The Victorian Court of Appeal has reserved its decision after hearing an application by Aboriginal rights campaigner Uncle Robbie Thorpe, who is seeking to overturn a ruling that blocked his attempt to bring genocide-related charges against King Charles III and other Crown representatives.
Thorpe, a Krauatungalung Elder and long-time advocate for Aboriginal sovereignty, appeared before a panel of judges in the Supreme Court of Victoria on Wednesday, arguing that Australian courts have failed to adequately address what he describes as the ongoing genocide of First Peoples.
The proceedings represent the latest stage in a decades-long legal campaign by Thorpe to have Australian courts recognise genocide committed against Aboriginal peoples under colonial and Crown authority.
Before the hearing, supporters gathered outside the court for a smoking ceremony. Speaking to those assembled, Thorpe criticised Australia's legal system.
"We're going through the motions here at these bullshit courts," he said.
"It's not our law. We had our law here. We lived in harmony with the 300 other language groups."
Inside court, Thorpe sought the recusal of Justice Karin Emerton, President of the Court of Appeal, arguing that courts in Australia are institutionally incapable of impartiality in cases concerning Aboriginal people because of their connection to the Crown.
"I accuse your King of the ongoing genocide of my people," Thorpe told the court.
"I see that the courts and the lawyers in this country are beneficiaries and complicit in this crime."
Along with fellow Justices Rowena Orr and Robert Osborn, Justice Emerton briefly adjourned to consider the application before rejecting the request and proceeding with the appeal.
Thorpe also made a series of procedural applications, including requests to join additional parties to the proceedings, among them the Commonwealth Attorney-General, the Secretary-General of the United Nations and the Prime Minister of the United Kingdom.
He further sought to tender additional material, including historical records, reports from the Yoorrook Justice Commission and Closing the Gap data, arguing they were relevant to evidence of ongoing harm experienced by Aboriginal communities.
Another application sought permission to bring traditional Aboriginal cultural items, including spears, shields and clubs, into the courtroom.
Thorpe told the court the items held "cultural, historical and combat significance" comparable to the robes and wigs worn by judges and lawyers.
"I am wearing a possum skin cloak, while your attorneys [wear] robes. All that is missing is the fire and sitting on the earth, on the same level," he said.
The application was refused on safety grounds, with the court finding the proposal posed an "unacceptable safety risk".
The appeal centres on whether a magistrate was correct to refuse to issue proceedings arising from a private prosecution Thorpe sought to commence against King Charles III in 2023.
In February last year, Supreme Court Justice Melinda Richards dismissed Thorpe's application for judicial review of the Magistrates' Court decision.
Justice Richards found that genocide cannot be prosecuted under Victorian common law and that First Peoples' sovereign law could not be applied by the Magistrates' Court. While genocide is recognised under Division 268 of the Commonwealth Criminal Code, the legislation requires the consent of the federal Attorney-General before a prosecution can proceed.
Thorpe argues that requirement unlawfully prevents Aboriginal people from accessing justice and is inconsistent with both international law and the Racial Discrimination Act.
"Any law that allows genocide is invalid," he told the Court of Appeal.
One of his principal grounds of appeal contends that section 10 of the Racial Discrimination Act should be interpreted so that Attorney-General approval is not required for Aboriginal people seeking accountability for genocide-related offences.
Thorpe also challenged the legitimacy of Australian sovereignty and legal authority, arguing that British settlement occurred without the consent of First Peoples.
"Captain Cook never got consent," he said. "If you never got consent this is an illegal occupation, and your courts and your laws are invalid."
At one point during submissions, a member of the public present in the gallery angrily interrupted proceedings, asking the bench: "Why aren't you stopping [the genocide]?"
"Because we have very limited powers," Justice Osborn replied.
"People are dying! You can see that," the person responded.
Representing the Victorian Attorney General, Counsel for the Respondent Liam Brown SC argued that most of the appeal grounds raised procedural rather than legal errors.
"They raise important matters, and Uncle Robbie speaks eloquently about them, but none of them go to the question of whether the judge erred" in refusing to issue the charges, counsel submitted.
The Crown also argued that international law cannot be directly applied by Australian courts unless incorporated into domestic law through legislation or recognised by the common law.
The case has its origins in a private prosecution Thorpe attempted to initiate against King Charles III, then identified in court documents as Charles Philip Arthur George Windsor. Thorpe alleged genocide under First Peoples' sovereign law, Victorian common law and federal criminal law.
Justice Richards found that the multiple legal bases relied upon in the charge sheet prevented proceedings from being issued and held that any prosecution under the federal genocide provisions would require Attorney-General consent.
Thorpe has previously described the litigation as part of a broader effort to demonstrate that Australian institutions are unwilling or unable to address allegations of genocide domestically, potentially opening a pathway for international legal action.
The Court of Appeal reserved its decision on both the application for leave to appeal and the substantive appeal.
As the judges left the bench, supporters in the public gallery began chanting: "Always was, always will be Aboriginal land."
