I whakaputahia tuatahia tēnei atikara e NITV i Ahitereiria.
The Victorian Supreme Court has rejected an appeal by Uncle Robbie Thorpe against a decision to block his attempt to prosecute King Charles III for genocide.
“To be expected,” Uncle Robbie told NITV of the outcome.
The Krauatatungalung Elder first brought the case in 2023, lodging a private prosecution in the Magistrates’ Court of Victoria that accused the King of committing, and continuing to commit, genocide against Australia’s First Peoples.
A senior registrar refused to issue the proceeding, finding it would be an abuse of process. A judge later upheld that decision, with the latest ruling dismissing Uncle Robbie’s appeal.
Uncle Robbie says the case has always been about more than the courtroom result.
“What we’re doing is demonstrating the fact that Australia is unwilling, unable, reluctant to deal with these issues ... and we’re educating the people along the way,” he said.
“Most people are completely ignorant about the true history here. People don’t realise the gravity of crimes. We call it crime scene Australia.”
First Peoples law and the common law
Uncle Robbie’s case relied partly on First Peoples’ law, which he says has never been displaced because sovereignty was never ceded.
He also relied on common law and on Australia’s genocide laws under the Criminal Code.
The judge declined to proceed because she found the Magistrates’ Court had no power to hear the case.
According to the appeal judgement, she acknowledged that Uncle Robbie had made “a strong argument” that Australia’s First Peoples had never ceded sovereignty and that their laws continued in force.
However, “there was nothing [that] conferred jurisdiction on the Magistrates’ Court to deal with criminal offences under the sovereign laws of Australia’s First Peoples.”
The court can only hear cases that Parliament has given it the power to hear, and the judge found no law that did so for First Peoples’ law.
She gave two further reasons for refusing the case.
On the common law, she said earlier decisions, including two cases Uncle Robbie was involved in, had found genocide cannot be prosecuted in Australian courts without specific legislation. As a single judge, she was bound by those decisions.
On the Criminal Code, which does make genocide an offence, she noted that a prosecution needs the written consent of the Commonwealth Attorney-General. That had not been obtained, so issuing the case would have been an abuse of process.
Uncle Robbie believes the rulings are proof of a wider problem.
Some critics, such as Independent Senator Lidia Thorpe, have interpreted the need for politicial approval before proceeding with cases of genocide as obstructing articles I and V of the UN’s genocide convention.
A proposed amendment to the criminal code by Thorpe, which would have removed the attorney general’s veto, was voted down in the senate in 2025.
“It’s up to the ... attorney general to decide whether genocide cases can [go ahead],” said Uncle Robbie.
“That’s clearly in breach of the international convention.”
Next stop: the international courts
Uncle Robbie says the plan was always to move through the domestic options first.
The Elder believes the Australian system is “institutionally racist”, and that the hope going forward lies in international mechanisms.
“By exhausting the domestic potential remedies” he intends to go “to the International Criminal Court or the International Court of Justice”, he said.
“We’re appealing to any country around the world to take us to the [ICJ] ... we’re never going to see justice in these courts here.”
Genocide can be prosecuted internationally, but the processes differ. Cases at the International Court of Justice (ICJ) must be brought by one state against another.
ANU Professor of International Law Don Rothwell pointed to the most high-profile current example.
“So the current most high-profile example of that is, of course, South Africa versus Israel, in which South Africa, of course, has alleged Israel has breached the Genocide Convention as a result of its conduct in Gaza,” he said.
The International Criminal Court (ICC) is more complicated.
Professor Rothwell said the Rome Statute allows individuals to alert the court to alleged crimes, which “effectively invites the court to commence an investigation, and that investigation would be conducted by the Office of the Prosecutor, the OTP”.
But the court is stretched.
“It would be fair to say that the Office of the Prosecutor has been overwhelmed by these types of applications that have been made over the last 24 years ... And obviously, some will have greater merit than others.
“But the critical question is capacity. Does the International Criminal Court have capacity to investigate all of these particular matters?” he said.
He pointed to Senator Jacqui Lambie, who has brought the conduct of senior Australian military personnel to the court’s attention.
“It’s a well-established procedure, but the chances of success are relatively low,” Professor Rothwell said.
Even so, he said the odds should not deter people from using international mechanisms.
“Often ... using these processes gains a lot of traction, a lot of momentum, a lot of international attention to these types of matters, irrespective of whether or not they fail on some of the legal hurdles that are up in that line,” he said.
Uncle Robbie says he hopes another nation will take up the cause against Australia.
“We’re appealing to any country around the world to take us to the International Criminal Court because we’re not members,” he said.
“Slowly but surely, we’re making impact on the international court. And they’re starting to listen.”
Nā Dan Butler nō NITV.
