Bail

The ACT Government has released a discussion paper regarding the review of decision-making criteria in the Bail Act 1992 (ACT). 

The paper states 

 The ACT Government recognises the impact of bail decisions on defendants, victims, witnesses, and the broader community’s perceptions about the justice system. The ACT Government acknowledges the work undertaken in the 10th Legislative Assembly committee by the Standing Committee of Justice and Community Safety and its report Inquiry into the Administration of Bail in the ACT. The submissions to and discussion and recommendations within that report have informed the Government’s position and this discussion paper. The ACT Government believes that bail law modernisation and reform is highly desirable and intends to introduce legislation amending the Bail Act 1992 as soon as practicable. ... 

Objectives of the reform 

Reforms to the Bail Act 1992 are being approached with the following direct objectives sought: • Provide greater clarity to decision-makers about what considerations are to be taken into account when deciding a bail application; • Maintain the independence and discretion of decision-makers when deciding a bail application; • Maintain procedural fairness and consistency with the ACT Human Rights Act (2004); and • Elevate the concept of do no further harm to both the alleged victim(s) and the accused person when deciding a bail application. 

Notwithstanding the intersectionality and relevance of resources, investments, and supports that are otherwise outside this reform’s scope, particular regard is given to these further objectives: • Enhance confidence and trust in the justice system; • Reduce the high rates of remand and recidivism; and • Address the significantly high rates of incarceration of Aboriginal and Torres Strait Islander people. 

Background 

Bail decisions are a high volume, significant component of our criminal justice system and it is vital that the law is clear and accessible. Until 1992, bail laws in the ACT were set out in various pieces of legislation. This made it difficult to identify the rules that applied to their specific circumstances. The Bail Act 1992 was enacted to consolidate, modernise and simplify the law relating to bail for young people and adults. 

While there have been several amendments to the Act since, the most recent significant changes occurred in 2004. 

An accused person has a right to the presumption of innocence and a right to liberty. These rights mean that a person cannot be detained as punishment for a crime they are accused of committing prior to trial and that pre-trial detention is intended as an exceptional, not standard, measure. 

Bail is an undertaking that the accused will appear before court on a later date, and can be subject to conditions. Where an application for bail is not granted, an accused is remanded in custody. There are individual, financial and justice sector direct and indirect costs when the accused person is remanded in custody. Accused persons and their families suffer the hardships of incarceration without being convicted of an offence. Pre-trial detention and remand can contribute to likelihood of future offending. Because incarceration is criminogenic in nature, , an accused remanded in custody is then at increased risk of reoffending, which ultimately does not make the community safer. 

The real net operating cost of a detained adult in prison in the ACT in 2023-24 was $618 per person per day. With up to half of the prison population on remand, around $40 million is spent annually detaining adults on remand. 

These costs need to balanced with and considered in the context of the rights of victims; the need to mitigate the risk of further harm; the importance of community safety; the availability of support services and enforcement resources; and the most effective use of Government resources and funding to achieve its justice objectives. 

Basics of the Bail Act 1992 

Applying for bail 

In the ACT, a person arrested and charged with a criminal offence is entitled to apply for bail. Persons who can grant bail are authorised officers (the Chief Police Officer and delegated police officers) and courts (Magistrates Court or Supreme Court). 

The Bail Act sets a number of obligations on the arresting or the charging police officer about the granting of bail and ensuring the accused is aware of their rights. Where the authorised officer cannot or does not grant bail, the accused must be brought before a court as soon as possible, and the court is required to consider the application as soon as possible. 

Framework for decision-makers 

The Bail Act provides a legislative framework for how bail applications are to be approached by decision-makers. 

The decision-maker must consider any presumptions that apply and, where applicable, the criteria for granting bail to adults (section 22 of the Bail Act) or children (section 23 of the Bail Act). The information before a court is provided by the prosecution (which will include information provided by the police), defence and any additional information from other relevant sources such as ACT Corrective Services or a health professional. 

The bail decision requires the balancing of all the information and factors before the decision maker. 

Presumption for bail to be granted 

• For certain minor offences, an accused is entitled to be granted bail in most circumstances; • For offences other than minor offences, an accused is entitled to be granted bail unless the court or authorised officer is satisfied that refusal is justified after considering specific criteria, including applicable presumptions (also set out in the Act). 

Neutral presumption about whether bail should be granted 

For some specific offences, the Bail Act provides there is not an entitlement for an accused to be granted bail—and nor is there an entitlement for them not to be granted bail. 

Presumption against granting bail 

For some specific offences, the Bail Act provides that bail must not be granted unless the authorised officer or the court is satisfied that special or exceptional circumstances exist that favour bail being granted. However, even if those special or exceptional circumstances are established, the court or authorised officer must refuse bail if they are satisfied that refusal is justified after considering specific criteria (also set out in the Act). 

Dispensing with bail 

A court may also decide to release an accused person from custody without requiring bail. The accused person is entitled to be and to remain at liberty in relation to the offence until the person is required to appear before a court in relation to the offence. 

Criteria for decision-makers to consider 

The criteria for granting bail under section 22 or 23 of the Bail Act require the decision-maker to consider the likelihood of certain things occurring such as the person appearing in court or committing an offence. When making that decision, the decision-maker may also consider any relevant matter, including the nature and seriousness of the offence, the person’s character, background and community ties, and any previous grants of bail. 

In more detail: In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider— (a) the likelihood of the person appearing in court in relation to the offence; and (b) the likelihood of the person, while released on bail— (i) committing an offence; or (ii) harassing or endangering the safety or welfare of anyone; or (iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and (c) the interests of the person (such as the need for the person to have physical protection, or the period with which a person may be held in custody if bail is refused and the conditions under which they would be held) 

The Bail Act provides that the court or authorised officer may also have regard to any relevant matter, and includes: (a) the nature and seriousness of the offence; or (b) the person’s character, background and community ties; In this context, a prosecutor must tell the court about any concern a victim may have expressed about the need for protection from violence or harassment by the accused. (c) the likely effect of a refusal of bail on the person’s family or dependants; or (d) any previous grants of bail to the person; or (e) the strength of the evidence against the person. 

Within the Bail Act, a victim is defined as: (a) a person (the primary victim) who suffers harm— (i) in the course of, or because of, the commission of an offence of which the accused person is accused; or (ii) in the course of assisting a police officer in the exercise of the officer’s power to arrest the accused person or to take action to prevent the commission of an offence of which the accused person is accused; or (b) if a primary victim dies because of the commission of an offence of which the accused person is accused—anyone who was financially or psychologically dependent on the primary victim immediately before his or her death. 

Bail conditions 

Bail can be granted without conditions or with conditions. 

When bail is granted with conditions, those conditions can include one or more of: • conditions about the accused person’s conduct while released on bail, such as a requirement that: o the accused person report periodically, or at specified times, at a stated place; and o the accused person reside at a stated place; and o the accused person undergo psychiatric treatment or other medical treatment; and o the accused person participate in a program of personal development, training or rehabilitation; and o the accused person accept supervision or comply with any reasonable direction (such as undertaking a mental health assessment or other program). Note: further specific conditions are applicable where a person has been charged with a family violence offence. • a condition that the accused or another person gives a security of payment, or otherwise pays a stated amount, if the accused person fails to appear in court in accordance with his or her undertaking. 

Release on bail 

An accused person may be released on bail only if the person gives an undertaking to appear before a stated court at the place, date and time that’s provided to them by a police officer or written or recorded in an undertaking before a court and to comply with the bail conditions (if any). 

An accused person commits an offence if they give an undertaking to appear before a court and fail to carry out the undertaking. 

Issues with Bail Act operation 

The ACT Government respects and will maintain the independence and discretion of decision makers. The following discussion relates to options for how the framework for decision-making could be improved. 

While the decision-maker may take into account any relevant consideration, and a court can be proactive in the information it seeks, pressures such as time or urgency may limit relevant considerations being sought and/or being given appropriate regard. 

The following discussion outlines the evidence and observations reflected in submissions to the ACT Government and ACT Legislative Assembly Committee inquiries, as well as data, research and sentiment. Issues on which the ACT Government is seeking views and possible reforms are outlined, with questions to prompt responses. 

How bail criteria are framed in the Act 

When first in force, the Bail Act set out the criteria for granting bail to adults with matters in the categories of: • probability of the person appearing in court in respect of the offence; • interests of the person charged; and • the protection of the community. 

While elements of these are still reflected in the current criteria, these ‘arms’ of thematic considerations are not set out as clearly. In that vein, the Government is of the view that there may be value in clearly setting out the key categories or lenses through which a decision-maker should be considering relevant criteria. For example, by recognising the rights of the victim and the accused, and the principle of doing no further harm to either, and through a broader lens regarding community safety and justice integrity. These categories can be summarised as: • interests of the victim; • interests of the accused; and • interests of community safety and justice integrity. 

There is no hierarchy of these interests; no consideration is to supersede another. Rather, they could serve as a stronger framework setting for the relevant considerations for a decision-maker in deciding whether to grant bail.

The paper features the following questions 

Q1. What are the risks or benefits in providing for a clearer framework of considerations for the decision-maker as outlined above? 

Q2: Should a victim’s concerns that need to be taken into consideration be broader than what is currently legislated? If so, what would be an appropriate expansion? 

Q3: Is there value in a criterion which reflects victims’ views and knowledge more broadly? If so, should this be in addition to or instead of a “risk of harm” criterion? 

Q4: Should decision-makers be specifically required to have regard to the presence of established risk factors when deciding a bail application in the context of a domestic and family violence offence? 

Q5: If so, if an FVRAT has been completed by ACT Policing, should it be provided as a relevant consideration that the decision-maker needs to have regard to? Or, is there another tool which could be used instead of, or in addition to, an FVRAT?

Q6: Where a victim dies because of the commission of an offence of which the accused person is accused, should the definition of victim be expanded to include immediate family members, rather than only persons who were financially or psychologically dependent?

Q7: Is this provision in the Victorian legislation appropriate for the ACT context? Can it be improved? 

Q8: Should an accused being a primary carer or pregnant be a relevant consideration for a decision-maker in deciding to grant bail? If so, what form should the provision take?

Q9: Should an accused person’s disability needs, health needs and relevant related circumstances be required to be considered by a decision-maker in deciding whether to grant bail? If so, what form should the provision take? 

Q10: Should the legislation contain a specific provision requiring a court to consider a written submission from police in its decision-making? 

Q11: With the nature and seriousness of an offence already provided for as a relevant consideration, should this be expanded to include the prevalence of the offence? 

Q12: Are the types of risks that a decision-maker is required to assess the likelihood of sufficient for the purposes of granting bail? 

Q13: Should a person’s actions (including breaches of conditions; further offences etc) while on any previous grant of bail (or subject to other conditions imposed by a court) which has now been disposed of be a relevant consideration for a decision-maker? 

Q14: Is it useful to continue with having some criteria being required to be considered and others which may be taken into account? If so, should there be any changes? Or, should all criteria be relevant considerations that need to be given appropriate regard? How could decision-makers and persons appearing before a court be supported so that all evidence relating to the criteria is available? 

Q15: What further information or specificity could be provided in the bail conditions which would ensure their enforceability? 

Q16: Are there reporting sites for bail other than police stations that might suit other persons with particular vulnerabilities or needs that should be an option as part of a bail application process? 

Q17: Should the ACT Government consider extending electronic monitoring to be a potential bail condition? If so, should it be limited to particular offence types? 

Q18: Of the bail criteria and conditions discussed in this paper, should any be specifically applied or be a consideration in matters that involve children and young people who are accused of a crime? Should any specifically not be a consideration in matters that involve children and young people accused of a crime? 

Q19: In considering the effectiveness of and complexity of presumptions, should there be reform in this area with regard to children and young people?

Surveillance

'COVID-19 Sewage Testing as a Police Surveillance Infrastructure' by lizabeth E Joh in (2021) Notre Dame Journal of Emerging Technologies comments

Sewage has become a COVID-19 tool. American colleges and universities have struggled to cope with the COVID-19 epidemic as students returned to campus in 2020. Most colleges are unable to provide widespread testing and contact tracing. Testing all students, faculty, and staff on a campus is prohibitively expensive. As a result, many colleges and universities have turned to a different approach. Those infected with COVID-19 shed viral particles in their waste. Evidence of these viral particles can be tested by sampling wastewater. Testing sewage offers a reliable method for identifying outbreaks cheaper and easier to administer than a mass testing and contact tracing program. And as COVID-19 is likely to affect the population well into 2021, state and local governments have considered or started sewage testing. But emergency measures have a tendency to stick around after the crises that prompted them diminish. COVID-19’s public health crisis will end. But the incentives to monitor wastewater will continue. This Essay argues that sewage testing will outlive the pandemic and become a part of a general policing surveillance infrastructure. We risk adopting this surveillance without care taken to the legal and policy questions raised by its use.  

Independence

In Australia and New Zealand Banking Group Limited v Oldroyd & Anor [2025] NTSC 20 the defendants unsuccessfully argued Court lacked jurisdiction because they had diplomatic immunity as heads of a diplomatic mission for a sovereign nation of Aboriginal people and that they were only bound by tribal laws or religious laws. The Court disagreed.

The judgment states

[1] The plaintiff (‘ANZ’) holds a registered mortgage over the defendants’ property (‘Property’), securing a loan advanced to them in 2009. The defendants are in arrears on the loan and ANZ seeks to enforce the mortgage by an order for possession of the Property. 

[2] The first defendant (‘Oldroyd’) and the second defendant (‘Mrs Oldroyd’) are a married couple (together ‘Oldroyds’). They are the registered proprietors of the Property. Mrs Oldroyd did not enter an appearance to these proceedings and took no part in them. 

[3] Oldroyd raised numerous arguments challenging the existence or enforceability of the loan documents and the mortgage, alleging fraud and breaches of the National Consumer Credit Protection Act 2009 (Cth) (‘NCCPA’) on the part of ANZ, alleging various breaches of the defendants’ rights in ANZ’s dealings with the Oldroyds, and denying the service of the proceedings upon the Oldroyds and ANZ’s position that the Oldroyds are in arrears under the loan agreement. 

[4] At the hearing, I permitted Oldroyd to file in Court documents headed ‘originating motion’ and ‘notice of contention’ challenging the jurisdiction of this Court to hear and determine the proceedings. The challenge was put essentially on the bases that Oldroyd holds diplomatic immunity as an appointed ambassador of a nation comprised of tribal people, the Property is the premises of a diplomatic mission, the Oldroyds are bound only by tribal law and are not bound by the common and statute law of Australia, and the ANZ had broken ‘the Oaths of life the Customary tribal Lore/law of this land and the laws of Elohim God’ by committing fraud and making false allegations. I dismissed that jurisdictional challenge at the hearing and delivered ex tempore reasons for doing so. Those reasons are repeated below (with some minor non-substantive changes and the addition of footnotes). 

[5] Ultimately, for the further reasons set out below, I have concluded that the ANZ is entitled to an order for possession of the Property. Reasons for rejecting the challenge to the Court’s jurisdiction 

[6] On 18 March 2025 at 5.19pm, Oldroyd attempted to file an ‘originating motion’ and a ‘notice of contention’ containing a challenge to the jurisdiction of this Court to hear and determine these proceedings. 

[7] Those documents were not accepted for filing by the Registrar because they were not in the appropriate form and were emailed to the Court after business hours the day before the hearing. Despite those procedural problems, I permitted Oldroyd to put his jurisdictional argument before me. [ 

8] Essentially, as I understood it, Oldroyd argued that he is an Aboriginal person and therefore of an independent nation state and bound only by tribal laws and/or the laws of God. In addition, he argued that he has diplomatic status because he has been appointed by various signatories to various documents as an ambassador for an independent Aboriginal state or states, and has been ‘internationally recognised’ as such. In this regard, he relied on various correspondence and other documents from officers of embassies of certain countries, referring to meetings or correspondence and referring to Oldroyd under the title ‘Ambassador Oldroyd’. For both reasons, Oldroyd argued that he is not subject to the laws of the Northern Territory or the jurisdiction of this Court. 

[9] Oldroyd wished to call evidence from various witnesses to establish the factual assertions he made in support of his arguments. I did not receive that evidence because, even if the factual assertions were established by the proposed evidence, I rejected the arguments based upon them. 

[10] The short answers to the arguments are, firstly, that all Aboriginal people are subject to the laws of the Commonwealth and the laws of the States and Territories in which they live. There is a wealth of authority confirming that proposition from both this Courtand the High Court, as well as superior courts in other States. None of the cases referred to by Oldroyd have decided any differently. 

[11] The Supreme Court of the Northern Territory was established by statute and has the powers and jurisdiction conferred now by the Supreme Court Act 1979 (NT), which was passed by the Legislative Assembly of the Northern Territory pursuant to the power conferred on it by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth). The Court’s jurisdiction in respect of Aboriginal people who are residents of the Northern Territory is no different to the Court’s jurisdiction in respect of non-Aboriginal people who are residents of the Northern Territory. 

[12] Secondly, I do not accept that Oldroyd or Mrs Oldroyd or the associations or groups who he or they purport to represent or stand with are states within the meaning of the Vienna Convention on Diplomatic Relations, which has the force of law in Australia under and subject to the Diplomatic Privileges and Immunities Act 1967 (Cth). 

[13] Oldroyd does not have the recognition of the Australian Government as required by Article 4 of that Convention. Consequently, he and Mrs Oldroyd are not diplomatic agents within the meaning of that Convention and do not have any diplomatic status which would render them or the Property immune from the operation and effect of the laws of the Northern Territory, whether under statute or the common law. Consequently, I do not accept that the Property is the premises of a mission within the meaning of that Convention.[ 

[14] It follows from that conclusion that the immunity under Article 31 of the Convention of a diplomatic agent from the civil and administrative jurisdiction of the receiving state, here Australia, does not apply. By Article 31.1(a), that immunity does not apply in a real action relating to private immovable property situated in the receiving state, unless it is held on behalf of a sending state for the purposes of the diplomatic mission. As I have said, I do not accept that the Property is the premises of a mission.

[15] Oldroyd also asserted that the Property is a sacred site or a heritage site. He also asserted that all mortgage is a fraud. Even if any of those matters are so, they or any of them do not deny to the Supreme Court the power and jurisdiction to hear these proceedings and, if necessary, make determinations about those things. 

[16] I therefore rejected the submissions made by Oldroyd and concluded that this Court does have jurisdiction to decide these proceedings. 

[17] I add to the above reasons that, for similar reasons to those set out in paragraphs 10 to 11 above, all individuals, regardless of their faith or religious beliefs, are subject to the laws which operate in the place where they live  and the jurisdiction of the Supreme Court of the Northern Territory applies equally to all residents of the Northern Territory, regardless of their faith or religious beliefs. 

[18] Oldroyd’s request by email sent on 26 March 2025 for these proceedings to be ‘referred’ to the High Court as a matter within its original jurisdiction pursuant to s 75 of the Constitution is refused. It is trite that this Court has, at first instance, jurisdiction to determine the extent of its own jurisdiction and whether or not a particular proceeding falls within it. On 26 March 2025 and on a number of subsequent dates, Oldroyd sought to file by email a ‘motion’ for ‘strike out of the application and summary judgment’, which also purports to claim ‘the full amount of the Defendants Statement of Claim including cost on a full indemnity basis’ (referring the ‘registered commercial lien’ addressed below). The application to file that document is refused. The ‘motion’ was not in the proper form, the relief sought is misplaced and is grounded on matters put by Oldroyd in the hearing.

Trusts

'Policing Agency Data Trusts' by Barry Friedman in Northwestern University Law Review (Forthcoming 2026) comments

 Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence. In a recently-declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.” This practice of universal data collection has been the topic of intense debate, because it presents a conundrum. As many have argued, it poses the risk of serious harms: racial bias, violations of personal privacy and security, erroneous targeting of innocent individuals, and even the threat that the data will fall in the hands of hackers, or authoritarian leaders. At the same time, those who favor such collection maintain that the data, properly used and analyzed, holds out hope of enhancing public safety by locating serious law violators, and preventing dangerous threats. This Essay offers up a novel solution to the conundrum posed by the collection, retention and use of personal data: policing agency data trust. These data trusts would allow capturing the supposed benefits of collection, while minimizing or mitigating entirely the harms. The idea of a data trust first arose in response to private companies monetizing personal data. Even if data is used by private companies or governments for beneficial purposes, there still are sharp debates over the legitimacy of such uses, given that they occur without meaningful consent by individuals to the use of their personal data. There now is a small but growing body of literature—and even some experimentation—suggesting data trusts could be employed to allow data creators to maintain control over their data and how it is used. Data trusts are legal instruments that allow data creators to instruct trustees on how their data may be used; the trustees ensure in turn the data is used in no other ways. This essay turns the idea of data trusts to the problem of policing agency indiscriminate collection, retention, and use of personal data. Data that is collected would be held outside policing agency hands. Those agencies could query the collected data only according to legislative authorization and regulations established by independent data trustees. Requests would be vetted through data stewards, and only those requests consistent with governing law and rules would be permitted. Further, use of the data would not be limited to law enforcement. Rather, the data would be available to others to query—including defense counsel, but also researchers seeking to learn about policing in ways that have been closed to them through a lack of transparency. 

Nomophilia

'‘Sovereign Citizen Gets Roasted’: On the Nomophilia of Sovereign Citizens and Their Settler-Colonial Critics' by Liam Gillespie in (2025) Social & Legal Studies comments 

Sovereign Citizens have gained mainstream attention by refusing to recognise law. This attention often entails ridicule, as illustrated by viral Sovereign Citizen arrest videos. This article critically examines both Sovereign Citizen ideology and the voyeuristic enjoyment of their humiliation. First, I propose that although Sovereign Citizen ideology is premised on rejecting law, it nevertheless paradoxically exhibits ‘nomophilia’, a love of law, insofar as its rejection attempts to secure precisely what law affords Sovereign Citizens: namely, possession of expropriated lands. Next, I argue that the widespread ridicule of Sovereign Citizens also tends towards nomophilia insofar as it facilitates the enjoyment of seeing the law ‘done’ to others by subjects who, through their enjoyment, can position themselves on ‘the right side’ of the law. I argue that while this ridicule works to pathologise Sovereign Citizens, it also attempts to discursively counteract Indigenous sovereignty by reinforcing the putative supremacy of law.

Gillespie argues

While Sovereign Citizens are positioned as subjects worthy of derision and mockery, the law enforcement who‘humorously’ rein them in are portrayed favourably. They are, for example,‘quick-thinking’ judges and cops who ‘destroy’ Sovereign Citizens by upholding the law and doling out its‘lessons’. In this article however, I argue that although seemingly counterposed, both the phenomenon of Sovereign Citizenry – which is described below – and that of enjoying their ritual humiliation, occur as a function of what Maria Giannacopoulos (2011, 2020a, 2022) has called ‘nomophilia’: an uncritical love of Western law which works to obscure its relationship to settler-colonialism (which, as I explain, is precisely the context in which both Sovereign Citizens and Sovereign Citizen-related copaganda have thrived). I propose that this nomophilia works discursively and surreptitiously – and in the case of Sovereign Citizens, paradoxically and ironically – to reinforce law’s coloniality by enshrining what Goenpul scholar Aileen Moreton-Robinson has called the ‘white possessive’ function of Western law and notions of its rule (2015). 

To substantiate this argument and its relevance, the article will proceed in three substantive parts. First, I provide an overview of the Sovereign Citizen movement, which could more accurately be described as a series of loosely connected movements, clustered under an umbrella term (Baldino and Lucas, 2019: 248; Fiebig and Koehler, 2022: 35; Loeser, 2014: 1109). Here, I analyse materials generated by the movement, including its discourse, objectives, and bespoke legal documents in order to elucidate the core features of the movement and the structure of its ideology. As I explain, the central pillar of Sovereign Citizenry is the notion that contemporary governments and states are ‘illegitimate corporations’ whose law/s can be refused so that a supposedly original and radical individual sovereignty can be reclaimed. I show how Sovereign Citizens attempt to effectuate this restoration by creating and invoking their own alternative laws – often referred to as ‘pseudolaw’ by law enforcement, policymakers, and scholars alike – through which their closely bound communities can first be inaugurated and can then subsist. In outlining these ideological contours, I briefly canvass the origins of the movement, including its historical and contemporary links to white supremacist militia groups like the Ku Klux Klan, anti-government conspiracy theories, and so-called ‘paper terrorism’. 

In the second part of the article, I argue that despite their apparent rejection of law, and their claim to be its victim, Sovereign Citizens nevertheless exhibit a paradoxical form of nomophilia. This nomophilia relates to what Robert Cover has called ‘jurisgenesis’, a term denoting the formation and formulation of ‘tight communities’ through the production of ‘legal meaning’, to which shared narratives and mythologies are attached (1983: 11–15). This is because while Sovereign Citizens performatively reject what they take to be ‘official’ law, their rejection does not constitute a refusal of law tout court. Rather, it is designed to effectuate a conditional refusal that makes way for a ‘higher law’ supposedly generated both from within and for themselves, which they take to be grounded in what they call their ‘natural’, flesh-and-blood-persons’. Accordingly, I argue that the Sovereign Citizen rejection of state law is not purely an act of negation, but rather, is nomophilic and jurisgenerative to the extent that it works to produce and sustain Sovereign Citizen communities. 

While the notion Sovereign Citizen ideologies can be jurisgenerative and nomophilic already troubles common understandings of the movement – which is typically characterised as one built around a wholesale rejection of law – the purpose of my argument runs further. I argue that insofar as Sovereign Citizen movements have almost exclusively emerged in (settler-)colonial contexts, their attempts to ‘reclaim’ what they call their ‘sovereignty’ by rejecting law paradoxically amount to an attempt to secure precisely what that very law has afforded them in the first place: namely, presumed status within, and ownership over, expropriated lands. This is because Sovereign Citizens purport to reject what they imagine the law to be so that their presumed sovereignty can be grounded in their own individual bodies, à la white nativism. To this end, I argue Sovereign Citizens exhibit a paradoxical form of nomophilia whereby they ultimately love the law they claim to reject in a formation that resonates with Moreton-Robinson’s articulation of ‘the possessive logics of patriarchal white sovereignty’ (2015: xi). 

In the third part of the article, I shift to critically examine popular discourse about Sovereign Citizens. As noted above, this discourse is largely perfunctory and mocking in nature, as the popularity of copaganda content showing Sovereign Citizens getting ‘rekt’, ‘roasted’ and ‘destroyed’ well attests. As with the Sovereign Citizen movement itself, I also identify the workings of nomophilia and an attachment to (settler-)colonial law within this discourse. While this love of law is apparent in the ‘comedy’ associated with seeing Sovereign Citizens receive their supposed comeuppance, I suggest again that the contours of this glee run deeper. This is because the pathologisation of Sovereign Citizens as ‘crazy’ practitioners of ‘pseudolaw’ works to discursively mask the contingency of law itself, and its ‘rule’, which are merely taken for granted and counterposed as banal and necessary, and indeed, non-violent. My argument here is not that the phenomenon of Sovereign Citizenry is not problematic and worthy of sustained critique (as I explain, its links to white supremacy and white nativism clearly demonstrate that it is). Instead, my argument is that the predominant manner by which Sovereign Citizens are pathologised – be it through depictions of danger, worthiness of ridicule, or both – is itself also problematic insofar as it both reifies and takes the law for granted, while simultaneously pathologising resistance towards the state, the police, and the law/s they uphold. As I explain, these features of the ridicule and pathologisation of Sovereign Citizens are especially problematic in settler-colonial contexts insofar as they take the law for granted, working to normatively conceal the slow violence, epistemicide, juricide and nomocide it facilitates (Adebisi, 2023; Benjamin, 1978; Derrida, 1986; Giannacopoulos, 2020b; Watson, 2014, 2017) through the production of law’s ‘nomopoly’ (Giannacopoulos, 2020b, 2022, 2023). 

I argue that the juxtaposition of the nomophilia of both Sovereign Citizen ideology and that of the phenomenon of ridiculing and policing them reveals an important structural affinity between the two positions: namely, that both are predicated on their vision of law as being ‘real’ and monolithic and incontestable. For Sovereign Citizens, this law is the ‘natural’ law they locate in their ‘flesh-and-blood-persons’ (as described below). By contrast, for their detractors, it is the singular‘rule of law’ that can and according to them does apply equally to all bodies, irrespective of whether or not they explicitly consent to its rule and application therein. By revealing this affinity, I argue that the respective ideologies of the Sovereign Citizen movement and those who ridicule and police them work discursively to attempt to foreclose Indigenous claims to sovereignty by shoring up their own respective formulations of sovereignty and the alleged sanctity of law.

'Prefigurative Neoliberalism: A Provisional Analysis of the Global Sovereign Citizen Movement' by Amy Cohen and Ilana Gershon in (2025) PoLAR: Political and Legal Anthropology Review comments 

Much contemporary research on prefigurative legality turns to left‐leaning activists for ethnographic insights into practices that call forward an alternative legal world. We turn instead to a right‐leaning movement commonly known by scholars as the Pseudolaw movement—or self‐named (by some involved) as the sovereign citizen movement—filled with loosely affiliated groups that share a common ideological approach to law. We discuss the underlying logics motivating sovereign citizens' practices, discussing how a nostalgically based form of prefiguration shapes sovereign citizens' responses to contemporary neoliberal dilemmas. We then compare this right‐leaning movement's approach to prefigurative legality with the approach of left‐leaning activists.

Lawyer Wellbeing

Lawyer Wellbeing, Workplace Experiences and Ethics: A Research Report by Vivien Holmes, Julian Webb, Stephen Tang, Susan Ainsworth and Tony Foley for the Victorian Legal Services Board + Commissioner, the Law Society of New South Wales and the Legal Practice Board of Western Australia (LPBWA) comments 

This report discusses the findings from survey research conducted in March–April 2024 across the 3 Australian Uniform Law jurisdictions (Victoria, New South Wales and Western Australia). The research examines the relationships between lawyer wellbeing, ethical climate, workplace incivility and wellbeing safeguards in legal workplaces. It also explores how these various factors influence individuals’ intentions to leave either their current workplace, or the legal profession. 

Core concepts and themes 

Ethical climate 

The term ‘ethical climate’ is used to describe the shared experiences of what is ethical and unethical in an organisation. Our participants perceived 3 main dimensions of ethical climate in their workplaces: a) positive ethical behaviours and relationships b) self-interest and self-protection c) rule-breaking and ‘ethical flexibility’. 

The degree to which participants perceived these dimensions operating in their workplace varied by gender and practice setting. Further, the 3 dimensions were experienced by participants as distinct ethical climate ‘types’. Just under half of survey participants reported working within a more positive, ethically engaged climate, characterised by higher positive ethical behaviours/relationships and low levels of self-interested behaviours or ethical flexibility. Approximately one-third were working in an ethically apathetic environment, with lower than average levels of positive ethical behaviours, and slightly higher than average perceptions of the 2 negative dimensions. The remaining participants described an ethically questionable environment, with high levels of self-interest or ethical flexibility, and low levels of positive ethical behaviour. 

Psychological distress 

Consistent with previous studies of lawyer wellbeing, about 30% of participants reported symptoms indicative of a higher risk for a depressive or anxiety condition. Female participants appear to be significantly more likely to report some degree of distress, but are not significantly more likely to experience moderate or severe levels of distress. Psychological distress was highest in lawyers with less than 5 years post-qualification experience (PQE). Levels of distress scores decreased significantly with increasing experience. 

Incivility 

This study indicates that incivility is a widespread problem across the legal industry. However, the intensity of incivility reported does not seem high relative to other studies. Experience of incivility varies by gender, PQE and status: women and junior lawyers generally experience more of it. Principals experience it less than any other practising certificate holder. Peers, supervisors and clients are significant instigators of incivility. 

Positive wellbeing 

The survey measured positive subjective wellbeing by asking about 9 attributes: positive emotions, engagement, positive relationships, meaning, accomplishment, physical health, mindset, environment and economic security. The strongest contributor to participants’ positive wellbeing was their relational experience at work, specifically, encouraging and supporting others in the workplace. Lawyers’ sense of meaning – believing that their work was valuable and worthwhile – was also given significant weight in relation to their wellbeing. On the negative side, physical health scored the lowest rating. There is a clear correlation between wellbeing and ethical climate types. Participants in ethically questionable climates experience poorer physical health, relative disengagement and a reduced sense of meaning in the work. 

Psychosocial supports 

Participants were asked to identify the strength with which they endorsed their organisation’s provision of 6 specified psychological and social supports to staff. Two-thirds of the support items identified were positively endorsed by more than 50% of participants. However, nearly half of respondents felt that their workplaces did not show sufficient understanding of the importance of employee mental health. The only ‘support’ item to be favourably endorsed by over two-thirds of respondents was the ability to count on the support of colleagues in fulfilling the requirements of their job. The research found (as expected) a strong negative correlation between total psychosocial support and incivility, and a strong positive correlation between positive ethical behaviours and relationships and the presence of good psychosocial supports. The data suggests that organisations that provide a positive ethical climate are better at providing a psychosocially safe environment, while a psychosocially safe environment is also perceived to be one that promotes positive ethical behaviours and relationships. What predicts higher levels of psychological distress? Unsurprisingly, there was a marked relationship between higher levels of psychological distress and lower levels of positive wellbeing. Further, higher levels of psychosocial support were associated with lower levels of psychological distress. The experience of incivility, regardless of the instigator or other demographic or situational factors, was consistently associated with higher levels of psychological distress. While levels of psychological distress were highest in lawyers with less than 5 years PQE (see section 2), when controlling for PQE, principal practising certificate holders had significantly higher levels of psychological distress than all other practising certificate holders. This suggests that the fact of being a principal practising certificate holder has a specific adverse effect on wellbeing. The vulnerability of both junior lawyers and principals to psychological distress supports the view that the mental health of lawyers is a top-down problem. In other words, it is consistent with a view that the root problem is structural and, at least in part, shaped by organisational values, and assumptions about professional identity and (work) commitment (cp. Collier, 2025; Lister & Spaeth, 2024; Krill et al. 2022) that not only come from the top of the organisation, but also impact the ability of law firm leaders to address their own wellbeing. 

Does experience of workplace incivility predict wellbeing/distress/perceptions of ethical climate? 

Greater incivility was associated with lower perceptions of positive ethical behaviours, and higher perceptions on the other 2 negative ethical climate dimensions. Total incivility experience was also associated with lower levels of positive wellbeing. However, the relationship between incivility and wellbeing is better explained through the presence/ absence of ethical behaviour or an ethic of care. Nonetheless, incivility experience, regardless of source or perceptions of ethical climate, has a direct impact on psychological distress. Four distinct clusters of incivility instigators were identified, corresponding to (1) supervisors; (2) external sources (clients, collaborators or judiciary); (3) coworkers and subordinates and (4) incivility from any of these 6 sources. The negative effect of incivility on wellbeing was greater when the source of the incivility was a supervisor. Further, the source of incivility was material to participants’ perceptions of workplace ethical climate (a more negative ethical climate, if the source was the supervisor). Nonetheless, the source of incivility had no effect on psychological distress: any form of incivility has a direct and robust effect on distress. 

Intention to leave the profession 

Lawyers’ intention to leave the profession within the next 12 months was predicted only by low positive wellbeing and high psychological distress. Respondents gave reasons for their intentions to leave. In order of frequency, these included: a) the ‘reward/effort’ bargain and working conditions b) stress, pressure and/or ‘burnout’ c) desire for a role or career change d) poor leadership, management and work culture e) negative impact of work on physical and/or mental health. Among those who had been practising for less than 5 years, poor leadership, management and work culture assumed a higher relative importance. 

What predicts a lawyer’s intention to leave? 

Almost one in 3 participants expressed an intention to leave their employer within the next year. Moreover, nearly one in 10 expressed an intention to leave the profession within the year. 

Intention to leave employer 

Lawyers’ intention to leave their employer was predicted by:

a) low levels of positive wellbeing, much more so than high levels of psychological distress b) low psychosocial support, more so than the extent of incivility c) incivility from supervisors, rather than from external sources or from peers d) an ethical climate that valued ‘ethical flexibility’. 

The value of beneficial supports at work 

Respondents commented positively on the following, in order of frequency:

a) paid counselling, support from a psychologist or Employee Assistance Program b) management approach, which included monitoring of workloads/working hours/ staff at risk, showing an interest in staff and allowing time for debriefing c) flexible workload and use of leave (or additional leave) to cope with personal circumstances d) flexible work arrangements, including working from home e) additional leave, billing relief to support wellbeing, flextime/time in lieu for excess hours f) informal peer support. 

Other respondents commented on the ineffectiveness of supports at work, inconsistencies between policy and practice, and the futility of providing individually focused supports without addressing unreasonable/ excessive workloads and the quality of management. 

Conclusion and areas for action 

Conclusions 

Overall, our findings indicate that there is a gap between the perceptions and experiences of more senior and junior members of the profession. This underscores the importance of investigating the views and experiences of those at lower levels of the hierarchy, and using the results to encourage critical reflection on organisational culture by senior managers. It also highlights how critical the first 5 years of legal practice are to lawyers’ wellbeing. For those interested in the sustainability of the legal workforce, targeted attention to improving lawyers’ experiences of the first 5 years of practice, as well as (or indeed through) the quality of management, should be a priority. Individual employers should also be concerned as voluntary turnover (employee resignations and retirements) can be associated with declines in productivity, loss of organisational knowledge, disruption in service quality to clients and additional costs of recruitment, induction, and staff training. 

The wellbeing analysis indicates a range of areas in which positive wellbeing can be improved. Active attention to both ethical climate and psychosocial support offers a pathway to building the greater sense of community, agency, engagement and motivation required to enhance wellbeing. While there was a high proportion of participants who reported experiencing psychosocial supports in the workplace, this came mostly informally from colleagues (rather than from formal mechanisms in the organisation), or from the introduction of more flexibility in work arrangements – which firms are increasingly adopting. The latter was seen as a priority by many participants. 

Specific recommendations/areas for action 

A key challenge for many in the legal workforce is that demands more than occasionally exceed resources. This imbalance needs to be addressed by employers, with the support of their professional bodies, and also perhaps with the use of some regulatory levers. We offer some relatively broad recommendations and identify some key areas for action:

a) the implementation of beneficial workplace supports 

b) information and education, including

• The wellbeing experiences and needs of Indigenous and ethnically diverse practitioners are insufficiently understood; targeted research and action on that research would be valuable. 

• Further research into the experiences of principal practising certificate holders would be beneficial, not least in that interventions targeting principals to support and strengthen their own wellbeing may in turn prove beneficial for our other most vulnerable group, junior lawyers. 

• It would be useful to identify and audit/ evaluate examples of effective flexible work arrangements, so that best practice could be better identified and rolled out across the profession. 

• Professional and regulatory bodies are encouraged to develop targeted guidance on the legal and regulatory obligations and professional best practice expectations placed on organisations, principals and supervisors to protect and enhance the professional wellbeing of staff.

 c) the ‘business model’ 

We encourage Uniform Law regulators to explore interventions that address harmful economic drivers of law firm practice. In particular, we recommend a thorough examination of practices which: – limit lawyers’ sense of meaning, purpose and accomplishment in their work, particularly early in lawyers’ careers – lead to overwork and a neglect of physical and mental health – create vulnerabilities to workplace incivility, which arise through stress and misaligned values. 

Further, we recommend that this process of discovery and design should be undertaken together with members of the profession, with representation from early career lawyers and lawyers from underrepresented segments of the profession. 

Finally, regulators should develop a systematic approach to recording and understanding the stories and experiences of lawyers who leave the profession, especially those who leave prematurely or following adverse experiences.

Candidature

The Australian Electoral Commission, in declaring candidates for the 2025 Federal general election, states 

The Australian Electoral Officer for Western Australia today declared all candidates for the election of Senators for Western Australia in the 2025 federal election in accordance with the Commonwealth Electoral Act 1918. 

Mr Rodney Culleton was among those candidates declared. This follows his lodgement of a fully completed nomination form and mandatory qualification checklist, together with the requisite $2,000 fee, before the close of nominations 12 midday on Thursday 10 April 2025. Mr Culleton’s nomination declared that he was not an undischarged bankrupt or insolvent. 

The provisions of the Electoral Act do not give the AEC or any AEC officer the power to reject a fully completed candidate nomination, regardless of whether any answer to a question of the qualification checklist is incorrect, false or inadequate (see section 170A, Electoral Act). This means the AEC cannot reject a nomination even if it contains a false declaration as to the eligibility of that person to stand for election. 

The AEC notes Mr Culleton is listed on the National Personal Insolvency Index as an undischarged bankrupt. It appears therefore that he may have made a false declaration as part of his nomination process. The AEC has referred this matter to the Australian Federal Police for their consideration. 

Under section 44(iii) of the Constitution: “Any person who is an undischarged bankrupt or insolvent, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representative.” 

Following Mr Culleton’s nomination as a candidate under the same circumstances at the 2022 federal election, the AEC referred the matter to the Australian Federal Police. A prosecution relating to this matter is ongoing. 

Mr Culleton’s name will appear on the WA Senate ballot paper in the 2025 federal election. 

If the AEC is presented with compelling evidence that other candidates in the 2025 federal election may have also signed a false declaration we will consider whether similar referrals to the AFP are warranted to ascertain if the candidate has committed an offence. 

Editor’s notes: Intending candidates must make themselves aware of the operation of section 44 of the Constitution which includes the following.

The AEC separately notes 

s44 Disqualification: “Any person who: (iii) is an undischarged bankrupt or insolvent; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.” 

44 Disqualification 

Any person who: is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or is an undischarged bankrupt or insolvent; or holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty‑five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. 

Subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. ... 

Section 44 of the Constitution - grounds for disqualification 

A person is disqualified from nominating as a candidate or sitting in the Parliament where the person becomes subject to any of the five conditions listed in this section: 

Section 44(i) 

Section 44(i) of the Constitution applies to two categories of persons: a person who is “under any acknowledgement of allegiance, obedience or adherence to a foreign power”; and a person who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.” In the 1988 case of Nile v Wood [1988] 140 CLR 133, the Court clarified that the first category of disqualification under section 44(i) captures any “person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgement”. 

The second category of disqualification under section 44(i) captures a state of affairs involving the existence of a status or of rights under the law of a foreign power. It applies to persons who have certain rights because of a formal citizenship link with a foreign power, and therefore to any person who holds dual or plural citizenship. 

In the 1992 case of Sykes v Cleary [1992] HCA 60, the Court found that candidates are disqualified from election to Parliament if they do not take "all reasonable steps" to renounce their other citizenship before nomination. 

In the more recent matters of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45, Re Gallagher [2018] 17 the Court upheld the approach taken by the majority of Justices in Sykes v Cleary. That is, to give section 44(i) its ordinary and natural meaning, subject only to the implicit qualification in section 44(i) that the foreign law conferring for foreign citizenship must be consistent with the Constitutional purpose of the provision. 

The Court has made it clear that whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. Accordingly, it is essential that candidates rigorously check their ancestry and to obtain their own legal advice on whether they may be a citizen of a foreign power. 

The Court has also held that an Australian citizen who is also a citizen of a foreign power will not be prevented from participating in the representative form of government ordained by the Constitution by reason of a foreign law which would render an Australian citizen irremediably incapable of being elected to either house of the Commonwealth Parliament. As is apparent, to rely upon this approach is conditional on both an analysis of the action taken by the intending candidate and the effect of the overseas law. Intending candidates will need to obtain clear legal advice on whether their circumstances are able to fit within this aspect of section 44(i) of the Constitution. 

The cases make it clear that if the issue of overseas citizenship is not resolved by the close of candidates’ nominations, then it is likely that the candidate will not be qualified to stand for election due to the operation of section 44 of the Constitution. 

Section 44(ii) 

Section 44(ii) of the Constitution applies to two categories of persons: a person “attainted by treason”; and a person who “has been convicted and is under sentence or subject to be sentenced”. 

The first category of disqualification would probably only apply where the person has been convicted of the offence of “treason” contained in section 80.1 of the Criminal Code Act 1995. 

The second category of disqualification is that the person is under sentence or is subject to be sentenced for any offence against the law of the Commonwealth or a State that carries a sentence of 12 months imprisonment or longer. As an example, in the matter of Re Culleton [No. 2] [2017] HCA 4 the Court was asked to consider whether Senator Culleton may have at the time of nomination as a candidate, been “convicted and under sentence or subject to be sentenced for an offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer” contrary to subsection 44(ii) of the Constitution. 

The Court held that despite the subsequent annulment of the conviction, at the time of the nomination as a candidate Senator Culleton was to be sentenced for the offence of larceny, a crime involving property theft in NSW. This offence was punishable by imprisonment for a period of up to five years; but where the value of the property involved in the offence does not exceed $5,000, the maximum term of imprisonment that the Local Court may impose is two years. Senator Culleton's offence concerned property of a value less than $2,000. Accordingly, he was liable for imprisonment for a maximum term of two years. Therefore, the Court concluded that he was disqualified under section 44(ii) of the Constitution and his election was invalid, making his place vacant under section 45 of the Constitution. The Court ordered a special recount of Senate ballot papers in Western Australia, the state where Senator Culleton was elected. 

Section 44(iii) 

Section 44(iii) of the Constitution disqualifies a person if they are “an undischarged bankrupt or insolvent”. While there have been no specific decisions on the scope of section 44(iii), this appears to established by a question of fact as to whether a person has been made a bankrupt and whether the period of bankruptcy has concluded or been discharged. 

The Full Federal Court decisions in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 contains a brief discussion of section 44(iii) and section 45 of the Constitution. 

The AEC notes that the Australian Financial Security Authority (AFSA) is required to maintain the Bankruptcy Register and The National Personal Insolvency Index (NPII) which contain a publicly available and permanent electronic record of all personal insolvency proceedings in Australia.

Culleton appears elsewhere in this blog, eg here and here