Some believe they are bound by statutes only if they consent to them. They engage in obfuscatory tactics in court, making bizarre arguments based on what could only be described as pseudo law

Sociologist Paul Spoonley tells us that some of the messages coming through at the Parliament occupation reflected a growth of extremism that has been developing for some years (The Conversation republished in LawNews 11 March 2022).

Spoonley’s specialist area is social change and demography and how this impacts policy decisions at a political level.

In that respect, he has co-authored a paper Sustaining Aotearoa New Zealand as a Cohesive Society (Gluckman P, Bardsley A, Spoonley P, Royal C, Simon-Kumar N and Chen A. University of Auckland Centre for Informed Futures December 2021).

In this paper, about which I have written elsewhere, the theme of disruption of society by extremist elements is clear and the objective of social cohesion (or as I see it ‘social conformity’) is advocated.

Spoonley has for some time investigated one of the major flavours of extremism – what could be characterised as right-wing extremisim – noting some of the subsets manifesting themselves in this country.

Spoonley may be just old enough (he would have been 13) to remember the words of Barry Goldwater at his acceptance of the Republican nomination at the Cow Palace in Daly City, California, in 1964.

Goldwater claimed that extremism in the defence of liberty is no vice; moderation in the pursuit of justice is no virtue. Goldwater’s role in the resurgence of the Right in American politics is brilliantly documented in Rick Perlstein’s tetralogy Before the Storm, Nixonland, The Invisible Bridge and Reaganland – required reading for any student of American politics.

The Right described by Perlstein and the extreme Right described by Spoonley are quite different.

One of the subsets of right-wing extremism that Spoonley describes is that of the ‘sovereign citizen’ – a phenomenon not unknown to those of us who have worked in the courts.

‘Sovereign citizens’ have been appearing before the courts and advancing their ‘interesting’ arguments for the past 15 or so years. Spoonley suggests the sovereign citizen phenomenon has been influenced by American politics but once again he is vague as to how.

Sovereign citizens – or, as they are referred to in the UK and Canada, freemen-of-the-land or FOTL – share common attitudes to established law. Some believe they are bound by statutes only if they consent to them.

They engage in obfuscatory tactics in court, making bizarre arguments based on what could only be described as pseudo law. Most sovereign citizens are not violent but may be verbally aggressive and many will use pseudo-legal tactics merely as attempts to ignore certain rules, to get out of debt or to avoid such things as paying licence fees and traffic tickets.

An example of such an approach may be seen in Tamihere v CIR [2017] NZHC 2949. Tamihere brought summary judgment proceedings in the District Court seeking judgment against the CIR. The applications were struck out. Tamihere applied for judicial review. The CIR applied to strike the out the review proceedings. Palmer J swiftly and succinctly rejected Tamihere’s clearly pseudo-legal arguments and, after reviewing the authorities on striking out proceedings, he dismissed Tamihere’s proceedings.

The Freemen-of-the-Land movement, which originally appeared in Canada as an offshoot of the sovereign citizen movement, has been the subject of lengthy judicial scrutiny by Associate Chief Justice J D Rooke of Alberta in the case of Meads v Meads (2012) ABQB 571; [2013] 3 WWR 419.

Rooke ACJ undertook a lengthy and detailed analysis of the various flavours of what he described as ‘organised pseudo-legal

commercial arguments’. The pseudo-law arguments are a collection of motifs that sound like law and often involve legal terminology, but which lead to legally incorrect results. Most pseudo-law is designed to defeat or bypass state, police, court and institutional authority.

Similar cases have arisen in the UK, examples being Greg Foster, A Man and one of the People v John McPeake and Ors [2015] NIMaster 14 and Vibert v AG [2013] JRC 030.

What is interesting about sovereign citizens is that they appear in court at all. If they were, as they claim, a law unto themselves then they would not and should not appear and thereby submit to the jurisdiction of the court. Of course they could file an appearance protesting the jurisdiction of the court but that may be too subtle for people who have difficulty working out which version of Magna Carta they are citing.

Nevertheless, Professor Spoonley sees these people as a threat because they were involved, although in very much the minority, at the Parliament occupation.

So what is to be done about this threat of overthrow by such extremists? Spoonley suggests police and the SIS need to be more public about the resources being deployed and the information being obtained about local activists.

We need to be better informed, he says. He points out that police are enhancing existing systems to better record hate crimes which should be an important source of information and the Department of Prime Minister and Cabinet will be announcing some of the details of the new centre of excellence that will provide evidence of local developments.

One hopes these investigations will not be restricted to extremists on the Right but to other extremist groups that are threats to our society. It is doubtful, in my opinion, that sovereign citizens fulfil that criterion. They are a nuisance.

But as to the issue of surveillance – because that clearly is what Spoonley is suggesting – may I suggest that we are already there. In a recent article in the NZ Herald Kate MacNamara writes about the funding the government has deployed for the purpose of keeping an eye on citizens’ activities.

MacNamara has done an excellent job in chronicling the way the government has used a complacent media to advance its interests in what she describes as overreaching communications efforts.

But the traffic has not just been one way. She cites the government’s interest in New Zealanders’ compliance with new rules. Through the pandemic the public has been watched closely. Mobility data has been scrutinised, police enforcement tallied and numerous polls and research into our views commissioned. Regular social conversation analysis obtained as a result of regular social media listening reports indicates a significant level of surveillance for what would appear to be reasons other than the security threats perceived by Spoonley.

MacNamara reveals that this research was commissioned by the Department of Prime Minister and Cabinet and is done by a company based in New York. She says we know little of what sites the data is being scraped from or the mechanism used for collection and analysis. It has been suggested that the topics canvassed are all covid-19 related but OIA requests for the release of the data have not, as yet, been answered. MacNamara suggests the possibility of surveillance in the name of safety has gone too far.

What all of this tells us is that the surveillance levels sought and suggested by Spoonley are already in place and seem to be functioning at a number of levels. But rather than focussing upon extremist groups, the net cast by the government seeks a much wider catch. This overreach should be a cause for concern.

David Harvey is a retired District Court judge ■