The sovereign citizen dilemma

Anti-mask protesters stage unauthorised rally despite Melbourne's Stage 4 lockdown restrictions.(Photo by Darrian Traynor/Getty Images, full caption below)*

The COVID-19 pandemic has brought about a myriad of challenges to our legal system – balancing human rights, substantive and procedural law reforms, an uptake in remote appearances and maintaining access to justice for vulnerable Queenslanders in the face of this dramatic change.

Perhaps one of the more distracting consequences of the pandemic has been the increasing frequency in which ‘sovereign citizen’ arguments are being mounted against our law enforcement officials and in courts.

Just earlier this month District Court Judge Glen Cash QC published a decision in which he dismissed an argument peddled by a Sunshine Coast sovereign citizen that he had two distinct legal personalities and, by consequence, the criminal laws of the state had no lawful jurisdiction over one of these personas.1

It often starts with a roadside breath test or with a routine visit to Bunnings. Police ask the person to produce their driver’s licence or to wear a face mask. Someone’s mobile phone comes out and a recording is started. The person refuses to comply with the directions of the officer and it descends into a circular and confusing argument about the legitimacy of such requests.

These people assert that they are sovereign – like an independent island within the wider sea of Australian law – and they cannot be constrained through such a declaration. The phrase ‘I do not consent!’ is usually heard after the police are left with no option but to charge the person for failing to comply with a lawful direction.

Such videos have been commonplace on social media over the last 18 or so months. They often leave us with a slight twinge that we cannot seem to shake. However, the question must be asked, who are these so-called sovereign citizens and why do they believe what they do? Also, what can we, as members of the legal profession, do in order to educate the community about this area of law?

The origins of the sovereign citizen (or ‘SovCits’ as they are usually referred to in places such as Reddit) are etched in history. It is said to have first begun in America during the patriot movement and draws upon central tenants of social and political philosophy – the social contract, natural rights and the theory of the state.

Its anti-government platforms are strongly embedded with a mixture of conspiracy theories, constitutional re-interpretations and alternative versions of history.

In a nutshell, sovereign citizens are people who believe that the laws of the state do not apply to them as they have revoked their ‘consent’ for this to occur. They consider themselves to be ‘natural’ persons – born with their own natural rights that are unable to be constrained by governments. Often they refer to the ‘common law’ as being the only law they recognise as legitimate.

Usually they oppose the very foundations of our democracy and rely on pseudo legal language, piecemeal, cryptic and often incorrect legal arguments to assert their independence.

As stated by Judge Cash QC, it is enough to simply set out the argument for one to ascertain it is ‘nonsense’.2

The unfortunate reality is that, as sovereign citizens do this, they will quite often harass members of the legal profession and engage in what has been termed as ‘paper terrorism’ – the use of frivolous and numerous lawsuits as a method of harassment. Thankfully, Queensland has the Vexatious Proceedings Act to counter such behaviour. However, this legislation has its own limits.

Based off such beliefs, they therefore often mount the argument that the laws of Australia, the police officers who enforce them, and the courts which administer them have no jurisdiction over their person.

But, how do sovereign citizens seek to mount such arguments?

The most common argument invoked for defence of this belief is that such an approach is established in the Magna Carta, specifically, article 61 of that document. Signed in 1215 between the dukes and King John of England, this contained a commitment from King John that he would “seek to obtain nothing from anyone, in our own person or through someone else, whereby any of these grants or liberties may be revoked or diminished”.

While the Magna Carta is seen as one of the building blocks of our common law system, it does not afford Australians the ability to ‘opt out’ of various state or federal laws.

In Essenberg v The Queen B54/1999 [2000] HCATrans 385 (22 June 2000) McHugh J took this argument head on and explained that, due to the developments of history, including the modern-day parliamentary system, this is simply not the case.

Indeed, his Honour pointed to the fact that the Magna Carta was an agreement between the monarchy and its oligarchy. With the creation of the modern parliamentary system in the 17th Century, this occurred on the basis that parliament was to be separate from the existing monarchical system, including its laws.

In dismissing the applicant’s leave to hear an appeal, McHugh J concluded quite succinctly:

“Magna Carta and the [United Kingdom’s] Bill of Rights are not documents binding on Australian legislatures in the way that the Constitution is binding on them. Any legislature acting within the powers allotted to it by the Constitution can legislate in disregard of Magna Carta and the Bill of Rights. At the highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country or, for that matter, the United Kingdom. Nor do they limit the powers of the legislatures of Australia or the United Kingdom.”

Additionally, refusing to acknowledge a law does not mean that it cannot apply to someone. As lawyers we are aware that a mistake of law (that is, a mistake that a law does not apply, for example) is not a defence under section 22 of the Criminal Code Act 1899 (Qld).

We are also aware that human beings are considered to be legal persons in Australia. Simply rejecting or renouncing this, through whatever supposed legal document, will not grant one immunity from the laws of the state. This is a “fundamental proposition” that “cannot be doubted”.3

While it is true that at certain times throughout history certain people were not considered to have legal capacity – slaves, women and children – this is not the case today. If such an avenue existed, Judge Cash QC reasons that this would surely “be antithetical to our society and system of laws”.4

It is also a truism that, as a general principle, our common law is constrained by statute. While these two systems are not entirely distinct from one another, legislation may exclude or confirm the operation of the common law or act as a mechanism of interpretation.

While it is anticipated that when sovereign citizens use the term ‘common law’ as some kind of basis for their belief, they likely do not understand the legal definition of this word, and the principle remains the same – in the Australian system statutes as enacted by parliament enjoy supremacy over other systems of law.

Lastly, sovereign citizens also often invoke international treaties as a justification for their beliefs (usually within the context of an alleged breach of human rights). Yet, simply because Australia may be a signatory to an international treaty does not mean that the rights it contains are automatically valid at a domestic level. It is a general principle that there must be some enabling legislation that triggers the international law’s own application within the state or Commonwealth scheme.

In saying all of this, it is acknowledged that convincing another party (perhaps even one’s own client) of the above is likely to be fraught with difficulty if they themselves do not see any modern legislative system as legitimate. This is especially so if those views are entwined with conspiracy theories.

The introduction of the Human Rights Act 2019 (Qld) has seen an increase in human rights arguments. This is a good thing, even if some of those early arguments have been misguided. We are all learning a new area of human rights law.

However, the sovereign citizen argument is a different beast and should not be confused with the proper application of existing human rights law.

If you are faced with a client or opponent party who wishes to run a ‘sovereign citizen’ argument, the following advice and/or response can be given to them:

  1. Such arguments have been judicially tested at all levels of Australian courts and none have succeeded. It is doomed to fail.
  2. If it is a criminal matter, it does not provide a defence and is likely to result in a more severe penalty because a court will take the view that it undermines any co-operation, acceptance of responsibility or remorse.
  3. There is always the possibility that the court may impose a costs order against a party running an argument that is likely to fail and is an abuse of the court’s process.

Additionally, as practitioners we should also keep the ethical obligations we owe to the court in the forefront of our minds. If, despite you providing the advice outlined above, your client insists that you run such an argument, the ethical duties we hold as solicitors may require us to withdraw from the matter.

Such a situation is governed by rule 13 of the Australian Solicitor’s Conduct Rules (ASCR) which states that a solicitor can only terminate an agreement with a client if they have just cause and have given the client reasonable notice.

Luckily for us, Queensland Law Society has issued a useful guidance statement on what in fact constitutes ‘just’ cause.5

If a client insists the solicitor commit a breach of the law, professional rules or engage in conduct where such a breach will necessarily be the result, or equally, if a client insists the solicitor advance arguments which are ‘hopeless’, ‘doomed to disaster’, ‘bound to fail’ or which are ‘not properly arguable’ then this is sufficient grounds of just termination.

What must follow is a detailed letter to the client within a reasonable timeframe advising them of these grounds and the decision to terminate.

It is also possible that running such a case could have possible professional discipline implications,6 or in more severe cases, costs implications for a solicitor.7

Under rule 21 of the ASCR we must act responsibly in regard to our use of the court process and privilege.8 We are prohibited from alleging any matter of fact in any submission during any court proceeding unless we believe on reasonable grounds that the factual material already available provides a proper basis to do so.9 While we have a central duty to our clients, this cannot come at the expense of our duty to the court.

Lord Reid puts it as follows:

“Every Counsel [and solicitor] has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”10

It is difficult to imagine a situation where a sovereign citizen argument might properly be mounted in good faith.

Indeed, as a profession that rests upon the maintenance of our perception as the ‘honourable profession’, pursuit of such cases whereby the solicitor is sure to act as a mere mouthpiece of their client will surely bring the profession into disrepute.

While it is not surprising that the sovereign citizen movement has secured a foothold throughout the pandemic – especially given the extended use of emergency powers – it is clear that one cannot simply ‘opt out’ of our legislative or legal system despite how illegitimate they perceive it to be.

Ella Scoles is a Solicitor at Robertson O’Gorman Solicitors.

*MELBOURNE, AUSTRALIA – AUGUST 09: A man is detained by Victoria Police on August 09 2020 in Melbourne, Australia. Protesters face fines and arrest for breaching the Chief Health Officer’s directives as Victoria works to contain COVID-19 transmissions in the community. Melbourne’s current lockdown restrictions and Metropolitan Melbourne is under stage 4 lockdown restrictions, with people only allowed to leave home to give or receive care, shopping for food and essential items, daily exercise and work while an overnight curfew from 8pm to 5am is also in place. The majority of retail businesses are also closed. Other Victorian regions are in stage 3 lockdown. The restrictions, which came into effect from 2 August, have been introduced by the Victorian government as health authorities work to reduce community COVID-19 transmissions across the state. (Photo by Darrian Traynor/Getty Images)

Footnotes
1 This judgment has previously been the subject of a QLS Proctor article by Tony Keim. For reference, the case referred to is that of R v Sweet [2021] QDC 216.
2 R v Sweet [2021] QDC 216, [3].
3 R v Sweet [2021] QDC 216, [6].
4 R v Sweet [2021] QDC 216, [6].
5 Guidance Statement No.8, Termination of a retainer.
6 See, for example, Legal Services Commissioner v Cooper [2016] QCAT 122, where it was found that a failure of a solicitor to exercise their forensic judgement amounted to unsatisfactory professional conduct.
7 In McClelland v Perpetual Trustee Co Ltd [2010] QCA 281 it was held that running a hopeless case may expose a practitioner to adverse cost implications if there has been a serious departure from their duty to the court.
8 A similar rule is found in rule 59 of the Queensland Barrister Rules; it is also acknowledged that rule 17.1 of the ASCR operates within this sphere, in that we must not be a mere mouthpiece for our clients.
9 It is acknowledged that there is some significant jurisprudence regarding what is a hopeless case and alternatively, a case that is in fact novel litigation. Usually such a case has to be an abuse of the court’s process in one way, shape or form before it will amount to a breach of our ethical duties. See the judgements of White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169, Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 and Kumar v MIMIA (2004) 133 FCR 582 for some guidance.
10 Rondel v Worsley [1969] 1 AC 191, 227.

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2 Responses

  1. The sovereign citizen argument is barking up the wrong tree.

    Perhaps we should ask, however, just how legally valid is it for state governments to constrain fundamental rights through ‘directives’?

    This is a clear breach of the separation of powers, whereby the executive has taken upon itself to not only dictate what people should wear, when they can open their business, where they can go, whether they can freely assemble, for how long they can leave the house, and the number of people they can associate with, but also open and close parliament as it pleases. Lawyers, the so-called defenders of the citizens against the state, have been complacently silent in the face of this.

  2. Those participating in sovereign citizen claims also seem to be susceptible to thinking they can establish not for profit tax free self reporting ‘foundations’, thinking that providing for their own sustenance (in the form of rent, groceries, motor vehicles etc) is perfectly acceptable. No amount of advice seems to convince these individuals that what they are doing has no legal basis and they are setting themselves up for future prosecution.

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