Whose constitution: Sovereign citizenship, rights talk, and rhetorics of constitutionalism in Australia

Abstract

The ‘sovereign citizen’ is a contemporary phenomenon increasingly evident in Australia and other jurisdictions. It represents an alternative understanding of constitutions, justice, and authority. It centres on a rhetoric in which adherents assert rights but disclaim responsibilities and deny obedience to national, provincial, or municipal/rural governments when obedience would be inconvenient. The rhetoric involves claims that specific constitutions since the mediaeval period are invalid, with individuals being free of state or corporate authority unless each person chooses to assent. The language seeks to characterise each individual as a sovereign, a self-possessed individual with a legal status equivalent to a state, and lawfully ignoring obligations such as taxation, traffic rules, child support, firearms restriction, and environmental protection. It often features assertions that such obligations are voided through language about an individual’s name or supposed rights to settle disputes through ad hoc ‘juries’ that erase the authority of legislatures, statutes, and formally appointed embodiments of state authority such as judges, police, welfare, and public revenue officials. It also selectively denies the authority of private sector entities such as banks, with sovereign citizens frequently claiming that debts to corporations are not enforceable. The article interrogates the social and conceptual bases of sovereign citizenship in Australia, arguing that the ‘sovereigns’ have a misplaced understanding of the modern legal order and the functioning of constitutions in contemporary liberal democratic states. The rhetoric is incoherent and administratively unpersuasive, reflecting a belief in a past without the ills of the nation state, a world of self-reliant ‘freemen’ and small communities whose legal order was fit for purpose because it was local, trusted, not bureaucratised, and predominantly oral. The article thus offers insights about both the phenomenon and the nature of constitutions.

1 Introduction

This article is an exercise in critical constitutionalism,¹ exploring responses to the Australian constitutional framework by individuals who characterise themselves as sovereign citizens, asserting a legal identity unrecognised by courts. Those individuals have a heterodox populist, adversarial, and incoherent understanding of Australia’s legal system. That understanding is manifested through what Glendon and others have characterised as ‘rights talk’² and through recurrently unsuccessful denial of constitutional authority on the basis that the government lacks legal validity or that individuals are entitled to benefits but not subject to legal obligations unless they agree. The language of sovereign citizenship in Australia and New Zealand is informed by and often resembles discourse elsewhere in the world by individuals and groups who have been variously characterised as Freemen on the Land,³ exponents of Organised Pseudo-Commercial Argument (OPCA),⁴ or users of a ‘straw man theory’⁵ in interactions with law in the United Kingdom, Canada, United States, and other liberal democratic polities.⁶ It centres on a view of legal personhood in which self-possession valorises rights over responsibilities and ostensibly entitles individuals to opt out of obligations that are personally inconvenient.⁷

Expressions of sovereign citizenship have been characterised by courts as vexatious,⁸ nonsensical,⁹ incomprehensible,¹⁰ ludicrous,¹¹ mumbo jumbo,¹² gobbledygook,¹³ gibberish,¹⁴ untenable,¹⁵ or simply ineffective. In terms of litigation outcomes, those characterisations are correct. Individuals who expressly self-identify as sovereign citizens or who in the course of dealing with other entities (such as law enforcement) rely on sovereign citizen understandings of constitutional law have not gained a privileged freedom from arrest, waiver of debts, or other benefits. However, from the perspective of critical constitutionalism, the sovereign citizen phenomenon offers insights about how people mis/understand constitutions, law, rights, and responsibilities. Those insights are relevant for courts, legal practitioners, and public administrators in an era of community disengagement¹⁶ and increasingly pervasive fake news.¹⁷

The following pages do not provide an in-depth analysis of the psychology of sovereign citizenship,¹⁸ the use by Australian sovereign citizens of social media,¹⁹ co-option by neofascist or other groups that deny the legitimacy of law enforcement,²⁰ or the risk that disenchantment with the legal system (and economic marginality) will result in what might be considered to be domestic terrorism.²¹ The article instead considers the Australian constitutional framework as a matter of incomprehension and contestation by sovereign citizens, particularly the ineffective denial by those people of the authority of law founded on the national and provincial constitutions. The discussion draws on Australian case law, alongside reference to comparable jurisprudence in other countries. It is informed by literature on hermeneutics, in other words how constitutions as foundational legal texts are interpreted by legal practitioners and non-specialists.²² It is also informed by the study of law’s construction and verification of legal personhoods.²³ The objective is to offer insights about a divergent reading of Australia’s legal framework founded on a belief that the constitution is invalid or only applicable when beneficial to a claimant, in other words an assertion of a privileged legal identity that overrides substantive law.

The article has four parts. Part 2 introduces the discussion, offering a concise overview of Australia’s constitutional framework in relation to critical constitutionalism. Part 3 then offers a view of sovereign citizenship, centred on that phenomenon in Australia but contextualising it through brief reference to the phenomenon and scholarship overseas. Part 4 discusses sovereign citizenship as a matter of language, invocation of authority, and mis/readings of history. The discussion argues that sovereign citizenship as a practice embodies a belief by adherents that linguistic mechanisms provide an ‘abracadabra’ that will override Australia’s constitutional framework or otherwise free the adherents from obligations, such as compliance with road rules and commercial contracts, that are personally inconvenient. The article’s final part offers concluding comments.

2 Constitutionalisms and comprehensions

Constitutions are protean and thus deserving of analyses through a critical constitutionalism that considers how they are read by people and more broadly how they derive legitimacy.²⁴ Their operation is as much a matter of social belonging (or alienation and erasure) as it is of justiciable rights regarding disputes between citizens and the state or disputes that do not directly involve the state. They may have an extra-legal significance as part of a nation’s history and embodiment of a people’s values. They may enshrine freedoms and responsibilities of everyone within a specific jurisdiction. They may provide a basis for the determination of citizenship, a legal status with rights and responsibilities.²⁵ They may more directly underpin and provide legitimacy for expressions of authority, including the existence of courts and operation of legislatures. Their interpretation might be contested in courts and other fora. The individuals whose encounters with the Australian justice system are discussed in this article can most succinctly be understood as people who selectively reject the authority of the constitution and deny the reality of the legal framework founded on that constitution in instances where denial is personally convenient.

To make sense of that claim, it is useful to provide a brief overview of the origins and shape of the framework. A sense of origins is relevant because the sovereign citizens discussed below often buttress their assertion of an autonomous legal identity (in other words one selectively not subject to contemporary Australian law) by indicating that in the past there has been a constitutional ‘rupture’ that invalidates the public administration or commercial rules being contested by the citizen.²⁶ A recurrent claim, for example, is that Australia’s national government and constitution ceased to have effect because the nation became a ‘Delaware corporation’.²⁷ A similar claim of ‘rupture’ was evident in Milton Jones (a pseudonym) v DPP, where the Court noted:

orders sought by the applicant on this appeal included, but were not limited to, that the position of Queen of Australia is invalid, that no bill of the Victorian Parliament has been made law since 1919, that the current Victorian Parliament be dismissed, and that the Court appoint the applicant as ‘the autocratic Head of Government of the State of Victoria to establish the rule of law and a constitution with a majority decision of the Sovereignty of the People of Victoria’.²⁸

That application misunderstood changes to the constitution, the Treaty of Versailles, the inherent powers of the Victorian Supreme Court, and the Court’s status under the constitution. The failure of claims of a ‘rupture’ have been recurrently highlighted, notably by Hayne J in the High Court in 1998.²⁹

It is a common understanding that Australia is a settler state,³⁰ initially a set of British colonies that relied on a mix of imperial and local law alongside a historical consciousness that featured references to often-misunderstood (and, on occasion, mythologised) premodern documents such as the Magna Carta and the 1689 Bill of Rights.³¹ Federation at the turn of the last century saw most of those colonies become states (i.e., provincial governments) with a range of law-making powers and responsibilities for public administration. Several have discrete state constitutions.³² Other colonies became territories. The new national polity—the Commonwealth of Australia—gained autonomy. Its powers were expressed in a national constitution that established the national legislature and originated as an enactment of the British Parliament, signed by Queen Victoria. The constitution has been amended by a succession of national referenda. It does not enshrine a Bill of Rights³³ and at the national level there is no direct counterpart of, for example, the Canadian Charter of Rights and Freedoms.³⁴

The national constitution does not envisage and authorise secession by one of the Australian polities, for example, the state of Tasmania.³⁵ The individuals discussed in this article are not considered in international or domestic law to be a people or an ethno-religious minority that might achieve internationally-recognised statehood. The constitution does not provide for citizens (and, more broadly, residents) being able to unilaterally choose whether law applies to them. Those people are subjects of the law rather than individuals who have a sovereign status and can thus opt in/out of law at will. On a day by day basis, the legal framework within Australia often involves coverage by national law (and corresponding public agencies) and state/territory law (with their public agencies). That mix of legal systems potentially results in confusion rather than merely efforts to engage in regulatory arbitrage.

Through a lens of critical constitutionalism (and the common law constitutionalism of courts interpreting statutes and historic common law in addressing constitutional claims), there is value in considering how people, particularly those from marginalised communities, ‘read’ relevant national or provincial constitutions. By extension, there is value in considering reading of the broader legal framework governing public administration and private life in a pluralist society. Reference here to ‘the’ constitution rather than ‘their’ constitution is deliberate, given that some members of a polity may regard the constitution as invalid, rather than one they ‘own’ and should accordingly adhere to. Reference to ‘read’ relates to how people make sense of foundational statements of the hegemonic legal framework that affects them.

Within Australia, some individuals and groups have divergent readings of the constitutional framework. It is, in essence, a belief that they have an authority that overrides that of law founded on the constitution and that although they might enjoy the benefits of membership of the Australian community, they are not obliged to comply with particular laws. Some of the individuals discussed in the following paragraphs thus reject the formal constitutions in their jurisdictions and deny the authority of associated law and administrative bodies. That denial is in contrast to peers who might seek to modify a constitution through, for example, a referendum³⁶ or change law through a plebiscite³⁷ but do not question the validity of the overall legal system and have internalised assent to a constitution with which they are not especially familiar.³⁸ Others rely on an alternate understanding—potentially a matter of magical thinking rather than a conventional interpretation of legal syntax and vocabulary.

One type of rejection is that of individuals who assert that they are heads of state or have an equivalent ecclesiastical status, irrespective of not meeting tests in international law regarding statehood (for example, control over a specific geographical location and a discrete population). The assertion often relies on a fanciful adoption of signifiers of status (for example, claiming to be a king or prince) and authority (for example, flags and crests). It may be a matter of fantasy or fraud, as illustrated by some recent Australian instances.

John Rudge, for example, appointed himself Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, Knight of Bountiful Endeavours, Knight of Sword, Knight of Merit, Cardinal, and Archbishop of the Royal See of the Continent of Australia. His assertion of authority failed to gain recognition by domestic courts and the United Nations, ultimately signalled by bankruptcy.³⁹ David Siminton, in the course of corporate law offences, identified himself as the Governor of the State of Sherwood, claimed that his Principality of Camside was the only legal government of Australia, and declared that he now controlled Australia by default because the national government did not respond to turn up to battle.⁴⁰ The self-declared Prince Neal Lyster (Prince Palatine of the Kingdom of Heaven and Earth, Bishop of St David’s Diocese and governor of the Principality of Caledonia Australis), was similarly unsuccessful in Australian courts, with Goldberg J commenting:

Mr Lyster is labouring under a delusion that he is the head of a non-existent state and that his conduct is beyond the reach of the laws of Australia. Mr Lyster should realise he is quite wrong in this respect.⁴¹

The second type of rejection is a more pervasive phenomenon that has been dubbed sovereign citizenship. The terminology is loose. There is no specific definition in Australian statute law and courts have on occasion referred to sovereign citizens as litigants using a commercial straw man (OPCA). Courts in Australia and New Zealand, like those in the United Kingdom, have also noted similarity with Freemen on the Land claims in Canada and the United States.⁴² The indeterminacy of the terminology is unsurprising, given many OPCA claims in Australian courts are concerned with criminal offences rather than commercial disputes and that similar arguments are being used in a range of circumstances. That diversity reflects propagation through commercial advocates and social media.⁴³

3 Selfhood, citizenship, and contestation

Sovereign citizenship represents a conceptually incoherent engagement with law and authority rather than a discrete political movement, in particular one with a discernible leadership, organisational structure, and formal recognition as a political party or civil society body.⁴⁴ It is a manifestation of magical thinking, in essence faith that ritualised invocation of personhood and reference to rights in a common law constitution is sufficient to invalidate any law with which the particular individual disagrees and by extension deny the legitimacy of entities such as courts, legislatures, public revenue or police agencies, and commercial corporations such as banks.⁴⁵ Its appearance in courts, tribunals, and social media tells us something significant about the symbolic value of constitutions and about how they are fundamentally misread by communities whose rejection of authority is ostensibly legitimised through reference to past legal worlds that were largely fictive.

As foreshadowed above, sovereign citizenship centres on a constitutional rhetoric in which adherents assert rights but disclaim responsibilities and deny obedience to national, provincial, or municipal/rural governments when obedience would be personally inconvenient.⁴⁶ The article argues that the individual ‘sovereigns’ in Australia have a misplaced understanding of the modern legal order and the functioning of constitutions in contemporary liberal democratic states. Although their understanding is incoherent and administratively unpersuasive (and fostered by commercial providers of litigation templates),⁴⁷ it is not necessarily self-interested. Instead, it derives from a belief in a past without the ills of the nation state, a world of self-reliant agrarian ‘freemen’ and small communities whose legal order was fit for purpose because it was local, trusted, not bureaucratised, and predominantly oral. That past was fictive: law in the mediaeval and pre-mediaeval England to which some sovereign citizens refer did not provide suffrage to everyone (notably women) and much justice was not egalitarian. In contrast to the pseudo-monarchs noted above, sovereign citizens do not award themselves royal titles, design flags, and other regalia modelled on that in media such as Game of Thrones or grant honorifics to any followers.

Sovereign citizens conceptualise constitutions as a matter of rights, conditional adherence, and linguistic techniques to overcome state power founded on a constitution whose facticity they often deny. They implicitly embrace and rely on an alternate, unsuccessful reading of Australian law, pseudo-agrarian rather than pseudo-aristocratic or faux ecclesiastical. It is a reading that privileges the oral—communication between the like-minded—rather than forensic examination of constitutions and their interpretation by courts.

Sovereign citizens first attracted scholarly attention in Canada⁴⁸ but precursors are evident in the United States, often associated with an agrarian and racist rhetoric that features a Jeffersonian hostility to urbanism and valorisation of life on a colonising frontier without interference from a central government.⁴⁹ Daniel Baldino comments:

Sovereign Citizens (SC) and equivalent variations are a paradigm example of movements whose language is moving into popular culture. These actors do not believe they are subject to law or that they are subject to federal, state, or local law and any partnered regulations only as they interpret it. Further, despite its racist anti-Semitic origins, the modern-day SCM does not have a cohesive shared values base, cuts across demographic clusters, and can be drawn into a wide variety of convenient ideologies to rationalise anti-government hostility or suspicion.

This fluid SCM ideology, and changing notions of citizenship, is not a phenomenon isolated only to the US. The growth of such belief systems has steadily emerged in other democratic locations like Australia (Freemen on the Land), Germany (Reichsbürgers), and the United Kingdom (Lawful Rebellion). Other current protests such as the Ottawa truck blockade in Canada are strongly characterised by a co-opting of extremist SC language and tactics. …

[T]he SCM, while not necessarily coherent in the conventional way of thinking about political groups and systems, should also be seen as embedded with a wide mixture of conspiracy theories, alternative versions of history, constitutional re-interpretations, and binary “black and white” world views. …

[T]hese anti-government groupings tend to consolidate around alternative practices of self-empowerment beyond or outside the existing institutional (political and economic) structures. So, while the modern-day international SCM broadly aims to change society or politics at large, its actions do tend to manifest in several different sets of more locally based behaviours, both violent and nonviolent. All are grounded to the principle that government is illegitimate and laws can be disobeyed.⁵⁰

In Australia, sovereign citizens have featured in a succession of judgments, sometimes unreported, over the past two decades. Much of the language used by the Australian litigants has been based on material in circulation in North America, often in online fora.⁵¹ That language is also appearing in New Zealand and United Kingdom courts and tribunals,⁵² where there is increasing reference to what Netolitzky characterises as OPCA.⁵³ That argument is being used in criminal rather than merely civil proceedings and some claims by sovereign citizens are being assimilated by Indigenous individuals.⁵⁴

It may be tempting to dismiss the phenomenon as a matter of illness⁵⁵ or the manifestation of resentment in the face of economic uncertainty and status decline elsewhere expressed as Poujadism.⁵⁶ It is something attributable to the inadequacy of civics education, an outcome of filter bubbles on social media,⁵⁷ or simply to the willingness of people to make sense of the world by believing in what their peers consider to be atavistic nonsense. The persistence of some sovereign citizen litigants in Australia suggests that their beliefs—characterisable as an ideology⁵⁸—are deeply held. Those beliefs regarding the constitution and other law like those of some religious belief systems,⁵⁹ are reinforced by recurrent rejection. They are therefore both persistent and important for how the sovereign individuals see themselves and others, what psychologists characterise as self-concept.⁶⁰ The persistence is evident in identification of some sovereign citizens as vexatious litigants.

As judgments noted later in this article indicate, on occasion an individual’s belief appears to be associated with psychiatric problems that have resulted in preventive detention.⁶¹ Belief also appears on occasion to be associated with heterodox views regarding vaccination, quarantines, and other aspects of public health—a heterodoxy regrettably reinforced by extreme right/left political actors on an opportunistic or merely wrong-headed basis.⁶² In recent years, academic study has been complemented by official concern regarding the sovereign citizen belief system as a base for radicalisation that might lead to acts of violence by single-actor terrorists (aka lone wolf terrorists)⁶³ or law breaking by collectives such as rural white supremacists in the north-west United States.⁶⁴ The number of believers within Australia is unknown and typically only becomes publicly evident when an adherent attracts official notice, and thence media coverage, through a dispute regarding taxation, local government charges, traffic rules,⁶⁵ child support, bankruptcy,⁶⁶ environment protection, or a claim that a dog is a sovereign citizen.⁶⁷

Australian and overseas sovereign citizens have been understood as curiosities, as exponents of pseudolegal nonsense that wastes judicial time, or as potential dangerous criminals and as people whose actions require preventive detention. They can, however, be understood as practitioners of law as a form of magic, a legal ‘abracadabra’ whose incantation both reflects incomprehension about the contemporary justice system and an unsuccessful attempt at time travel to an imagined past. If law is a matter of spells, ritual and spectacle, the spells used by sovereign citizens are distinctly ineffective.

Their rhetoric generally involves claims that constitutions since the mediaeval period are invalid, with individuals being free of state or corporate authority unless each person chooses to assent. The point at which the supposed invalidity occurs varies, with some exponents claiming 1297,⁶⁸ 1920s,⁶⁹ 1953,⁷⁰ or 1970s,⁷¹ and others apparently regarding failure as a given without any need to engage in detailed historicist forensics. The rhetoric seeks to characterise each individual as a sovereign, a self-possessed individual with a legal status equivalent to a state, and lawfully ignoring obligations such as taxation, traffic rules, child support, firearms restriction, and environmental protection.

That supposed lawfulness might be attributed to the illegitimacy of the state, legislatures, and courts. It might instead be attributed to a form of self-possession too, with litigants in civil or criminal proceedings for example asserting that prosecution is invalid because the individual has not entered into a contract with the state,⁷² that the state has failed to respond to a demand to end prosecution (and must thus pay the litigant several million dollars in silver or face action in a judicially unrecognised forum such as the ‘Moot Court of Terra Australis Incognito’).⁷³ In Reiman v Commissioner of Police, for example, the appellant claimed:

• 1. “I, Yvette Terese, the affiant, am not a Legal Fiction Person nor a Corporate Entity or some kind of Partnership, BUT INSTEAD am a living breathing, sovereign, flesh and blood Human Being with a living soul, with a distinct Mind is capable of possessing Knowledge”;

• 2. “I am a woman, a living woman. I am not dead or lost at sea. I stand under the jurisdiction of my flag”;

• 3. The appellant had renounced any “contract” or “agreement” with any government agency or entity;

• 4. “slavery and peonage are immoral and fraud, misrepresentation, nondisclosure, intimidation, deceit, concealment of material fact, lying, and treachery are morally wrong”;

• 5. The appellant had “absolutely no desire whatsoever to be a “client” (slave) of any governmental agency, state or federal”;

• 6. The appellant had “unalienable/inalienable indefeasible rights to life, liberty, freedom and property”.⁷⁴

The Court notes that Reiman indicated:

• 1. She did not recognise Queensland as a jurisdiction of the Commonwealth of Australia and she is not subject to the statutory laws and jurisdiction of the State of Queensland, because laws were created by God, in the Bible, upheld by the Magna Carta and reflected in the constitution, and because of the operation of s 109 of the Commonwealth Act 1901;

• 2. The police acted without lawful authority;

• 3. The Magistrates Court and District Court are unlawful and have no jurisdiction over her;

• 4. Persons interacting with her must produce evidence of their lawful authority and pay a fee of “four-hundred-thousand dollars credit in gold or silver”;

• 5. She was travelling under her “inalienable right” under the Magna Carta and ss 51 and 92 of the Commonwealth Constitution;

• 6. The police were committing “war crimes” under the Geneva Convention;

• 7. When arrested she was “kidnapped” and falsely imprisoned.⁷⁵

As illustrated in that example, Australian sovereign citizenship often features assertions that obligations are voided through language about an individual’s name or supposed rights to settle disputes through ad hoc ‘juries’ that erase the authority of legislatures, statutes, and formally appointed embodiments of state authority such as judges, police, welfare, and public revenue officials. It is unclear whether any ‘moot courts’, ‘peoples juries’, or ‘sovereign citizen courts’ have been established. They have no legal standing.

The rhetoric also selectively denies the authority of private sector entities such as banks, with sovereign citizens frequently claiming that debts to corporations are not enforceable, although apparently willing to borrow from lenders.⁷⁶ In the face of supposed constitutional failure, the sovereigns apparently consider that they are entitled to enjoy the same benefits as their non-sovereign citizens, for example suffrage, certainty of contract, use of public facilities such as roads and schools, and access to the national welfare system. As noted above, they assert rights, often claimed to be expressed in the Magna Carta⁷⁷ and ‘the Nuremberg Code’ or even Anglo-Saxon law predating the Norman Conquest.⁷⁸ That assertion is unsuccessful:⁷⁹ the Magna Carta, for example, did not provide exhaustive rights for everyone and is not a constitution overriding constitutional frameworks in India, Canada, New Zealand, and Australia. Its durability as a talisman of rights is a reflection of constitutional illiteracy and a populist invention of tradition.

The sovereign citizenship understanding is incoherent. In essence, sovereign citizens think of law as a sort of smorgasbord: take what you like, reject what you do not like. They are conscious that the state has a constitution, one given effect by law enforcement and other government bodies alongside acceptance—typically an unquestioning acceptance—by the community as a whole. The citizens, however, consider that it is not their constitution: the judges, banks, environment protection officials, and police who take the constitution as a given are wrong. More importantly, the conceptual error and agency of the misguided individuals and institutions can be overcome through magic, expression that will command the obedience of judicial institutions and public/private decision-makers.

As subsequent paragraphs illustrate, trust by sovereign citizens in the efficacy of magic as a mechanism to overcome the constitution and give effect to fictive past legal regimes has never worked. However, litigation in Australia and elsewhere indicates that belief by sovereign citizens in the moral and ontological validity of their claims is often unresponsive to failure in disputes, with individuals relying on demonstrably ineffective claims in a succession of disputes and the same claims being embraced by peers who then experience the same failure. One conclusion is that among some adherents, the understanding is deeply held rather than self-interested (i.e., not what a desperate individual considers to be an implausible excuse or justification) or seen by the adherents as a joke. It resembles social phenomena such as millenarianism, where the faith of ‘true believers’ is strengthened rather than eroded through disappointment when successive announcements about the end of the world are not substantiated.⁸⁰

4 Constitutional magic

Scholars from E E Evans-Pritchard⁸¹ and Marcel Mauss⁸² to J L Austin⁸³ have noted that law is a matter of doing things with words. Words affirm and condemn. Words bring some things into being, end others, modify relationships, or ameliorate harms. They manifest power and a dominant understanding. On occasion, they are misunderstood. Sometimes their ineffectiveness, and the derision of bystanders about an ‘abracadabra’, reinforces a user’s belief in their legitimacy and an understanding that is at odds with hegemonic practice such as the Australian, United States, and Canadian justice systems.

Sovereign citizens in those jurisdictions can be understood as deluded, constitutionally illiterate, or the victims of individuals selling sovereign citizen litigation templates and workshops.⁸⁴ They can, however, also be considered as practitioners of constitutional magic, in other words, understanding law as something that can be commanded by utterance in a specific form without regard to the meaning of the utterance. Sovereign citizens, whether opportunistically or as part of a mistaken but genuinely-held understanding, are engaging in a form of legal magic. Their practice centres on incantations in judicial fora, with those incantations having a power analogous to pre-modern magic that was thought—if the spells were correct—to have power over the natural world. It is quixotic because it takes place in and supposedly determines the outcome of fora whose formal existence (and legal authority) is axiomatically denied by the individual uttering the incantation.

Within contemporary Australia as a pluralist but predominantly secular state, magic has come to be considered as an entertainment: a matter of performers pulling rabbits out of hats, sawing people in half on television variety shows, or individuals relying on the tarot for advice about fashion, personal relationships, and investment decisions. It has, more bleakly, been understood as the subject of egregious exploitation by figures such as black magic practitioner and scammer Man Haron Monis,⁸⁵ subsequently notorious for mass murder at the Lindt Café.⁸⁶ If we look at the interaction of sovereign citizens with contemporary justice systems, we can discern two facets of magic practice relevant to constitutional law.

The first is what Malinowski in 1935 characterised as the confidence theory of magic.⁸⁷ The practitioner of magic, through, for example, utterance of specific words or phrases that have no meaning in themselves, gains a sense that he or she is mastering nature and is therefore able to take on tasks or responsibilities that would otherwise be impossible or simply daunting. That theorisation might account for why sovereign citizens engage in claims that their non-sovereign peers such as judges would regard as nonsensical. For many people, appearance in the theatre of justice is daunting. Litigation in many jurisdictions is adversarial and even experienced practitioners may be anxious about procedure in court. Having confidence that possession of the magic words may overcome a more powerful and legally-skilled opponent may therefore encourage sovereign citizen litigants, who are typically self-represented rather than relying exclusively on legal practitioners who have a standard understanding of the relevant constitution.

What is that magic? 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 the deity to be merciful. We ask the deity 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 the magician if commanded 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.

The second facet is, therefore, that irrespective of the conventional meaning of words, the oral or written utterance of particular signifiers or phrases will necessarily have a material effect on the entity (such as a judge or a taxation office) that the sovereign citizen wishes to command and by extension override or simply replace the constitution that inconveniences the sovereign citizen.⁸⁸ There is no need of herbs or black cockerels or summoning a demon; adherents assume it is sufficient to use particular language. That language comes from a contemporary invented tradition, conceptualised by Eric Hobsbawm as:

a set of practices, normally governed by overtly or tacitly accepted rules and of a ritual or symbolic nature, which seek to inculcate certain values and norms of behavior by repetition, which automatically implies continuity with [a suitable historic] past.⁸⁹

So, what does the spell making look like? We can see a couple of things. One is the argument that a sovereign citizen has two simultaneous existences, sometimes characterised as the straw man argument.⁹⁰ Existence Number 1 is their ‘living body’, the thing you see face to face and indeed might be incarcerated. That person has free will and independence, based on a religious text or a fantasy about the Magna Carta or some other superseded law. Existence Number 2—a supposedly discrete other existence—is their legal personality, an identity that might be signified by, for example, a customer number or tax file number or welfare system identifier. You can think of identity as resembling a set of clothes: put them on, take them off, throw them away. The different existences can supposedly be given effect through reference to living bodies,⁹¹ individuals being ‘of a house’ in expressing their surname,⁹² representing their names in capital letters or a particular font and colour, or purportedly invalidating the authority of a decisionmaker by asserting a ‘rupture’ in constitutional legitimacy (such as conversion of the Commonwealth of Australia to a corporation registered in Delaware).⁹³

Sovereign citizens accordingly argue that when they choose, 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. On occasion, some sovereigns attribute the authority to a deity, for example:

The Creator created the universe, the earth and life. Humans, as a creation of The Creator are inherently equal and have inherent rights. These rights, bestowed by The Creator, cannot be compromised or undone by any other, but The Creator. That being said, the state or government was created by humans and is thereby subservient to humans. The creators of Canada acknowledge these inherent rights cannot be violated and have stated the Charter and Constitution only applies to the government, see Appendix A. I, Geofrey J Schneider, am the living man. As such, I am not, at any time performing on behalf of, or contracting with the government. I am always in the Private unless I issue a statement otherwise. Therefore, all government statutes, acts and codes do not apply to me. As a man of The Creator I follow inherent jurisdiction which states that I am free to do whatever I see fit as long as I DO NO HARM.⁹⁴

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.⁹⁵ You might hyphenate your given name and surnames and even add terms such as living body to your name. One litigant accordingly explained:

My BRADLEY person (conjoined with the BRADLEY ‘spiritual’ family body-politic) is my own “body politic” by succession, at Law. It is my natural body incorporated at the supreme Christian Law and is my own jurisdiction.⁹⁶

Preceding paragraphs have referred to convenience, given that sovereign citizens apparently do not use that ‘abracadabra’ in ordinary documents. They leave it for when they are heading into court, contesting an administrative decision, disregarding road rules,⁹⁷ or disclaiming liability in pre-emptively writing to a revenue agency.⁹⁸ There is considerable uncertainty about this and it is unclear whether banks, insurers, government agencies, and others are systematically using filters, for example, rejecting a credit application where the potential borrower identifies herself as a ‘living person’.

Sovereign citizen claims in court feature what one Northern Ireland Court characterised as:

a kaleidoscope of pseudo legalistic jargon, alien to law, practice and the administration of justice in any modern common law jurisdiction and in short is largely nonsense.⁹⁹

A recurrent unsuccessful claim in Australia by people driving unregistered vehicles without a driver licence has been that their action is legal because they are ‘travelling’ rather than driving and are somehow not in control of or responsible for the vehicle.¹⁰⁰ Such semantic legerdemain is often apparent in documentation supplied by sovereign citizens and by advocates on their behalf during judicial proceedings. It is often prolix and stated by courts to be irrelevant, factually correct, and contemptuous. In one of many judgments regarding vexatious litigant Wayne Glew, the Western Australian Supreme Court accordingly noted:

The appellant’s written outline of submissions did not advance the matter. It consisted, without any explanation as to their relevance, of the reproduction of a number of provisions of the Crimes Act 1914 (Cth), Criminal Code Act 1995 (Cth), Crimes Act 1958, Judiciary Act 1903 (Cth), Commonwealth of Australia Constitution Act (Cth), and miscellaneous other legislation, extracts from Black’s Law Dictionary and, from The Bible, extracts from the books of Exodus and Zechariah, the second epistle of Paul to the Corinthians, the epistle of James and the gospel according to St Matthew.¹⁰¹

Viewed through the lens of comparative constitutional law, that inadequacy might be perceived as a matter of constitutional illiteracy, an outcome of disadvantaged people in conflict with the state (or with other people), and needing support to navigate a legal system and administrative process that is daunting because of insufficient experience and education. A civics program and mechanisms such as assistance from an amicus curiae might accordingly be useful, alongside determination of whether an individual is fit to plead. This positive view is instrumental and at odds with understanding sovereign citizenship as a matter of people believing that their (fictive and egregiously simplistic) constitution is the legitimate source of law in the relevant liberal democratic state, that citizen courts and tribunals established under that constitution are legally valid, and that nonrecognition or other decision-making by conventional courts can be overcome through magical formulae that have no semantic content.

The scholarly literature on sovereign citizenship has centred on the OPCA noted above. A somewhat different perspective is that sovereign citizen arguments in Canadian, British, New Zealand, and other courts often have a commercial focus but in fact are repetitive rather than ‘organised’. Conceptually, they are incoherent. Although they sometimes feature citation of judgments or archaic texts, those citations are rarely relevant. The arguments do not point to a foundational exposition of principles and do not expressly draw on libertarian or other theorists such as Robert Nozick.¹⁰² In part, that appears to be a function of resentment of metropolitan elites, in particular professionals such as lawyers and health practitioners who have ‘taken the law’ out of the hands of ‘the people’. In part, it is a matter of sovereign citizen understanding of the world, or rather of social norms and dispute resolution at a local level: an understanding in which a village focus does not accommodate the realities of globalised commerce, social mobility, and multiculturalism. That is one reason why some sovereign citizen advocacy in the United States is merging with far-right calls for a separatist ‘Aryan’ libertarian state in a ‘frontier’ location such as Montana.¹⁰³

The frustration experienced by sovereign citizens in giving effect to their needs or values through conventional courts operating under national and provincial constitutions (in Australia, no sovereign citizen claim has been successful) is reflected in purported establishment of sovereign citizen courts that claim domestic or international authority.

In 2021, for example, an Australian ‘Sovereign People’s Common Law Court’ was reported on social media to have found the Prime Minister, Premiers of all Australian states, and all Chief Health Officers guilty of “Violating the Nuremberg Code!”. It accordingly sentenced those people—who did not appear in the ‘court’—to 120 years imprisonment.¹⁰⁴ A year later, a litigant relied on a ‘Galactic Emissary’ supposedly authorised by the ‘Moot Court of Terra Australis Incognito’.¹⁰⁵ The theatrics were ineffective. There are no indications that such unrecognised courts are actively addressing neighbourhood disputes as a sort of low-cost, lawyer-free alternate dispute resolution.

5 Conclusion

Australia has not seen the emergence of a sovereign citizen political party or association. That is perhaps unsurprising, given the emphasis of sovereign citizens on individuality and hostility to organisations. There has not been a widely-accepted Sovereign Citizen Charter or overarching communique. It is unlikely that one will develop for critique as a replacement of or alternate reading of the national constitution. Assessing Australian sovereign citizenship as a matter of rights, freedoms, duties, democracy, government, and the state is a challenge given the incoherence of its expression and its refraction through the judgments of courts, tribunals, and bodies such as the Fair Work Commission.

One conclusion is that the sovereign citizens whose interaction with the law has provided citations in this article emphasise personal rights rather than responsibilities, rights apparently to be enjoyed by the citizens in circumstances where there is a conflict with the rights of individuals who are not ‘sovereign’ and the broader community. The freedoms asserted in courts range from an immunity from compliance with traffic, firearms, and environmental protection law, through to a privileged status in contractual relationships with banks, insurers, telecommunication service providers, and other businesses. Through the lens of the jurisprudence, it is unclear how the sovereign citizens demarcate duties. Some appear to be in receipt of state-provided welfare support, use public roads, and access services such as water and electricity rather than living a very isolated life ‘off grid’. It is unclear whether disregard for the state means that they choose not to use Australia’s state-provided public health and education system or instead resort to a mix of home-schooling and communitarian private welfare mechanisms in instances of need. The rhetoric suggests that they are biased towards a minimalist state that embodies libertarian values and encourages self-sufficiency, with a plebiscitary democracy functioning through small-scale polities. Readers might draw other conclusions relevant to critiques of constitutional thinking.

Weber commented that modern states reserve to themselves a monopoly of legitimate violence,¹⁰⁶ reflected in the construction of two positive legal identities (police and armed forces) and a negative identity (the criminal). In thinking about the sovereign citizen phenomenon, we might conclude that liberal democratic states—recognised as members of the international community—reserve to themselves a monopoly on the legitimate use of magic in relation to the constitutions applicable to their citizens.

Constitutional scholars are perhaps inclined to take for granted an understanding of the vocabulary and grammar of constitutions, an understanding that is not shared by most people and in practice is not necessary for the legitimacy noted above. Courts have grappled with practitioner use of language, with, for example, statements such as:

‘Mutual trust and confidence’, ‘good faith’, and ‘fair dealing’ have become terms to conjure with in employment litigation. They are the ‘abracadabra’ of the plaintiff lawyer, sprinkled liberally over statements of claim, in the hope of summoning up some exceptional damages award from a mundane termination of employment claim. Sometimes, apparently miraculously, they work. Most times it seems the plaintiff is disappointed. This note on the Russell litigation dissects one of the failed cases, to shed some light on when the magic will work, and when it simply won’t.¹⁰⁷

Lord Neuberger cautions that in dealing with ‘abracadabra law’, judges look to ‘the realities not formulae’.¹⁰⁸ Much of the ritual evident in judicial proceedings, signifying the significance of administrative protocols and law to practitioners and non-specialists alike, is unintelligible to many people and perhaps powerful because that unintelligibility takes it outside normal discourse.

Another conclusion is that the expression of sovereign citizenship features spells that are cast by believers in domains where they cannot work and that disadvantage the magicians. This article has noted the irony of sovereign citizen litigants relying in judicial proceedings on arguments that the specific courts have no authority per se, administrative bodies are invalidly constituted and litigants are free to graze at a legal smorgasbord. Sovereign citizens may derive comfort from assertions on social media that authority figures are subject to and have been condemned by a sovereign citizen ‘common law court’ (such as that condemning all Australian senior politicians and health officials to death or 120 years imprisonment), but that is a matter of failed rhetoric—ineffective persuasion—that resembles the assertion of sovereignty by the self-appointed kings, emperors, dukes, princes, and other ‘rulers’ of the cosplay pseudo-states.

A final conclusion is that magic that does not work, as with the practice of sovereign citizens, may have three outcomes. The first, most positively, is that sovereign citizens abandon the belief system in favour of conventional understanding of the constitution and of legal practice. The second is that ‘true believers’ are likely to persist in what courts consider to be nonsensical, time-wasting, and otherwise abusive claims, and are accordingly deemed to be vexatious litigants.¹⁰⁹ In discussing Glew’s status as a vexatious litigant, the WA Supreme Court unsurprisingly commented that his arguments:

In substance, ... simply repeat the same contentions, or variations of the same contentions, which the appellant has advanced over and over again, and which this court, among others, has rejected over and over again. They do not improve by repetition; they remain as devoid of legal merit as they were at the outset. None has the remotest prospect of success.

The point has long since been passed where the appellant’s persistence in advancing these contentions could be put down to a lack of understanding of their absence of legal merit. It can now be attributed only to an obduracy which is impervious to reason and which is unlikely to diminish. The fact that in an appeal against the finding that he was a vexatious litigant the appellant has advanced the same sort of fallacious contentions which caused that finding to be made in the first place bears that out.¹¹⁰

The third, most worryingly, is that the frustration experienced by practitioners of the magic may make those people more receptive to other heterodox belief systems, for example claims that COVID pandemics are being engineered by elites as part of a New World Order,¹¹¹ and accordingly resort to violence. That agency is unlikely to result in armies of disaffected sovereign citizens. It may, however, result in what is conventionally dubbed lone wolf terrorism,¹¹² action directed against symbols of authority and the contested constitutional regime such as talismanic buildings housing legislatures and constitutional courts such as the United States Supreme Court and Australian High Court.

Critical constitutionalism potentially offers a basis for substantive law reform that provides a legal framework that is more just and administratively effective, thereby gaining the support of both constitutional scholars and people who are directly affected by that framework. The range of legal understandings characterised as ‘sovereign citizenship’ are an unconventional and unpersuasive critical constitutionalism. They are noteworthy as illustrations of how individuals read/misread law, rights, responsibilities, and constitutions. They are also noteworthy as manifestations of anxieties, resentment, or other discontent. They do not, however, embody a viable programme of constitutional law reform and in practice will continue to be unsuccessful when voiced by adherents in judicial fora.