Pearls and Irritations

Krauatungalung elder Uncle Robbie Thorpe stood at the bar in the Victorian Supreme Court self-represented last Friday to challenge the Magistrates’ Court of Victoria and the state attorney general, regarding the lower court’s registrar having refused to accept a charge sheet he’d tried to submit.

Thorpe was and continues to be attempting to launch a so-called “private” prosecution against Charles Philip Arthur George Windsor, also known as King Charles III, for the crime of genocide against Aboriginal peoples, contrary to sections 268.1 to 268.7 of the Criminal Code Act 1995 (Cth).

The charge sheet, which Thorpe attempted to file on 20 October last year, further laid the charge of genocide against King Charles III under First Peoples Sovereign Law and the common law of the state of Victoria. However, the senior registrar flat-out refused to accept the charge sheet in December.

Uncle Robbie is no stranger to the court system, as he’s been running genocide cases against the British Crown, the Australian state and senior political figures for three decades now. And he advises that developments along the way mean that these days his claims are gaining more traction.

So, after Thorpe put his case to the court, speaking for two hours unscripted, and the counsel for the defendants spent a good fifteen minutes shuffling through his notes, Justice Melinda Richards said on adjourning the matter, “You’ve given me a lot to think about. I shall reserve my judgement.”

Two laws, one continent

“We got a lot of our points across, and that will help in some way for a future case. This is a step in the right direction,” Uncle Robbie Thorpe told Pearls and Irritations following the hearing. “Two laws came up against each other: their existence is now undeniable in the courts.”

And the Krauatungalung elder added that “it’s been a bit of a breakthrough, the fact that we’re in there, because we’re putting information on the record. So, we won’t have to go through all that sort of stuff in the coming cases.”

Prior to running the 19 July Victorian Supreme Court judicial review regarding the Magistrates’ Court knocking back his private prosecution, Thorpe had attempted to appeal the refusal outright to the higher court, however the prothonotary rejected this, but then agreed to hold the judicial review.

Justice Richards had previously denied a request that the federal attorney general Mark Dreyfus be included as a defendant, yet she explained on the day that as the case proceeds to the higher courts, it’s likely that the Commonwealth chief lawmaker will be called upon to make an appearance.

“Things have been changing and the time has come for this,” Thorpe said over the phone straight after the hearing. “We haven’t had the big legal outfit to carry all these cases. But over the 30 years, there’s been more than enough information put to start looking at the international court.”

Jurisdiction established via genocide

As a press statement put it, in progressing this matter through the courts, Thorpe is highlighting that the current legal framework perpetuates the ongoing destruction of Aboriginal communities, via its denial of First Nations sovereignty and preventing First Peoples from prosecuting genocide crimes.

And as for Uncle Robbie’s comment regarding that the times are a-changing, at the recent Yoorrook Justice Commission, a state truth telling process that’s still ongoing, the King’s Counsel of Victoria in April 2023, acknowledged that First Nations people never ceded their lands.

And further, the Victorian minister for treaty, the minister for police, the corrections minister and even Victorian state premier Jacinta Allan have all since acknowledged that sovereignty was never ceded. Yet, the premier wasn’t able to answer further questions that followed that admission.

Be obtained by invasion and genocide” and, “in the absence of treaty, whether Aboriginal law applied to all residents of “Victoria”, and all of the land is Aboriginal land.

In the 10 July 2024 Notice of a Constitutional Matter filed in the Victorian Supreme Court for judicial review, Thorpe asserts that as First Peoples’ sovereignty was never ceded, the basis for the jurisdictional claim of Victoria and the Commonwealth of Australia is “a genocidal military invasion”.

And accordingly, Victoria and Australia and their officers have “conducted a premeditated calculated undeclared war of invasion” against First Peoples, their lands and their laws and this war has involved atrocity offences now illegal under international law and Australian domestic law.

Then the claim posits that as Aboriginal people are blocked from running these particular cases, this ensures that the genocide continues. And therefore, the legislators and judicial officers facilitating these outcomes are committing acts of Aboriginal genocide and have no immunity from prosecution.

The 1997 Thorpe versus the Commonwealth of Australia High Court case found that although the nation had ratified the 1948 Convention on the Prevention and Punishment of Genocide, it hadn’t been enacted in domestic law, and therefore, Thorpe was unable to charge the state with the crime.

While in 2002, when Australia became a party to the Rome Statute that established the International Criminal Court, it required this nation to enact the atrocity crimes it creates into federal domestic law, so then genocide, crimes against humanity and war crimes were inserted into the Criminal Code.

Yet, unlike the US, NZ or Canada, Australia inserted a law known as the attorney general’s fiat under sections 268.121 and 268.122 of the Criminal Code, which means if there is an attempt to launch a genocide case, the AG can then refuse it outright and if they do, the decision can’t be reversed.

Thorpe argues that as Aboriginal peoples have to go to, at least at present, a white man and ask him to agree to a allow a genocide case to be prosecuted against the same state he works for is obviously a law designed to halt such proceedings.

And all these lawmakers and judicial officers making such rulings are knowingly facilitating an ongoing genocide.

Observations on proceedings

Wurundjeri Woiwurrung senior elder Uncle Ringo Terrick acted as one of Thorpe’s legal advisors during proceedings. Terrick told P&I that “the comment of the day” was when Victoria Crown Counsel Liam Brown SC said that Aboriginal people in Victoria were suffering “a species of genocide”.

This showed a level of callousness that was still impacting after proceedings. And it also showed an attempt to absolve the state of any responsibility for the ongoing genocide against First Peoples, as persons are not committing the act but rather “a species of genocide” is responsible for it.

Uncle Ringo also remarked that Brown couldn’t seem to bring himself to reflect on the concept of sovereignty. Genocide could be flippantly remarked upon, but sovereignty was given a wide berth.

Uncle Jim Everrett, also known as Puralia Meenamatta, is a Lutruwita elder, who was up from Tasmania to see the case as he’s launching his own down south. And he noted that Justice Richards couldn’t bring herself to name King Charles III but would only refer to him as the head of state.

“They have no jurisdiction,” Uncle Jim made certain. “We’ve never had any agreements to be citizens of this country or this nation state. This is a colonial nation state. And they should tell the truth.”

No justice: just stolen wealth

Back when Thorpe was running the 1997 genocide case against the state, there was no higher international court where the matter could be taken. But it’s quite possible for this case to end up in front of the International Criminal Court, where there is no domestic block, like the attorney’s fiat.

The multiple offences relating to the various atrocity crimes have all been enacted domestically, so they can be prosecuted here against a local or an institution, and, as they hold universal jurisdiction, they can be used to prosecute any foreign national for such a crime anywhere across the globe.

But if it is shown that the state is unable or unwilling to progress a case like Uncle Robbie’s pursuing, then the plaintiff can prove to the ICC that they can’t solve their matter domestically, and, at that point, the international court can progress the prosecution at the international level.

And that’s what Thorpe is doing now, shopping around the case until its undeniable that it can’t be prosecuted here, and then he’ll take it to the ICC.

Uncle Robbie explained that now that the International Criminal Court has been established the game has changed. And he considers, with the example he’s setting, a number of other First Nations from across the continent will likely join a broader case, to be prosecuted at the international level.

“It’s always been the case. We’re not going to see justice in this country. It’s the system that is the criminal here,” Thorpe made certain. “You need to drag leering, lying thieves into a court of law and that’s not going to happen here.”

“So, we’re angling toward the international court the whole time.”