Mia Armitage* with Fernando de Freitas
Sovereign citizens: by now, thanks to debates and protests over public health orders and COVID-19 vaccinations in Australia, you’re probably aware of the term and associated movement.
You might also have learned of the term’s origins in the United States and have heard about its connections to today’s alt-right politics.
But how are sovereign citizens regarded under Australian law? Can we really tell authorities we ‘don’t consent’ to rules around mask-wearing, public gatherings or, as was more common before the pandemic, traffic and drug offences, and be excused?
The person known as David Heilpern
What if we distance ourselves from the name on our identification records, saying instead ‘the person known as…. [insert legal name here]’ when dealing with bodies we consider corporations (like the government, the police and courts)?
Can we tell a judge we never willingly entered into a contract with these entities and ultimately have our freedoms recognised? Aren’t our rights protected in the constitution?
Definitively not, says former NSW Magistrate and occasional Echo contributor David Heilpern.
In his days as a lawyer, Mr Heilpern fought to make an argument that criminal laws didn’t apply to First Nations people.
He says his arguments failed at every level of court in Australia, despite the well-known absence of a treaty (what you might consider a ‘contract’) between European colonisers and indigenous people.
Mr Heilpern later spent ten years as a magistrate on the Northern Rivers, where he says he encountered a person ‘every week’ in court declaring that laws didn’t include them because they’d signed unilateral contracts removing them from the law’s scope.
The deep southern US racist roots of sovereign citizenship
The sovereign citizens movement became popular enough for magistrates and judges to call for more research to be done and Mr Heilpern was one of those to answer the call, reviewing every case he could find in Australian legal history with the reference and uncovering its American roots.
The former magistrate spoke earlier this month of his experience dealing with sovereign citizens with Bay FM Above the Fray host Fernando de Freitas and the following is a lightly edited transcription of part of that interview.
David Heilpern [DH]: There’s a couple of terrific judgments from its place of origin, which is the deep south of the United States of America, where essentially, a racist right-wing strawman movement started whereby people created this idea of them not being members of community and declaring themselves not to be bound by the laws of where they live.
It was essentially because they didn’t like the laws, as things changed and became more liberal. For example, segregation ended and voting rights for black people occurred. So it is born out of that movement, out of the right-wing, racist movement from the south of the United States.
Former magistrate delivers verdict on sovereign citizens beliefs in Australia: ‘mistaken’
DH: Sovereign citizen core beliefs come from an essential mistake in understanding things about the law: you don’t have to consent to the criminal laws of the state or the Commonwealth applying to you.
It’s a really basic mistake to say, ‘well, if I don’t consent, then the laws don’t apply to me’ and if you think about it logically, for one second, you realise that it is a mistake.
I mean, the laws apply to you by virtue of the fact that the laws apply to you: there’s no opt out or opt in process when it comes to criminal law.
You’re either part of it because of your birth, or you’re part of it by virtue of the laws themselves.
Zero legal basis for sovereign citizens in Australia, says former magistrate
Fernando de Freitas [FDF]: So any of their legal arguments, do any of their legal arguments have any legal basis whatsoever here in Australia?
DH: I want to be very clear and very emphatic about this. There is absolutely no legal basis for any of their core beliefs. None, zero.
The closest I think we’ve come to in the law, taking a whole lot of steps back and going back to the very basics, is Terra Nullius and the Mabo decision.’
Speaking later to The Echo, Mr Heilpern said it was ‘remote and tangential’ to ‘step back in time to change things in comparison’ to what First Nations’ advocates were arguing at the time of the Mabo debate.
Remember: there is no human rights charter in Australia!
FDF: What about discrimination? Is [enforcement of, for example, mask-wearing] a breach of the 1948 charter of human rights as they say?
DH: Well, it’s an interesting thing. I think there’s a mistake that people make when they troll through charters of international rights, that just because Australia’s a signatory to them means that they apply as law in the country.
There needs to be an enabling piece of legislation to trigger those international covenants and international agreements, application within the state or Commonwealth sphere.
For example, charters of human rights have a lot of principles, they have a lot of of recommendations, and Australia has signed them.
That doesn’t mean that they’re the gospel law in Australia.
So, for example, we have signed human rights declarations about the rights of children, the rights of children to be housed, etc.
But that doesn’t stop the government locking up refugees, children refugees, because even though we’ve signed these, we haven’t enacted them and in fact, we’ve enacted laws contrary to them.
If there’s a battle between some International Covenant or agreement we’re a signatory to, the law that’s been enacted wins hands down every time.
Sovereign citizens tested in ‘every level’ of Australian justice system, says Heilpern
FDF:So just to be clear, once again, all of their arguments that they make, have they all been fully tested in Australian courts?
DH:Absolutely. They have. Not only have they been tested, they have been thrown out at every level: at local court; at district court and Supreme Court; at High Court; in the federal jurisdiction, in the Federal Magistrates Court and again, in the High Court; in tribunals around Australia as well, like NCAT within New South Wales or QCAT within Queensland.
They have been thrown out every single time they’ve been raised.
I go periodically to their websites, where this material is discussed, and I’ve read the claims of some of the organisations that say, ‘we’ve represented this person and they had a win because they didn’t need a driver’s license in Victoria’.
It’s all utter garbage and when you go looking for the actual cases, or any real reported decisions- I’m not talking about anecdotal reports, I’m talking about decisions that are reported in the law reports- they’re not there.
They just don’t exist.
There is a great fraud taking place against the community on these websites that claim that sovereign citizenship works in courts around the country because it never has, it never will and it doesn’t.
‘Worthless’ sovereign citizen kits defrauding real-life citizens online
FDF:What do you mean by fraud? What is going on here?
DH: I’ve seen websites where they’re charging people for so-called ‘sovereignty kits’: where people pay money, they get a kit that enables them or gives them the tools to declare themselves and sign the binding contracts and challenge the constitutional ability of courts to make their determinations and indicate that they’re not part of the corporation.
These kits are worthless, are completely valueless, and to pretend that they give anybody the ability to win court cases is fraudulent in the sense that it is taking money from people for nothing.’
Case dismissals unlikely to refer to sovereign citizens, ex-magistrate says
The Echo spoke to Mr Heilpern after his interview with Bay FM and asked him to respond to allegations official law reports omitted cases that were dismissed and featured sovereign citizens.
‘Not all cases are reported, that’s true,’ Mr Heilpern said, ‘but if anybody had a case dismissed on the basis of sovereign citizenship that would certainly be reported because that would be historic and would change the fundamental system of how the criminal justice system works’.
Mr Heilpern said the commonly known ‘Section 10’ law in NSW gave magistrates and judges the power to find people guilty of certain offences in certain circumstances but to effectively excuse them by not recording the conviction and not requiring them to serve any sentence or pay any fines.
He said it was possible some people viewed the Section 10 cases as examples of sovereign citizens successfully circumventing the law but explained they were usually reserved for first-time offenders, like teenagers smuggling cannabis into music festivals.
‘It’s not a dismissal in the sense of any acceptance of the sovereign citizens’ arguments,’ he said.
Common by name, common by law
The Echo also asked Mr Heilpern what the significance of so-called ‘common law’ was in comparison to the law we hear being enforced.
‘Common law is traditionally known as judge-made law,’ Mr Heilpern said, ‘but obviously a judge-made law yields to legislation, so common law exists alongside legislation’.
‘Ccommon law yields to legislation,’ Mr Heilpern said.
*Mia Armitage is a Bay FM member. Listen to this interview here.