Hawaii the jurisdiction of choice for Australia’s sovereign citizens … Max Shanahan gets to grips with “pseudolaw” … Fruitcake theories … Conspiracies writ large … Deluge of cases
Within the space of three weeks over February and March, three Australian plaintiffs filed complaints in Hawaii, attempting to sue a range of Australian solicitors, registrars, magistrates and judges over perceived injustices and conspiracies in domestic courts.
They relied on a combination of the Commonwealth Judiciary Act, the International Covenant on Civil and Political Rights and the US Alien Tort Statute of 1789, and asserted jurisdiction for supposed human rights violations perpetrated against them by the Australian legal system.
Backed by reams of intricate yet nonsensical pseudolegal reasoning, the litigants are the legal vanguard of a movement increasingly making itself known in the courts.
The case of Donna Markwell, who attempted to sue Federal Court judge Elizabeth Cheeseman in Hawaii, provides an example of the reasoning and connections behind these claims, as part of a broader wave of “pseudolaw” litigants turning up in Australian courts.
Markwell, previously of South Australia, was associated with a sovereign citizen group known as the “People’s Peace Alliance”, run by Solange Goodes from her farm on the outskirts of Adelaide.
In September 2021, Goodes was arrested by tactical police after a stand-off at her farm, and charged with firearms offences and making threats to cause harm. Police removed 13 unregistered firearms from the property, including shotguns, rifles and a replica gun.
Dr Kaz Ross, a researcher of far-right extremism and conspiracies, told Justinian that in her opinion Goodes “is one of the people likely to cause a mass shooting, either by herself or by one of her followers. Her followers on her farm saw her as a sort of guru speaking from another dimension”.
Around the time of Goodes’ arrest, Markwell’s daughter was removed from her care by child protection authorities, sparking the legal journey which has led to Hawaii.
It is difficult to make sense of the different legal theories and conspiracies relied upon, which vary significantly between different sovereign citizen groups.
A basic element is a distinction between “corporate law” and “natural law”, in which the former includes the Crown and courts – parties to a vast conspiracy – and the latter corresponds to each person’s “God-given sovereignty”, granting individuals “superior jurisdiction” in any court.
In a speech last year to the Queensland Magistrates Conference, Judge Glen Cash described “pseudolaw” as:
“The “inside knowledge” that permits the litigant to command a power kept secret from others.
It can drive some litigants into a fervent, if not febrile, pursuit of what they perceive as ‘justice’.”
This perceived “superior jurisdiction of the Divine Crown” has led to a profusion of sovereign “courts”. Markwell was involved in setting up the Common Law Court of South Australia, before it was “shut down”, where sovereign citizens planned to put police and the local council “on trial.”
Ross describes a situation in which people “are running around with sheriff’s badges on” and “trying anyone who goes against the ‘will of the people’ for treason, the punishment for which is death”.
Markwell is also connected to a group known as the Terra Australia Grand Jury, whose meetings verge between the comic – much of the four hour long jury meetings are taken up with telling retirees to unmute themselves – and the troubling.
There are diatribes on Vatican trust funds and “firings” of judicial officers mixed with the megalomania of a host whose website claims to “represent the highest authority in Law”.
After her child was returned to her care, Markwell told Goodes’ YouTube channel that “God’s strength in me was stronger than the satanic court”.
She sought to commence proceedings against South Australia for the war crime of deprivation of liberty, acting as a “prosecutor ex officio,” and claiming the “maximum penalty” of $1.071 million per day of her daughter’s “imprisonment”.
Inevitably, the registrar refused to accept Markwell’s documents for filing – for their failure to establish jurisdiction. An appeal of this ruling to the Federal Court followed, in which Justice Cheeseman upheld the registrar’s determination. The natural next step was for Markwell to bring a claim against Cheeseman and the registrar in Hawaii.
Like so much of sovereign citizen reasoning, it is difficult to tell how Markwell and her fellow litigants landed upon Hawaii as their jurisdiction of choice.
The US District Court in Hawaii said they “could not speculate” as to why the parties were filing in their jurisdiction.
Asked why she filed in Hawaii, Markwell simply told Justinian that “it was offered” and that she “researched it”.
In a “show cause notice” issued to the Hawaiian court, Markwell relies upon s. 56(a) of the Judiciary Act 1903 to argue that the existence of an Australian consulate in Honolulu grants jurisdiction to a person to bring a claim against the Commonwealth in any court in a location where “the Commonwealth had at any time been resident in that city or town”.
Where the litigants derived this pseudo-authority is a puzzle, although posts in one sovereign citizen Telegram group in early February used s.56 to “start teaching assembly members about Tort law,” because “we are now taking court cases into the US courts”.
Alongside some impenetrable logic about law as a commodity and Australia’s position as an ally of the United States, the second main strand of legal reasoning concerned the 1789 Alien Torts Statute.
Under US law, the ATS “provides federal jurisdiction for a modest number of international law violations”. Claims brought under the statute must “touch and concern the territory of the United States”.
In their claims, the Hawaiian litigants argued that a 2020 article by NYU law professor David Golove showed:
“[the statute] was intended to be an extension by the Founding Fathers of the Power of the Lord, God Almighty of the might and majesty of the Most High God, who had blessed the new United States of America to all people equal before the law.”
Professor Golove told Justinian:
“I’m not sure what to say about any of this … it would be a waste of time – and yet another blow to one’s sense of sanity – to try to understand whatever these litigants might be saying.”
In belatedly dismissing the applicants’ claims, Judge Otake agreed:
“The article merely posits that that ATS was not intended to limit the scope of US Nationals for torts committed abroad.”
The cherry-picking of archaic statutes and obscure articles to prop up an expansive vision of global conspiracy is typical of the thinking of the sovereign citizen movement.
Undaunted by logic and self-critique, with ranks swelled by the pandemic, conspiracy theorists have brought a “deluge” of cases to lower courts, says Ross, such that authorities have moved to organise training sessions for magistrates on how to deal with sovereign citizens in their courts, and legal academics have begun to engage with the topic.
While it is natural to dismiss sovereign litigators as unhinged, says the University of Otago’s Stephen Young, “legitimate legal issues may be buried under pseudolegal gibberish and could be dismissed too hastily.”
Judicial officers should proceed with “a patient but thorough form of engagement, not mockery and minimalisation”. Difficulty arises when attempting to distinguish between those who are no more than deluded amateur legal adventurists, and those who might take action on violent motives.
Even so, patience can only go so far when dealing with litigants who operate outside the bounds of reason and view courts and judicial officers as “enemies of the people”.
Before dismissing their claims, Judge Otake granted the Hawaiian litigants time to amend their filings. Ross says this approach “will only encourage them. They need to be dismissed as vexatious litigants”.
Despite the ultimate failure of her case, Markwell tells Justinian:
“Just the fact that the United States District Court filed the matter and accepted the filing fee has put the fear of God Almighty back into the system in the Commonwealth of Australia.”