersectional subordination to leadership failures, I argue, inaccurately depicts the problem as highly contingent rather than systematic and obscures the structural forces at work. Using specific examples from the context of the LGBT movement, I show how an institutional approach would contribute to current understandings of fundamental aspects of intersectionality theory, including the mechanisms that enable essentialist identity narratives to dominate social movements; how a movement’s institutional context shapes activists’ strategic behavior; and the opportunities for agency that exist for movement actors who hope to create alternative and more intersectionally inclusive movement agendas. I argue that the sociological literature, in addition to adding greater analytical depth to theories of intersectionality, would help to align antiessentialist critiques of identity movements with broader critical race understandings of structural racism.
In a turn to the bizarre Le Miere J in Smadu v Stone [2016] WASC 80 has considered 'Legal personality fiction', the sort of pseudolegalism that entertains later year law students and probably irritates magistrates.
The Court notes that Vlad Smadu was charged that on 6 April 2015 he drove a motor vehicle at 88 km per hour in an 80 km per hour speed zone contrary to the Road Traffic Code 2000 (WA), s 11(3). The elements of the offence are: the accused was the driver of the vehicle; the thing driven by the accused was a vehicle; the accused was driving a vehicle in a speed zone; and the speed of the vehicle exceeded the speed limit for the speed zone in which the vehicle was being driven.
Smadu did not appear at the trial of the charge before the Magistrates Court of Western Australia constituted by two Justices of the Peace. The justices decided to hear and determine the charge in the accused's absence, as they were entitled to do under s 55(2) of the Criminal Procedure Act 2004 (WA). The justices took as proven the allegations in the prosecution notice containing the charge that was served on the appellant. The court convicted Smadu of the offence charged and fined him $100 with costs of $150.80. The appellant was properly convicted.
On appeal against his conviction and sentence Smadu relied on the notion that he has separate legal personalities.
It appears the appellant asserts that one such personality owned the motor vehicle and another held the appellant's driver's licence and drove the vehicle.
The appellant says that the wrong legal person was charged and raises various arguments which appear to be based on the separate legal personality fiction. This is all nonsense. It would be a waste of judicial resources and an affront to the dignity of this court to answer the pseudolegal arguments raised by the appeal in anything but a summary way.
The Court notes 12 grounds of appeal
Ground 1 is that the charge was brought against the wrong legal person/capacity. This ground is based upon the fiction that the appellant has more than one legal personality; that one legal personality owned the motor vehicle and a separate legal personality drove it. This is nonsense.
Ground 2 is that the 'main basis for the argument [the prosecutor] tries to make is incoherent in the transcript due to "indistinct" insertions and it is thus hard to understand that the charge could be proven so quickly'. Despite the notation 'indistinct' which appears on the transcript, it is clear that the prosecutor was referring to the date on which the appellant was served with the prosecution notice and the court hearing notice, that is 12 May 2015. The court proceeded by taking as proven the allegations in the prosecution notice containing the charge that was served on the appellant. It was entitled do so: Criminal Procedure Act, s 55(4)(b). The allegations in the prosecution notice are sufficient to establish each element of the charge. The appellant was properly convicted. Ground 2 has no reasonable prospect of succeeding.
Ground 3 asserts that there was no evidence that the appellant was driving in his capacity under his driver's licence. This appears to be based on the assertion that the appellant has more than one legal personality or capacity. That is nonsense. The ground further asserts in effect that the appellant was not driving the vehicle or it has not been proved that he was. It was alleged in the prosecution notice that the appellant was driving the vehicle and the court took that as proved pursuant to Criminal Procedure Act, s 55(4)(b). It was entitled to do so. Ground 3 has no reasonable prospect of succeeding.
Ground 4 asserts that at the time of the alleged offence the appellant was deriving no benefit or valuable consideration from operating under his capacity under his driver's licence. This is more pseudolegal gibberish.
Ground 5 is that the address of the vehicle registration does not match the address of the court hearing notice and therefore the appellant can only believe that the police department is attempting to create a joinder between the two distinct and separate legal entities. This is a variation on the theme of separate legal identities and appears to be based on some notion that the prosecutor has to establish joinder to link the separate legal identities. This is more pseudolegal gibberish.
Ground 6 is that the infringement notice was sent to a postal address of the owner of the vehicle but the charge was made against the agent holding the driver's licence. This is more nonsense based upon the fiction of separate legal identities.
Ground 7 is that as an agent under his driver's licence the appellant owns no property as he has never received any value or consideration in that capacity. This is more pseudolegal gibberish based upon the fiction of separate legal identities.
Ground 8 refers to notices sent by the appellant 'trying to ask for greater clarity and to correct the record'. The evidence of these letters was not before the Magistrates Court and is not properly before this court. In any event the ground has no reasonable prospect of succeeding. In his letter of 12 July 2015 the appellant makes statements about the charges against him and that he intended to plead not guilty to the alleged offence. The appellant did not appear in court to answer the charges. The matters alleged in ground 8 give rise to no ground of appeal with any reasonable prospect of succeeding.
Ground 9 is that an affidavit was sent on 12 June 2015 to the police department affirming that the vehicle was not being used by an agent under the appellant's driver's licence. This is another ground which appears to be based on the fiction of separate legal personalities.
Ground 10 alleges that the prosecution notice and the hearing notice may be incomplete or defective in a number of respects, including references to WAPS ID and brief number. The prescribed forms for a prosecution notice and the court hearing notice do not include the WAPS ID nor the brief number. The information that is absent does not invalidate the documents. In any event, if there was any procedural defect giving rise to a ground of appeal no substantial miscarriage of justice has occurred. This ground of appeal has no reasonable prospect of success.
Ground 11 is that in light of ground 2 the appellant could not reasonably be certain of the validity or authenticity of the documents. This ground of appeal has no reasonable prospect of success for the same reasons as ground 2.
Ground 12 asserts that the appellant's belief is that the incorrect legal identity was charged potentially in the incorrect jurisdiction. This is more pseudolegal gibberish based upon the fiction of separate legal identities.
And the outcome?
In Suncorp-Metway Limited v Nagy [2008] NSWSC 20 Associate Justice Malpas statedNone of the grounds of appeal has a reasonable prospect of succeeding. If any of them otherwise had any merit, no substantial miscarriage of justice has occurred.
[3] the defendant has filed an unverified “Defence”. It is a document of considerable length with various voluminous attachments. The material comprises a certificate given by Donald Cameron. ...
[7] The contents of the “Defence” throws up comprehension problems. The substance of it looks to and is founded on s 118 of the Commonwealth Constitution. It then appears to proceed on the basis that there exists a Federal State which is called the Independent Sovereign State of Australia (ISSA); and that such an entity is a state within the meaning of s 118 and that there is no jurisdiction to grant the relief sought by the plaintiff. Such matters are in issue between the parties.
[8] Save for the material contained therein which addresses this matter, the “Defence” does not put in issue the allegations made by the plaintiff in the Statement of Claim.
[9] There was a related matter. It concerned a purported tender of a cheque from what was said to be the Federal State Bank of ISSA. The plaintiff joined issue on the validity of such a tender.
[10] This matter was dealt with by Kiefel J in Australian Prudential Regulation Authority v Cameron & Anor [2007] FCA 628. Her Honour made orders restraining the defendants from, inter alia, carrying on any banking business in Australia. Her Honour took the view that there had been breaches of provisions of the Banking Act 1959 (Cth). In her judgment, she observed as follows:-
“This is not the first time that such an argument has been raised in Australian courts. Goldberg J, in Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (2001) FCA 1062 at [28], pointed out that the Commonwealth Constitution recognises the Commonwealth and the States and Territories as the only entities in the federal polity known as the Commonwealth. An area of land cannot cease to be part of a State, except pursuant to s 123 of the Constitution. There are no other constitutional means available for the establishment of a separate political community in Australia. The property said to be that of the independent sovereign state here, upon which the bank conducts its business and in respect of which Mr Cameron and Mr Wheeley are said to be citizens, remains part of Australia.”
[11] The defendant has purported to rely also on documentation which presents as being from the “Federal State Supreme Court” (an alleged institution of ISSA). One of the defendants in the case before her Honour (Donald Cameron) is presented in that documentation as being the Chief Justice of that Court. The documentation purports to present Donald Cameron as dealing with an appeal from the decision of her Honour and holding that her order was “unconstitutional, oppressive and corrupt”. I do not regard this documentation as giving any support whatsoever to what is advanced by the defendant.
[12] It was common ground that the real issues between the parties during the hearing was whether or not the defence gave rise to an arguable issue. In my view, it clearly did not do so.
[13] I consider that the contention sought to be advanced by the defendant is plainly unarguable (for reasons both of fact and law). In my view, inter alia, it is unarguable to suggest that the alleged ISSA is an entity that falls within the meaning of “state” as it appears in s 118.
Quirk DCJ in Millmerran Shire Council v. Smith [2003] QPEC 68 states
[3] The respondent is the Chief Executive Officer of a community known as God’s State (Federal State) Independent Sovereign State of Australia (herein referred to as ISSA). It is contended that the subject land forms part of an independent sovereign self government.
[4] The respondent’s material and argument placed before the court comprise the affidavits of the respondent sworn 23 October 2003 and Mr Donald Cameron sworn 18 October 2003. The submissions contained in those affidavits are difficult to understand or to crystallise into propositions. Notwithstanding this, I understand the submissions to be as follows: (a) As a citizen of the ISSA the respondent is not subject to the laws of the Commonwealth of Australia, including the laws of Queensland; (b) The Integrated Planning Act 1997 (Qld) is invalid pursuant to sections 109, 116 and 118 of the Constitution of Australia; (c) The Integrated Planning Act 1997 (Qld) is invalid pursuant to Article 18 of the Universal Declaration of Human rights; (d) The Integrated Planning Act 1997 (Qld) is invalid pursuant to Part I, Article I and Part II, Article II of the International Covenant of Civil and Political Rights 1966; and (e) A finding of the Southport Magistrate’s Court in December 2002 gives rise to an issue estoppel, an estoppel by res judicata and an estoppel by representation.
[5] In dealing with the first submission, it is clear that the Constitution of Australia recognises that the States and Territories are the only entities in the federal polity known as the Commonwealth of Australia. It then follows that an area of land cannot cease to be part of, or be excised from, a State in the Commonwealth of Australia unless the Constitution of Australia provides for the alteration of the limits of that State: ACCC v Purple Harmony Plates Pty Limited [2001] FCA 1062. The power to alter the limits of States is to be found in section 123 of the Constitution of Australia.
[6] Section 123 grants the Federal Legislature power to increase or diminish the limits of States; there are no other constitutional means available for the establishment of any separate political community in Australia: ACCC v Purple Harmony Plates Pty Limited (supra). The respondent was unable to place any material before this court that would satisfy the requirements of section 123 of the Constitution of Australia. Accordingly this submission must fail.
[7] The Constitutional points (item (b)) raised by the respondent are nonsensical and, in my view, do not raise any issue which involves the interpretation of sections 109, 116 and 118 of the Constitution of Australia. At best, even if one was to assume that section 116 could apply to strike down State legislation (namely the Integrated Planning Act 1997 (Qld)), the Act does not prohibit religious observance or the free exercise of any religion. I note that a similar approach was taken by the Queensland Court of Appeal in Cameron v Beattie & Ors [2001] QCA 392.
[8] A vague reference is made in the affidavit of Mr Cameron to the Universal Declaration of Human rights and the International Covenant of Civil and Political Rights 1966 in support of a contention that the Integrated Planning Act 1997 (Q) is invalid. How the Act infringed respect for these treaties was never explained. It is my view that the Act does not prevent religious observance as contemplated by Article 18 of the Universal Declaration of Human Rights, nor does it prohibit the right of self determination. These submissions are nonsensical and in my view do not raise any issue which requires this court to undertake any analysis of either treaty. This submission must also fail.
[9] Finally, a vague reference is made in the respondent’s submission to a decision of the Southport Magistrate’s Court. The reference appears as follows:
“MAGISTRATES COURT SOUTHPORT 05/12/02 (inter alia) The independent Sovereign State of Australia’s geographical jurisdiction is the foreshores of Australia and therefore the Gold Coast City Council has no authority over....either individually or other citizens of the Independent Sovereign State of Australia.”
[10] I reject the respondent’s submission that this decision gives rise to an estoppel of any form as the Millmerran Shire Council was not a party to the action. It could not be said that an action, to which the Shire was not party, could support an estoppel. Accordingly this submission must also fail.
