More sovereign citizen hocus pocus addressed in Simon v Chief Executive of the Department of Corrections [2022] NZCA 222.
Simon is currently detained at Spring Hill Corrections Facility, facing a number of sexual and violence charges. In December 2021 he applied for a writ of habeas corpus, dismissed by Venning J.
The Court of Appeal states -
[4] Mr Simon argued that there is a distinction between himself, as a “natural person” and the “legal person/corpus body” named in the warrant. From Mr Simon’s assertions that he could not be compelled to enter into any contract, we infer that he regards the authority of the court as a matter of consent by him and that since he does consent to be bound by the authority of the Court, the warrant is not a valid basis on which to detain him.
[5] Arguments similar to this, based on the concept of the “ sovereign citizen ” are regularly made in New Zealand courts. However, they have no legal basis and cannot succeed. All persons in New Zealand are subject to the laws made by the New Zealand Parliament and to the authority of the courts in enforcing those laws.
In a presentation last month I commented
In talking about how sovereign citizenship operates – quick answer, not very well – and how it is supposed to operate I am going to suggest that the adherents are engaging in magical thinking. Their misplaced belief is that a bit of abracadabra and a dash of hocus pocus will force the justice system to do what individual sovereign citizens want. In that sense sovereign citizenship is just as much a matter of psychology as it is of law.
I’m going to wrap up by identifying why we might care about the sovereign citizen phenomenon and about how the justice system responds to the abracadabra.
So, what is sovereign citizenship. Here’s a quick picture.
Sovereign citizenship is new. It is confusing. And – sorry – it is nonsense. As I will discuss shortly, it is being propagated online and through ‘how to become a sovereign citizen’ handbooks or even cottage industry style courses. Selling nonsense can be a profitable business.
In part sovereign citizenship is a function of a broader ‘rights talk’ over the past thirty years, an identitarian politics imported from the United States with an emphasis on rights and a neglect of responsibilities.
Sovereign citizenship involves people asserting that legal obligations do not apply to them unless those people agree to them. It also involves the self-identified sovereign – a sort of walking talking national government – having a right to benefit from facilities and services provided under law that is convenient to them. Proponents of sovereign citizenship accordingly think of law as a sort of smorgasbord: take what you like, reject what you don’t like and by the way don’t worry too much about the bill.
Here is an easy example. Mr X claims that as a sovereign citizen he is not obliged to stay within the speed limit or wear a seat belt or pay parking fines. Mr X however takes it as a given that he can use public roads and carparks, use water provided by local government, get respect for his property, enforce contracts with other people and be protected from defective products.
I will explain shortly about where the sovereign citizen abracadabra comes in and why we all might be unhappy with that nonsense.
It is common for people to say that law should not apply to them, particularly where the law imposes some sort of disadvantage or obligation. That isn’t surprising: few of us are likely to be jumping with joy about paying more tax.
It is less common for people to say that law actually does not apply to them, simply on the basis that they do not like it.
One of my favourite examples is the case of Eilish D’Avalon, a wiccan in Victoria.
D’Avalon was pulled over for speeding a couple of years ago. She told the traffic cop "Your laws and penalties don't apply to me. I'm not accepting them, I'm sorry, I must go, thank you". She drive off with the Senior Constable’s arm caught in her driver's side window, dragging him for nearly 200 metres.
D’Avalon offers what she characterises as ‘healing services’. Presumably she believes in what she says, just like the protestors at EPIC earlier this year who thought the Australian Federal Police were using blow pipes to inject them with 5G microchips. Don’t blame the mosquitos in the swamp near EPIC, blame cops with satanic pipes.
D’Avalon explains
I come from a long line of Hungarian/Transylvanian intuitive clairvoyants and I've been psychic all my life. I am clairvoyant, clairaudient and clairsentient which means I have psychic vision, hearing and feeling and can see auras, spirits and can communicate with them too. ...
I have consulted famous people, helped police in their missing persons/homicide investigations and often commune with deceased loved ones in the spirit world because I am a gifted spirit medium too. ... My six month previews are also very popular. I'm an eerily accurate, profound clairvoyant and I invite you to have a reading with me, if you are not happy, you don't have to pay!
I am an experienced advanced spiritual healer, Reiki Master, colour therapist, chakra and auric diagnostician and can help when you are feeling out of kilter but can't put your finger on the imbalance or when you just feel like a pick-me-up. I also do clearings of a more serious nature when entity removals are needed or when the soul is fragmented when your power has been given away or taken from you.
As someone who teaches consumer law I do wonder about the effectiveness of that claim when the police and courts eventually took the car keys, rather than the astral power, away from her. Presumably the spirits were having an off day when it came to the six month preview: ‘Elish, Eilish, this is your Cleopatra telling you don’t go out today, because the traffic cop is going to clock you’.
When asked to produce her driver's licence D’Avalon had replied that she did not have one. Asked why not, she said
I am a being from another world and don't require one. Your laws and penalties don't apply to me. I'm not accepting them, I'm sorry, I must go, thank you.
Marks for politeness but not for legal persuasiveness.
When asked to state her name and address D’Avalon replied ‘I have a universal name that is not recognised here’.
Unsurprisingly the court was not impressed by D’Avalon’s claims. Courts have similarly been underwhelmed by a growing number of sovereign citizens.
So what’s the nonsense about, where does it come from and how does it operate.
I referred to our wiccan because there have always been people in Australia who believe that law does not apply to them. I have a book chapter coming out soon where I unpack claims by a range of scammers and other people who either said they were exempt from specific law, for example about dodgy financial services and health products, or more entertainingly that they were exempt from all Australian law.
Usually that claim was based on an assertion that they were an independent country that either just happened to be located within Australia or instead was based in outer space. Some of the people were overgrown teenagers, having fun inventing a national flag and declaring independence and awarding themselves glorious titles. Usually they were kings or emperors. One enthusiastic Tasmanian modestly claimed to be a grand duke, viscount, earl, cardinal and archbishop. He apparently gave himself a doctorate in sacred theology and a doctorate in divinity. David Hume must be rolling in his grave with laughter like a rotisserie chicken at that lot.
The claims have no effect, other than getting an occasional interview in the Sydney Morning Herald at the weekends. Australian governments say no when your little kingdom, which isn’t recognised by anyone except your dog or an over-indulgent mum, starts to run an unregistered bank, issue its own currency, engage in a spot of money laundering or otherwise take itself far too seriously.
The Tasmanian grand duke for example ended up as a bankrupt after the government eventually took action. His assertions of sovereignty – a legal status in which he wasn’t subject to anyone’s rules except his own and which was recognised by other countries – were ineffective in court.
There is a long history of people calling for secession from the British colonies or advocating that an Australian state or region – goodbye Western Australia and Far North Queensland, hello Capricornia – either leave the Commonwealth or gain statehood, for example the state of Riverina or New England. Those calls become loud in times of economic crisis or major social change and die down when times improve or inertia takes hold.
Our sovereign citizens have a traditional grumble about obligations and authority. What is new about them is their magical thinking – for example a belief that if you express your name in capital letters conventional law no longer applies – and claim that individuals are sovereign, able to enjoy a legal smorgasbord.
In essence, a sovereign citizen might be both a citizen of Australia (accordingly entitled to a passport, public education, welfare and other support) and a citizen of a one-person nation. Put ten sovereign citizens in a room and you supposedly have ten independent nations, although none of those nations have recognition by the Australian government or by other nations such as New Zealand, the United States, the People’s Republic of China and Canada. That recognition and the ability to engage in self government are the two tests of true sovereignty.
What do our sovereign citizens want?
The answer to that question isn’t clear.
Sovereign citizenship does not involve a particularly coherent set of principles and objectives.
I mentioned Western Australia a moment ago. In recent years we have seen the very small and very quirky New Westralia movement, whose members do have a coherent ideology and objectives. They want to set up a theocratic state in Western Australia. It will be very protestant. It will embody values popular in a time when witches were burnt at the stake. It will revere Queen Elizabeth. The New Westralians gained public attention when they broke into an unused courthouse in Western Australia and asserted their independence, in other words attempted to secede from Australia. After a few hours the rather puzzled police moved in and the secessionists were arrested, with charges of trespass and damage to property. Neither god nor Queen Liz came to the rescue.
In contrast, Australian sovereign citizens do not appear to be aiming to set up a millennial kingdom ahead of the End Times or – unlike some of the more frightening radicals in the United States – aiming to set up some sort of Aryan republic (possibly with a dash of polygamy and a bit of slavery) in a remote rural location.
Our sovereign citizens instead appear to want to engage in a sort of pick and choose. They want convenience. They want a private smorgasbord, but not one to which we get an invitation.
By that I mean they appear to expect that they can enjoy rights – some of which are fictitious – without obligations that are inconvenient.
If we look at sovereign citizen chatter on social media or appearances in court we can see assertions that people should be able to settle disputes through trial by combat, typically using a blood axe rather than pistols at dawn. Those assertions are often ostensibly justified by reference to ‘traditional law’. It is an invented tradition, perhaps attributable to enthusiasts watching too many episodes of the Vikings.
Other people a bit more persuasively claim that any hearing by a magistrate is illegal, because the national and state governments have no authority and because the only valid trial is one involving a jury of your peers, ie decision-making by a group of fellow sovereign citizens. Those sort of claims are ostensibly justified by reference to Magna Carta (which in reality did not give rights to most people) or to some sort of eternal Anglo-Saxon law that in reality disappeared soon after 1066.
It is common for sovereign citizens, just like us, to buy residential property, drive cars, use the welfare system, buy insurance and borrow money from banks. They differ from non-sovereigns when something goes wrong and there is inconvenience. A typical problem is borrowing. The bank demands payment of the loan. The sovereign citizen says no no no, the loans is unenforceable because law is unenforceable. Why is that law unenforceable?
One assertion is that government per se is illegitimate, so that sovereign citizens – who are somehow much better informed and smarter than the rest of the population – can choose not to obey. The supposed illegitimacy might be a matter of Queen Victoria signing the wrong bit of paper more than a century ago. It might instead be a matter of the Commonwealth being a company incorporated in the US state of Delaware and therefore any bank or other enterprise licensed by an Australian government or operating under Australian law being invalid.
Just like the clairvoyant wiccan, some sovereign citizens experience inconvenience on the roads. There have for example been a succession of court cases where people have been penalised for driving without a licence, driving an unregistered vehicle, driving a defective vehicle or simply ignoring the speed limits. In court – sometimes very ironically involving a succession of appeals – the sovereigns have claimed that they are exempt from the relevant legislation and therefore cannot be penalised because as sovereign citizens they get to choose which law they comply with and which law they get to ignore.
I say ironically because we see people litigating – always unsuccessfully – in courts and tribunals whose authority they usually deny. On occasion that means courts deem them to be vexatious litigants, in other words refusing to hear them on the basis that the claims are clearly nonsensical and a deliberate waste of the courts time.
Not all sovereign citizen disputes involve conflict between government and the supposed sovereigns. Some disputes involve disagreements between neighbours – pray that you are never faced with an angry sovereign citizen who is uptight about your hedge – or disregard of environment protection rules such as prohibitions on burning lots of truck tyres on a property near your home.
How do they operate?
Religion typically assumes a powerful supernatural entity whose aid can be invoked through prayer or signs of obedience through sacrifices, human or otherwise. We ask god to be merciful. We ask god to smite our enemies, engage in genocide of the heathen or merely inflict boils and infertility on those individuals who have wronged us.
Magic is different. It is independent of religion. It is predicated on the idea that nature can be compelled to obey us if we command it in the right way. Your enemy will drop dead or lose her hair or otherwise have a miserable time if you or a contractor – a magician for hire – use the correct rituals, write or speak the correct words. Magic is about exercising power, rather than begging the almighty for mercy or support.
Courts dealing with sovereign citizens have often expressed their exasperation by characterising sovereign citizen claims as nonsense, gobbledygook, unintelligible, disrespectful or simply absurd. In trying to understand sovereign citizenship we can however understand it as involving magic. It is a matter of spells, spells that are meant to uniquely override law and compel banks, police, magistrates, the Australian Taxation Office and other entities to do what the particular sovereign citizen wants to do. As I have indicated above, what the person typically wants to do is to get out of a jam.
So, what does the spell making look like?
There is some consistency in arguments by Australian sovereign citizens if you dig through what are often very convoluted, very long and largely irrelevant documents they present in court. That consistency reflects copying of what the citizens see in court when they watch other citizens arguing, even though the arguments are not effective. It also reflects guidance that circulates on social media and in ‘training sessions’ provided on a free or for profit basis by supposed experts, particularly scammers from the United States and Canada. I say ‘scammers’ because these experts have not been successful in Australian courts and must know that their magic just does not work.
Overall we can see a couple of things.
One is the argument that a sovereign citizen has two simultaneous existences, what is sometimes characterised as the straw man argument. One is their living body, the thing you see face to face and indeed might be put in the paddy wagon or handcuffs after a riot. That person has free will and independence, based on a religious text or a fantasy about Magna Carta or some other superseded law. The other existence is their supposed legal personality, an identity that might be signified by for example a customer number or tax file number or medicare number. You can think as resembling a set of clothes: put them on, take them off, throw them away.
Sovereign citizens accordingly argue that when they choose – this is the nub of sovereignty – they can simply disregard any obligations that involve that legal personality. The living body is in principle not liable for anything that the legal body does unless the natural body agrees to it … and the living body can retrospectively walk away from past agreements.
A corollary is that law – whether overall or in relation to specific obligations, such as repaying a loan or wearing a seatbelt – can be magicked away if people characterise themselves in ways that signal they are living bodies rather than legal bodies. How would you do that signalling? You might rely on expressing your name in all upper case. You might hyphenate your given and surnames and even add terms such as living body to your name.
I have referred to convenience, given that sovereign citizens apparently don’t use that abracadabra in ordinary documents. They leave it for when they are heading into court or contesting an administrative decision. There is considerable uncertainty about this and it is unclear whether banks, insurers, government agencies and others are using what one friend characterises as a moonbat filter, in other words rejecting a credit application where the potential borrower identifies herself as a living person.
We can also see abracadabra – think of it as a triumph of hope or desperation over cold hard reality – in documentation in court that asserts either the court or another entity, such as a lender or the state government, has no authority. Just like D’Avalon, ‘your law does not apply’. That documentation often relies on a US template, think of it as a sort of playbook, and assertions about rights that have never been recognised or past judgments that are no longer relevant. In many instances it appears to involve references to judgments that the sovereign has not understood and indeed probably has not read.
That is a type of magic, with an expectation that meaning is not relevant. Success instead is a matter of putting a spell on the court by applying a long document (often with colour and formats that have a significance unknown to mere legal practitioners) that feature special words. Abracadabra in itself has no meaning. Saying or writing it, however, gives the magician power. If you are a magician you do not need lots of money. You do not need tertiary qualifications. You do not need an alfoil beanie. You do not need a lawyer … which is one reason why most of the cases involving sovereign citizens involve self-represented litigants. As law students hear in their first year, that is a recipe for pain.
On that basis we might understand sovereign citizenship as a matter of unhappy and resentful people feeling good about themselves by having a sense that they – unlike the cops and officials and lawyers and smartypants with university degrees – have a superior knowledge and deserve respect. As you will have realised by now, that is a recipe for frustration and overall we should be very impressed by the courtesy with which Australian courts manage sovereign citizens.
I’m going to wrap up by asking whether we should care about enthusiasts for abracadabra but first want to highlight how the legal system is responding. That’s the best demonstration that magic fails.
Responses
At perhaps the most visceral level sovereign citizens who have thumbed their nose at the law in Australia have experienced arrest, fines, loss of licences, bankruptcy, seizure and forced sale of land or other assets. In disputes with sovereign citizens the banks and the Australian Taxation Office win.
As I indicated earlier, we do not have case law in which domestic sovereign citizens engage in litigation and as a result of the hocus pocus emerge triumphant. That history of failure should deter some potential litigants but clearly does not convince all true believers. Importantly, it may shift believers to more dangerous beliefs.
We can see persistent sovereign citizens being excluded as vexatious litigants – sorry, you are a pest, you are an oxygen thief, you do not get to waste everyone’s time with your magic in this court. At a softer level, some sovereign citizens are likely to be marginalised on the basis of negative credit profile.
Should we care about sovereign citizens?
Sovereign citizenship is not a recognised psychiatric disorder. It does not appear in the DSM 5, the standard diagnostic manual. It does not attract special support under the national health scheme.
It might be absurd or perplexing but is not illegal. In Australia there is no comprehensive right of free speech, alongside a right to bear arms (guns or shirtless). Sarcastic law academics might conclude that in a liberal democratic state there is an implicit freedom to be deluded, even zany, as long as you obey the law.
We can regard sovereign citizens as amusing oddities, up there with people who think that NASA faked the moon landings or that Elvis is alive and well and flipping hamburgers in Tuggeranong. I suggest however that there are some real concerns about the strange people.
One reason is that it can be very uncomfortable dealing with a sovereign citizen neighbour, someone who for example believes that law about what can be done in a back yard or neighbouring apartment or adjacent farm is entirely up to them. My land, my rights, my choice of law says our sovereign citizen who chooses to burn truck tires on the fam and take a pot shot or two at the environment protection officer who comes to inspect.
Another reason is that if you are business you might end up dealing with someone who believes that contracts are just smoke if things go wrong. Law in Australia is ultimately about trust and we want things to work.
As we head into another variant of COVID we might be concerned about sovereign citizen thinking bleeding into nonsense about global conspiracies regarding vaccination – cops with blowpipes, six foot tall green skinned lizards running the Reserve Bank, jabs turning kids into cultural Marxist zombies – and thereby encouraging public disorder. There is considerable research to the effect that people with exotic views are receptive to additional nonsense rather than restricting themselves to one set of gobbledygook.
Overall sovereign citizenship isn’t organised. I don’t think we are going to see an army of sovereign citizens or a systematic sovereign citizen movement, with or without blood-axes and Palmer-style candidates in every electorate. We might however see what are sometimes described as lone wolves: someone who is very resentful, very aggressive, very frustrated that the abracadabra is not working and who acts out that frustration with a knife or bomb or gun.
It is useful to remember that the Lindt Café killer appeared in court numerous times and started as a commercial practitioner of black magic, including mumbo jumbo involving the sacrifice of chickens.
As someone who teaches law I am interested in the costs to the justice system. Sovereign citizenship claims have been uniformly unsuccessful. Put bluntly, the abracadabra does not work and is never going to work. It does however chew up substantial time in court (and in action ahead of litigation) and diverts law enforcement from worthier tasks. Those costs are currently unidentified but in aggregate are unlikely to be trivial.
Wrapping up
In conclusion I want to offer a rather disquieting thought. Tonight I’ve been dismissive of magical thinking on the part of sovereign citizens – their faith in incantation of a sort of abracadabra to make liabilities go away and make inconvenient realities bend to their will. What is disquieting is that many people, who do not have a quarrel with the law, probably have much the same sense of rules as sovereign citizens.
Bette Midler, in a film about witchcraft and wonder called Hocus Pocus, sings
I put a spell on you
And now you're mine.
You can't stop the things I do.
I ain't lyyyyyin'.
As a society it is clear from a number of studies, including major research from the ANU in 2020, that many people think that politicians are lyyin and lyyin and lyyyyin. Many people apparently believe that at least one prime minister has lacked a moral compass. It is unsurprising if people are disengaging from mainstream political parties and susceptible to nonsense peddled by extremists or worm medicine enthusiasts such as Clive Palmer. Reception of that nonsense might be a function of disillusionment or because the belief is empowering or because the nonsense offers a comfortingly simple map of the world.
Ultimately many people think that law is a matter of mumbo jumbo, abracadabra by people in robes and wigs. They obey the law, without full comprehension because it is normative – their mates are obeying – and because it is convenient. It would take a lot of effort if you replaced set of magic with another set, and that would get in the way of feeding the kids, taking to dog for a walk or watching the footy. Perhaps better education and some laughter is one way to deal with most sovereign citizens.
