Having a legal action one has lodged with a court being refused is not usually the ideal outcome. Yet, the recent attempt by Uncle Robbie Thorpe to launch a private prosecution against so-called King Charles III for the crime of genocide being denied by the Victorian Supreme Court has cleared the way for the Krauatungalung elder to take the matter to a higher court beyond local borders.
After the Victorian Magistrates Court refused to issue proceedings, following Thorpe having lodged a chargesheet against the King on 20 October 2023, he stood before Justice Melinda Richards on 19 July last year, to argue that the court should accept the case and issue a summons.
The chargesheet raised the alleged offence of genocide under three different types of law: First People’s sovereign law, Victorian common law and under federal law, in terms of the genocide offences contained in division 268 of the Criminal Code Act 1995 (Cth).
In her 5 February 2025 findings, however, Richards found that the court has no jurisdiction to prosecute genocide under any of these laws.
And although Thorpe had sought to prosecute Charles Phillip Arthur George Windsor in relation to the ongoing genocide against the First Peoples of this continent, he didn’t expect the Australian courts to run with the case, as it would mean recognising the long-denied commission of genocide on these lands.
Yet, the court’s recognition of its inability to prosecute genocide in respect of all three sets of laws operating in Victoria, is exactly what is needed to take the case to a higher authority that can: the International Criminal Court.
Domestic remedies exhausted
“This has tested the will of the state. We knew they were not going to rule in our favour, because it’s basically committing suicide for them if they do,” Thorpe told Pearls and Irritations. “This is clearing the decks of all the blocks they have, like finding that they’ve got no jurisdiction – genocide has universal jurisdiction if they understand the convention.”
“Every time we mention genocide in the courts in this country it goes some way to creating a pathway to where we really want to go at the end of the day and that’s to the International Criminal Court,” the Krauatungalung elder continued.
“We know we are never going to get justice in this country.”
Thorpe has been running genocide cases against various accused since the mid-1990s. Three decades ago, he was attempting to invoke the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which Australia ratified in July 1949. And this was all prior to the establishment of the ICC on 1 July 2002, which came into being when the Rome Statute came into force.
The ICC only prosecutes the four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The highest criminal court on the planet only accepts a case such as Thorpe will raise, when the state it is in response to “is unwilling or unable genuinely to carry out the investigation or prosecution”, which is in accordance with article 17 of the Rome Statute.
Another significant outcome of the ruling was the Victorian Supreme Court recognised the “widely acknowledged truth that the sovereignty of the First Peoples of Victoria was never ceded”, which is the first time Aboriginal sovereignty has been recognised in the highest court of that state.
“We are exposing the unwillingness, the reluctance and the inability to deal on the international legal level,” said Uncle Robbie. “That’s exhausting all domestic remedy.”
Blocking genocide prosecutions
A senior registrar of the Magistrates Court of Victoria refused to issue proceedings in respect of the chargesheet Thorpe filed against Charles Windsor on 29 December 2023, on the basis that the charge was “continuing acts of genocide against First Peoples, contrary to First Peoples’ sovereign laws, the common law of Victoria and division 268 of the Criminal Code Act 1995 (Cth)”.
As Thorpe explained, Windsor is the head of the state that continues “the forced removal of children, the killing of our people in custody, deliberately inflicts conditions of life with intent to destroy and is destroying the culture”. And the accused and his family, the Windsors, preside over the nation that invaded First Peoples Country, so “they’re fundamental to the whole process of genocide here”.
The Windsors have benefitted from the genocide on this continent, according to Uncle Robbie, and “nothing has changed”.
In turning to the matter before her, Justice Richards found that in respect of First Peoples sovereign law, the Magistrates Act 1989 (VIC) does not confer jurisdiction to determine offences under it, but rather it only allows for the court to deal with Victorian and Commonwealth law.
As for Victorian common law, Richards referred to the 1999 Federal Court case Nulyarimma versus Thompson, which saw Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Thorpe, appeal against the decision of Phillip R Thompson, an ACT Magistrates registrar, for not issuing warrants for the arrest of federal politicians John Howard, Pauline Hanson, Tim Fisher and Brian Harradine.
The charge against the then PM, the One Nation leader and the two other politicians was genocide, under the 1948 Genocide Convention, due to the 10-point plan changes to the Native Title Act 1993 (Cth). And the court found that although Australia had ratified the convention, it had never been enacted into law, nor had the offence of genocide been incorporated into common law.
Genocide is the worst crime of all and it’s a complex one as well: there are five ways in which it can be committed, and it is always perpetrated “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
As Australia ratified the Rome Statute, recognising the universal jurisdiction of the ICC, it was too required to enact all forms of genocide, as well as war crimes and crimes against humanity, in federal law, and these crimes are now contained in division 268 of the Criminal Code.
The division 268 genocide offences are section 268.3 genocide by killing, section 268.4 genocide by causing seriously bodily or mental harm, section 268.5 genocide by deliberately inflicting conditions of life calculated to bring about physical destruction, section 268.6 genocide by imposing measures intended to prevent births and section 268.7 genocide by forcibly transferring children.
But just as the nation ratified the Genocide Convention, yet failed to make it of consequence domestically, the Howard Government ratified the Rome Statute but also enacted the attorney general’s fiat. Section 268.121 of the Code requires the Australian attorney-general to sign off on a genocide prosecution, while section 268.122 makes any such decision made by the AG permanent.
Richards explained that the findings relating to the 2019 High Court case Taylor versus the Attorney General held in respect of Thorpe’s case. The 2019 case was also a private prosecution against then Myanmar state counsellor Aung San Suu Kyi for the crime against humanity of deportation or forcible transfer of a population in regard to the Rohingya people, which is also covered by the AG’s fiat.
The High Court found that the nation’s chief lawmaker not only has to sign off on a prosecution against a division 268 Criminal Code offence, but such a case must be brought in the attorney-general’s name, which would be included when filing the chargesheet with a court registrar.
So, this means it’s not a matter of the AG merely giving consent to a genocide prosecution, rather the office bearer must bring the case.
A higher authority
Uncle Robbie says every time that Australian genocide gets mentioned in the courts it is significant, as it has rarely been raised in the courts since they were established. Indeed, when he first took these crimes to the courts in the 1990s, it was almost forbidden for the word genocide to be uttered, and he points out that the word is now part of the vernacular.
A number of developments over recent years have brought more attention to the genocide perpetrated here, which has included the Israeli state-perpetrated genocide against the Palestinians of Gaza.
The genocide prosecution against the king and another Thorpe brought against Australian Israeli Mark Regev, a former advisor to Israeli PM Benjamin Netanyahu, received widespread attention both locally and overseas last year.
In response to a question about whether it was time to go to the ICC, Thorpe said, “Yes, it is time to go there.” He explained that people are now taking a closer look at the Richards ruling and added that every time an Australian court has to judge on local genocide, “they fall further into the abyss”.
“You want genocide to stop at the end of the day, not when the colonisers think they are ready for it. We want it done today,” Thorpe said. “We want restoration and restitution. We are not subject to your law. We have already got one.
“So, we have to make these points, and we will continue our struggle and argument, as long as we can until we get justice,” he said. “Everyone deserves to be free from genocide.”
Paul Gregoire is a Sydney-based journalist and writer. He’s the winner of the 2021 NSW Council for Civil Liberties Award for Excellence in Civil Liberties Journalism. He usually writes for the Sydney Criminal Lawyers site, used to write for VICE and was the news editor at Sydney’s City Hub.
You can follow Paul on X @PaulrGregoire