Thorpe v Magistrates' Court of Victoria
[2025] VSC 22
•5 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01011
| UNCLE ROBBIE THORPE | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| and | |
| ATTORNEY-GENERAL OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2024 |
DATE OF RULING: | 5 February 2025 |
CASE MAY BE CITED AS: | Thorpe v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 22 |
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ADMINISTRATIVE LAW — Judicial review — Plaintiff sought to file charge-sheet and summons in the Magistrates’ Court of Victoria to commence private prosecution against King Charles III for crimes of genocide under First Peoples’ sovereign laws, the common law, and div 268 of the Criminal Code Act 1995 (Cth) — Magistrates’ Court refused to issue proceedings on basis that proper source of law had not been particularised — Plaintiff sought review of refusal — Whether charge-sheet was capable of engaging the criminal jurisdiction of the Magistrates’ Court — Held charge-sheet did not disclose an offence known to law and Magistrates’ Court was correct to refuse to issue the proposed proceeding — Criminal Procedure Act 2009 (Vic), ss 6, 12 — Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 13(c) — Criminal Code Act 1995 (Cth), div 268 — Nulyarimma v Thompson (1999) 96 FCR 153 — Thorpe v Kennett [1999] VSC 442.
COURTS AND JUDGES — Application to disqualify judge for reasonable apprehension of bias — Whether pledge of allegiance to the Crown and taking affirmation of office gives rise to reasonable apprehension of bias — Held no reasonable apprehension of bias.
PRACTICE AND PROCEDURE — Procedural fairness — Whether defective charge-sheet could be rectified by amendment under s 8 of the Criminal Procedure Act 2009 (Vic) — Whether senior registrar should have referred defective charge-sheet and summons to magistrate for amendment after hearing from plaintiff prior to dismissal of proceedings — Held charge-sheet was not capable of engaging criminal jurisdiction of Magistrates’ Court of Victoria with any source of law identified in it — Proceeding dismissed — Criminal Procedure Act 2009 (Vic), s 8.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr L Brown SC, Crown Counsel for Victoria, with Mr S Crock | Victorian Government Solicitor |
HER HONOUR:
On 20 October 2023, Uncle Robbie Thorpe sought to commence a private prosecution against King Charles III for crimes of genocide. He did so by filing a charge-sheet and summons in the Magistrates’ Court of Victoria, naming himself as the informant and Charles Phillip Arthur George Windsor as the accused. The offences alleged in the charge-sheet were continuing acts of genocide against First Peoples, contrary to First Peoples’ sovereign laws, the common law of Victoria, and div 268 of the Criminal Code Act 1995 (Cth).
On 29 December 2023, a senior registrar of the Magistrates’ Court refused to issue the proceeding, on the basis that the proper source of law had not been particularised and the proposed accused may be misled or prejudiced by this omission, and in those circumstances the issue of the proceeding would be an abuse of process. The proceeding was therefore returned unissued.
In this proceeding, Uncle Robbie seeks judicial review of the Magistrates’ Court’s decision. He seeks an order requiring the Magistrates’ Court to accept the charge-sheet and summons for filing and issue the summons.
On 19 March 2024, the Magistrates’ Court filed a submitting appearance and advised that it would not be participating in the proceeding.[1]
[1]In accordance with the principles enunciated in R v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13.
At a directions hearing on 22 April 2024, I ordered that the Attorney-General of Victoria be joined as second defendant to the proceeding, on the basis that as the first law officer of the State of Victoria, her presence was necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon.[2] The Attorney-General subsequently filed written submissions and briefed Crown Counsel to appear at the trial of the proceeding on 19 July 2024.
[2]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b)(i).
At the trial, Uncle Robbie applied for me to disqualify myself from further conduct of the proceeding. I refused that application, and provide my reasons for that decision below.
In the course of his submissions at trial, Uncle Robbie challenged the legal foundation of the State of Victoria, in light of the widely acknowledged truth that the sovereignty of the First Peoples of Victoria was never ceded. He questioned the legitimacy of the Court’s jurisdiction, given the High Court’s rejection of the fiction of terra nullius[3] and the previous use of that fiction to justify the Crown’s acquisition of Victoria. These large and important questions are currently being considered by the Yoorrook Justice Commission, and have prompted the Victorian Government to commence treaty negotiations with Victoria’s First Peoples.
[3]Mabo v Queensland [No 2] (1992) 175 CLR 1 (Mabo).
While acknowledging the significance of the questions raised by Uncle Robbie, the only jurisdiction that I can exercise is the jurisdiction of this Court. I can only do that by applying the law of the State of Victoria to the questions for determination in this proceeding.[4]
[4]Mabo, 29–30 (Brennan J).
For the reasons that follow, I have concluded that the Magistrates’ Court was correct to refuse to issue the proposed proceeding. The charges alleged in the charge-sheet did not disclose an offence known to the law of Victoria.
The proceeding must therefore be dismissed.
Disqualification application
By summons filed 15 July 2024, Uncle Robbie sought orders including an order that I be disqualified from further conduct of the proceeding. The basis for this application was set out in his accompanying affidavit, as follows:
(a) In my decision of Re Thorpe (No 2),[5] I had quoted his submissions in full while making no comment about ongoing Aboriginal genocide and injustice to Aboriginal people at the hands of non-Aboriginal people. This amounted to ‘white denial’ that Aboriginal people would perceive as bias;
[5][2024] VSC 408.
(b) I am not Aboriginal;
(c) There are no documents evidencing that I have accepted that Aboriginal sovereignty has never been ceded and that Aboriginal law is the only true law of this land;
(d) I have publicly sworn allegiance to the monarchy, and have not publicly repudiated the Windsor family as genocidal invaders;
(e) Consequently, I am reasonably likely to be perceived by Aboriginal peoples and others as biased against Aboriginal peoples.
The Attorney-General opposed the application, saying that the circumstances relied on by Uncle Robbie did not give rise to a reasonable apprehension of bias.
A judge is disqualified from hearing a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions for decision in the case.[6] Applying this test involves first identifying what it is said might lead the judge to decide the case other than on its legal and factual merits, and then articulating a logical connection between that matter and the fear that the judge might not decide the case on its merits. The final step in the analysis is assessing the reasonableness of the asserted apprehension of bias.[7]
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow, and Hayne JJ) (Ebner); Charisteas v Charisteas (2021) 273 CLR 289, [11] (Charisteas).
[7]Ebner, [8] (Gleeson CJ, McHugh, Gummow, and Hayne JJ); Charisteas, [11].
At the same time, judges are obliged to hear cases assigned to them in which the Court’s jurisdiction has been regularly invoked. Judges ‘do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause’.[8] In this case, which has been assigned to me to hear and determine, Uncle Robbie has regularly invoked the judicial review jurisdiction of the Supreme Court of Victoria.
[8]Ebner, [19] (Gleeson CJ, McHugh, Gummow, and Hayne JJ).
On my appointment to the Court, I pledged allegiance to Her Majesty Queen Elizabeth II and her heirs and successors according to law. I also took the affirmation of office as a judge, to discharge the duties of my office according to law, without fear or favour, affection or ill-will.
The Court’s jurisdiction is conferred by the Constitution Act 1975 (Vic)[9] and is recognised in ch III of the Commonwealth Constitution. The law to be applied by a judge of the Court is the law of the State of Victoria, in accordance with Victoria’s Constitution Act and the Commonwealth Constitution.
[9]Constitution Act 1975 (Vic), s 85.
I do not accept Uncle Robbie’s assertion that pledging allegiance to the Crown and taking the affirmation of office might give rise to a reasonable apprehension that I might not decide this judicial review proceeding on its merits. These promises are essential to the office of a judge of the Supreme Court of Victoria, and have been made by every judge of this Court. One of us must hear and determine the case that Uncle Robbie has brought, and it has been allocated to me.
The only matter relied on by Uncle Robbie that does not apply equally to every other judge of the Court is my decision in Re Thorpe (No 2).[10] That decision concerned a matter of Supreme Court procedure, being Uncle Robbie’s request for a review of a decision of the Deputy Prothonotary not to accept for filing a document he wished to file in the Criminal Division of the Court. At [7] of the decision, I quoted in full the submissions made by Uncle Robbie in support of his request for review, before explaining why I agreed with the Deputy Prothonotary’s conclusion that the proposed proceeding was misguided and substantially irregular. Given that context, I do not accept that the lack of any comment about his submissions either amounted to ‘white denial’ or is capable of giving rise to a reasonable apprehension of bias.
[10][2024] VSC 408.
The charge-sheet and summons
Section 6(1) of the Criminal Procedure Act 2009 (Vic) provides that a criminal proceeding is commenced by ‘filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court’. It is the act of filing a charge-sheet that enlivens the jurisdiction of the Magistrates’ Court to hear and determine the charges on the charge-sheet.[11]
[11]Fox v DPP (Vic) (2022) 66 VR 223, [73(a)] (Fox).
A charge-sheet must be in writing, be signed by the informant personally, and comply with sch 1 of the Criminal Procedure Act. One of the formal requirements in sch 1 is that the charge-sheet must ‘state the offence that the accused is alleged to have committed’.
The document that Uncle Robbie sought to file with the Magistrates’ Court used Form 3 (charge-sheet and summons), as prescribed by r 13(c) of the Magistrates’ Court Criminal Procedure Rules 2019 (Vic).
The charge-sheet identified the accused as ‘Windsor, Charles Phillip Arthur George’. The offences to be charged were described in attached document A as follows:
DESCRIPTION OF OFFENCE
The accused is charged with
continuing acts of genocide
including
attempted genocide
incitement to genocide
conspiring to commit genocide and
complicity in genocide
against First Peoples
from
28 September 2022 to Friday 20 October 2023
and
ongoing thereafter until such date as he is apprehended and taken into custody
…
The accused, both singly and with his associates, has committed, is continuing to commit and will, unless forcibly restrained (by immediate imprisonment (or their own solemn undertaking, and breach of which will result in immediate imprisonment) continue to commit genocide by
killing First Peoples
causing serious bodily or mental harm to First Peoples
deliberately inflicting conditions of life calculated to bring about the physical destruction of First Peoples in whole or in part
imposing measures intended to prevent births of First Peoples
forcibly transferring children of First Peoples
These charges are laid under:
(i) the Laws of Our Lands for over 65,000 years; and
(ii) the common law of the State of Victoria; and
(iii) Division 268 of the Criminal Code 1995 of the Commonwealth of Australia.
The accused is further charged with committing two additional crimes:
Cultural genocide
And
Ecocide
And these two charges are laid under both the Laws of Our Lands for over 65,000 years and the evolving common law of the State of Victoria.
Attached document B gave details of the laws and factual details of the alleged offences. It commenced with a reference to the reports of the Yoorrook Justice Commission, which Uncle Robbie anticipates will set out ‘the facts and evidence of historic and ongoing genocide against First Peoples since the Undeclared War Of Invasion by the accused’s family and associates’. It then referred to the Genocide Convention, noted that it contemplates that heads of state may be charged with genocide, and argued that Australia’s head of state could and should be prosecuted for crimes of genocide against First Peoples.
Filing a charge-sheet and summons permits an application under s 12(1) of the Criminal Procedure Act to be made to a registrar of the Magistrates’ Court ‘for the issue of a summons to answer to the charge directed to the accused’.[12] A registrar who receives an application under s 12(1) must then, under s 12(4), issue a summons ‘if satisfied that the charge discloses an offence known to law’. If the registrar is not so satisfied, they may refuse to issue the summons.
[12]Criminal Procedure Act 2009 (Vic), s 12(1)(a); Fiore v Magistrates’ Court of Victoria [2020] VSC 92, [113].
The registrar’s decision
Uncle Robbie sent the charge-sheet and summons to the Magistrates’ Court under cover of an email dated 20 October 2023, addressed to the Chief Magistrate and the Deputy Magistrates. Among other things, he requested that the charge-sheet be forwarded to a registrar for processing.
After a delay, about which Uncle Robbie made several complaints, the charge-sheet and summons were referred to the principal registrar. In a letter dated 12 December 2023, the Magistrates’ Court’s Senior Manager Court Operations – Metropolitan explained that all charges filed by private individuals to initiate a private prosecution are referred to the principal registrar for advice, and apologised for the delay in doing so.
On 29 December 2023, Matt Dalton, Senior Registrar, Melbourne Magistrates’ Court sent an email to Uncle Robbie as follows:
The court has received your documents in the form of a charge-sheet and summons. You have requested that the court issue the proceeding.
The proper source of law has not been particularised and the proposed accused may be misled or otherwise prejudiced by this omission.
In the circumstances the issue of the proceeding would be an abuse of process and therefore the proceeding is returned unissued.
I accept the Attorney-General’s characterisation of this decision as a decision made by the senior registrar under s 12(4) of the Criminal Procedure Act not to issue the summons against the accused on the basis that the charge-sheet did not disclose an offence known to law. It could also be characterised as a refusal by a registrar to accept a document submitted for filing under r 9(1) of the Magistrates’ Court Authentication and Electronic Transmission Rules 2021 (Vic), on the same basis.
Grounds of review
The originating motion for judicial review, filed on 7 March 2024, identified the following grounds of review:
1.The proper source of the law is the original law of the land prohibiting First Peoples from actions amounting to genocide and ecocide.
2.Another proper source of law is the common law of the UK monarchy’s colony known as State of Victoria which as at October 2023 prohibits genocide as well as murder— and arguably ecocide (confirmed by Charles Windsor’s speech on Friday 31 November 2023 opening “COP 28”, the 28th Conference of the Parties signatory to the United Nations Framework Convention on Climate Change UNFCCC, the Kyoto Protocol and the Paris Agreement).
3.Another proper source of law is the statute law of the UK monarchy’s federated colonial entity Commonwealth of Australia which has prohibited genocide under Division 268 of its Criminal Code Act for the past two decades.
4.These three sources of the law listed in the paragraphs numbered 1, 2 and 3 above were particularised and set out in a detailed memo specifically referred to in, and attached to, the Charge Sheet delivered to the Court on 20 October 2023 as was the complex factual history of the offences.
5.The Court should properly have made an order under s 8 of the Criminal Procedure Act to amend the charge-sheet and directed a filing hearing for the informant to be heard before deciding whether or not to dismiss the proceedings.
6.The defendants did not act fairly, were in breach of natural justice, made errors of law, misunderstood the law, applied the law incorrectly and failed to consider and to take into account relevant factors as set out in the plaintiff’s supporting affidavit made 7 March 2024.
7.The questions of law are set out in paragraphs 1-3 of the plaintiff’s affidavit made in support of the claim.
Uncle Robbie’s affidavit in support of his originating motion began by setting out three questions of law:
1.Whether the original law of this land at all times prohibits conduct by First Peoples and others on country constituting
(i) the offence of genocide as articulated and defined in the 1948 UN Genocide Convention; and
(ii) the offence of ecocide as articulated by the Independent Expert Panel For The Legal Definition Of Ecocide on 21 June 2021 to expand the jurisdiction of the International Criminal Court.
2.Whether the common law of the State of Victoria [as] at 20 October 2023 prohibits not only murder but also genocide as articulated and defined in the 1948 UN Genocide Convention.
3.Whether the statutory law of the Commonwealth of Australia has prohibited genocide for the past two decades in Division 268 of the Criminal Code Act and whether the statutory prohibition on anyone but its Attorney-General prosecuting the offence is unconstitutional.
These grounds of review are squarely directed to the basis for the senior registrar’s decision — namely, whether the charge-sheet and summons disclosed an offence known to law. As discussed, the law that is administered by this Court — and by the Magistrates’ Court — is the law of the State of Victoria, under Victoria’s Constitution Act and the Commonwealth Constitution.
I consider the grounds of review in the following order:
(a) crimes of genocide under the laws of Australia’s First Peoples;
(b) crimes of genocide under the common law;
(c) crimes of genocide under div 268 of the Criminal Code; and
(d) procedural fairness.
First Peoples’ law
Submissions
As mentioned, Uncle Robbie made a strong argument that Australia’s First Peoples had never ceded sovereignty and that their laws continue in force. He contrasted that system of law, in which each and every person of age knew the law, with a system administered by a privileged group of people. He said ‘Australia’s a fake,’ and described it as based on ‘monumental lies, terra nullius, a secret war, illegal invasion.’[13] He submitted that the concept of terra nullius was in itself genocidal, and that Australia remains a crime scene unless and until there is a treaty with the First Peoples. He maintained that, absent consent, the Crown has no proper jurisdiction over First Peoples.
[13]Transcript of Proceedings, Uncle Robbie Thorpe v Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S ECI 2024 01011, Richards J, 19 July 2024) 32:25, 37:6–7.
The Attorney-General responded that, if the offences of genocide, cultural genocide, and ecocide were part of the sovereign law of Australia’s First Peoples, they did not fall within the jurisdiction of the Magistrates’ Court. She argued that the Magistrates’ Court is an inferior court with limited jurisdiction conferred by statute.[14] The criminal jurisdiction of the Magistrates’ Court does not extend to offences that are or may have been recognised by the traditional laws and customs of Australia’s First Peoples. Any such offence is incapable of enlivening the Magistrates’ Court’s jurisdiction and so cannot form a basis for commencing a criminal proceeding in the Magistrates’ Court.
[14]Referring to Herald & Weekly Times Ltd v Magistrates’ Court of Victoria (2000) 2 VR 346, [29] (Charles JA).
Consideration
This proceeding concerns an attempt by Uncle Robbie to invoke the criminal jurisdiction of the Magistrates’ Court to prosecute charges of genocide. The Magistrates’ Court is a court of the State of Victoria established by s 4 of the Magistrates’ Court Act 1989 (Vic). I accept the submission of the Attorney-General that the Magistrates’ Court’s criminal jurisdiction is confined to the jurisdiction conferred on it by statute.
Section 25 of the Magistrates’ Court Act provides:
Extent of jurisdiction
(1)The Court has jurisdiction—
(a) to hear and determine all summary offences; and
(b) to hear and determine all indictable offences which may be heard and determined summarily; and
(c) to conduct committal proceedings into indictable offences and either—
(i)direct the accused to be tried and order that the accused be remanded in custody until trial or grant bail; or
(ii)discharge the accused; and
(d) to make orders to enforce the payment of all fines which are, by any Act, directed to be recovered in the Court or for the recovery of which no provision is made.
(2)The jurisdiction given by subsection (1) is additional to any other jurisdiction given to the Court with respect to a criminal proceeding by or under any Act other than this Act.
…
The Magistrates’ Court has like jurisdiction with respect to persons who are charged with offences against Commonwealth law.[15] Uncle Robbie did not suggest that any statute conferred jurisdiction on the Magistrates’ Court to hear and determine offences under First Peoples’ law.
[15] Judiciary Act 1903 (Cth), s 68(2).
As the Attorney-General submitted, there is nothing in s 25 of the Magistrates’ Court Act, or any other statutory provision, that expressly or by implication confers jurisdiction on the Magistrates’ Court to deal with criminal offences under the sovereign law of Australia’s First Peoples. To the extent that the charge-sheet relied on the First Peoples’ sovereign laws, it was incapable of engaging the jurisdiction of the Magistrates’ Court. The senior registrar was therefore correct to conclude that the sovereign law of First Peoples was not a proper source of law for the proposed prosecution.
It is therefore not necessary for me to consider or determine the extent to which First Peoples’ laws are recognised by the common law of Australia, or whether and in what way those laws recognise crimes of genocide, cultural genocide, or ecocide.
Common law
On 11 December 1946, the General Assembly of the United Nations resolved that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world.[16] This is reflected in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), in which the Contracting Parties confirm that genocide is a crime under international law, which they undertake to prevent and punish.[17] Genocide is defined in art II of the Genocide Convention:
[16]The Crime of Genocide, GA Res 96(I) (11 December 1946, adopted 11 December 1946).
[17]Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art 1 (Genocide Convention).
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a)Killing members of the group;
(b)Causing serious bodily or mental harm to members of the group;
(c)Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d)Imposing measures intended to prevent births within the group;
(e)Forcibly transferring children of the group to another group.
The Contracting Parties agreed that persons committing genocide should be punished.[18] They undertook to enact, in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the Genocide Convention and, in particular, to provide effective penalties for persons guilty of genocide.[19]
[18]Genocide Convention, art IV.
[19]Genocide Convention, art V.
Australia is a party to the Genocide Convention. Its ratification was approved by the Commonwealth Parliament in 1949, with the enactment of the Genocide Convention Act 1949 (Cth). However, for more than fifty years Australia did not enact legislation to give effect to the provisions of the Genocide Convention. In that vacuum, it was argued in several cases that the international crime of genocide had been incorporated into the common law of Australia.
The most significant of these cases was Nulyarimma v Thompson,[20] in which the appellants sought an order requiring the registrar of the Magistrates Court of the Australian Capital Territory to issue warrants for the arrest of four members of the Commonwealth Parliament, in relation to acts of genocide alleged to have been committed in connection with the enactment of the Native Title Amendment Act 1998 (Cth). The appellants had been unsuccessful at first instance, although they received a sympathetic hearing from Crispin J of the Supreme Court of the Australian Capital Territory.[21] They appealed to the Full Court of the Federal Court.
[20](1999) 96 FCR 153 (Nulyarimma). Uncle Robbie was one of the appellants, along with Wadjularbinna Nulyarimma, Isobel Coe, and Billy Craigie. The members of parliament who they wished to charge with genocide were Prime Minister John Howard, Deputy Prime Minister Tim Fischer, Senator Brian Harradine, and Pauline Hanson, a member of the House of Representatives.
[21]Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9.
Justice Wilcox accepted that the prohibition of genocide is a peremptory norm of customary international law, which pre-existed and is independent of the Genocide Convention. His Honour also accepted that each nation State has an obligation imposed by customary international law to extradite or prosecute any person within its territory who appears to have committed an act of genocide.[22] However, Wilcox J held that ratification of the Genocide Convention did not directly affect Australian domestic law unless and until legislation is enacted.[23] His Honour rejected the proposition that the common law enabled an international norm to be enforced by a criminal prosecution in a domestic court, in the absence of legislation.[24]
[22]Nulyarimma, [18] (Wilcox J).
[23]Nulyarimma, [20] (Wilcox J).
[24]Nulyarimma, [22], [26] (Wilcox J).
Justice Whitlam also concluded that genocide was not an offence in respect of which an information could be laid under the Magistrates Court Act 1930 (ACT), and that the registrar had no authority to issue the process requested.[25] His Honour held that the universal jurisdiction of states to punish contraventions of peremptory international norms did not, of itself, provide a source of jurisdiction for municipal courts to try international crimes.[26] He also rejected the idea that ‘the common law countenanced the selective exercise by municipal courts of a universal jurisdiction under international law’.[27]
[25] Nulyarimma, [58] (Whitlam J).
[26]Nulyarimma, [49] (Whitlam J).
[27] Nulyarimma, [57] (Whitlam J).
Justice Merkel agreed in the result, but for different reasons. His Honour was of the view that the offence of genocide is an offence under the common law of Australia.[28]
[28]Nulyarimma, [186] (Merkel J).
The view of the majority in Nulyarimma was applied in Victoria in Thorpe v Kennett.[29] Justice Warren declined to regard genocide as incorporated as a criminal offence in Victoria, holding that this would require the legislature to enact specific legislation to that effect.[30] Her Honour concluded that the criminal law in this State does not recognise a crime of genocide, either at common law or under the Crimes Act 1958 (Cth).[31]
[29][1999] VSC 442 (Thorpe v Kennett). The case concerned an attempt by Uncle Robbie to prosecute the then Premier of Victoria for ‘the universal criminal offence of genocide’. The charge and summons were accepted by the registrar of the Magistrates’ Court but dismissed by the Chief Magistrate for want of jurisdiction on the basis that the offence of genocide did not form a part of domestic law.
[30]Thorpe v Kennett, [43].
[31]Thorpe v Kennett, [44], [46].
There have been three significant developments since the decisions in Nulyarimma and Thorpe v Kennett:
(a) In July 2002, the Rome Statute of the International Criminal Court entered into force.[32] The Rome Statute is an international treaty establishing the International Criminal Court (ICC), with jurisdiction ‘limited to the most serious crimes of concern to the international community as a whole’, specifically the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.[33] Genocide is defined in the Rome Statute in the same terms as in the Genocide Convention.[34] Australia was one of the original signatories to the Rome Statute.
(b) At the same time, the Commonwealth Parliament enacted the International Criminal Court (Consequential Amendments) Act 2002 (Cth), which inserted div 268 into the Criminal Code. Division 268 creates offences of genocide, crimes against humanity, and war crimes, and makes comprehensive provision for the prosecution of those offences in Australian courts.[35] Section 268.1(2) expresses Parliament’s intention that the jurisdiction of the ICC is to be complementary to the jurisdiction of Australia with respect to offences created by div 268 that are also crimes within the jurisdiction of the ICC. Division 268 commenced operation on 26 September 2002.
(c) More recently, in September 2022, Australia intervened in the genocide proceedings brought by Ukraine against the Russian Federation in the International Court of Justice (ICJ). Its initial declaration of intervention addressed issues of construction of the Genocide Convention relevant to both jurisdiction and merits.[36] An adjusted declaration submitted in August 2024 focuses on construction questions relevant to the merits.[37]
[32]Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
[33]Rome Statute, art 5.
[34]Rome Statute, art 6.
[35]International Criminal Court (Consequential Amendments) Act 2002 (Cth), sch 1, sub-divs B (genocide), C (crimes against humanity), D–H (war crimes).
[36]‘Declaration of Intervention of the Government of Australia’, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), International Court of Justice, General List No 182, 30 September 2022.
[37]‘Declaration of Intervention of the Government of Australia (adjusted)’, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), International Court of Justice, General List No 182, 1 August 2024.
Submissions
Uncle Robbie submitted that the Court should revisit the earlier cases and hold that the Genocide Convention has been part of the common law of Victoria, at least since the Rome Statute entered into force in July 2002. Alternatively, he invited the Court to hold that the common law has included the Genocide Convention since Australia’s intervention in the ICJ proceeding between Ukraine and the Russian Federation.
The Attorney-General said that it was unnecessary to decide when or if any international crime of genocide was incorporated into the common law of Australia, because crimes of genocide now exist under Commonwealth law. Since 2002, the law of genocide has been codified in div 268 of the Criminal Code, leaving no scope for any common law offence of genocide to coexist with div 268. The Attorney-General pointed out that the statutory offences of genocide in sub-div B of div 268 are wholly coextensive with the international crimes of genocide under the Genocide Convention.
For completeness, the Attorney-General submitted that Thorpe v Kennett was correctly decided and should be followed in this case. She said that Warren J was correct to hold that the only way in which an offence of genocide could constitute part of the criminal law of the State of Victoria was by specific legislation — which is exactly what occurred with the enactment of div 268 of the Criminal Code.
Consideration
As a single judge of the Supreme Court of Victoria, I am bound to follow Nulyarimma and Thorpe v Kennett unless there is some compelling reason to depart from them.[38] I was not persuaded that there is any such reason. The analysis of the majority in Nulyarimma and of Warren J in Thorpe v Kennett is not affected by Australia’s ratification of the Rome Statute, or its intervention in the ICJ proceeding between Ukraine and the Russian Federation. Aside from noting those two events, Uncle Robbie did not explain why they warranted a reconsideration of the earlier cases.
[38]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135].
Genocide is a crime under international law, both under the Genocide Convention and as a peremptory norm of customary international law. Australia has assumed obligations under the Genocide Convention to prevent and punish crimes of genocide. However, it remains the case that the common law does not contemplate the prosecution of crimes of genocide in criminal proceedings in any Australian court. As Warren J held in Thorpe v Kennett, specific legislation is required in order for genocide to be a criminal offence in the State of Victoria.[39]
[39]See [47] above.
The enactment of div 268 of the Criminal Code achieved that outcome, creating offences of genocide in terms that give effect to the Genocide Convention. The Attorney-General submitted that div 268 is a complete codification of the criminal law of genocide in Australia that leaves no room for the existence of an offence of genocide at common law. I am not sure that is correct.
It is true that sub-div B of div 268 is a comprehensive enactment in Australia of the crimes of genocide at international law that uses the words of the Genocide Convention and the Rome Statute. It is also the case that s 268.121 excludes any private prosecution of an offence under div 268. However, s 268.120 provides that div 268 ‘is not intended to exclude or limit any other law of the Commonwealth or any law of a State or Territory’. This saving provision indicates that the Australian Parliament did not intend div 268 to cover the field or to override or displace the common law.[40]
[40]Chung v R (2007) 175 A Crim R 579, [18]–[31] (Spigelman CJ, Hislop and Harrison JJ agreeing).
However, it is unnecessary to decide that question because of the existing authority to the effect that genocide is not a common law offence in Australia. The common law was therefore not a source of law for the prosecution that Uncle Robbie sought to commence.
Division 268, Criminal Code
Division 268 of the Criminal Code creates five offences of genocide, each of which criminalises conduct committed against a person or persons who belong to a particular national, ethnical, racial, or religious group, with intent to destroy, in whole or in part, that group. The five offences are:
(a) genocide by killing (s 268.3);
(b) genocide by causing serious bodily or mental harm (s 268.4);
(c) genocide by deliberately inflicting conditions of life calculated to bring about physical destruction (s 268.5);
(d) genocide by imposing measures intended to prevent births (s 268.6); and
(e) genocide by forcibly transferring children (s 268.7).
The charge-sheet filed by Uncle Robbie alleged that the accused had committed, and was continuing to commit, each of these offences against First Peoples. In that sense, it identified offences known to law, being offences of genocide under div 268 of the Criminal Code.
However, only the Commonwealth Attorney-General can prosecute an offence against div 268. Private prosecutions of offences under div 268 are not permitted. Section 268.121 provides:
Bringing proceedings under this Division
(1)Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent.
(2)An offence against this Division may only be prosecuted in the name of the Attorney‑General.
(3)However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given.
In Taylor v Attorney-General (Cth),[41] the High Court held that s 268.121(2) excluded the capacity of any person other than the Attorney-General to commence any prosecution of an offence against div 268 of the Criminal Code.[42] Like Uncle Robbie in this case, the plaintiff in Taylor had attempted to commence a private prosecution of an offence under div 268 in the Magistrates’ Court. The High Court held that the Commonwealth Attorney-General could not consent to a private prosecution, because the offence could only be prosecuted in the name of the Attorney-General.[43] The prosecution referred to in s 268.121(2) ‘is the totality of the prosecutorial process beginning with the commencement of proceedings for an offence against Div 268’ — including the filing of a charge-sheet with a registrar of the Magistrates’ Court.[44]
[41](2019) 268 CLR 224 (Taylor).
[42]Taylor, [36] (Kiefel CJ, Bell, Gageler, and Keane JJ).
[43]Taylor, [43] (Kiefel CJ, Bell, Gageler, and Keane JJ).
[44]Taylor, [39] (Kiefel CJ, Bell, Gageler, and Keane JJ), referring to the Criminal Procedure Act, ss 6(1)(a), 162.
I accept the submission of the Attorney-General that the charge-sheet filed by Uncle Robbie did not disclose an offence known to law because the prosecution was not brought in the name of the Commonwealth Attorney-General, and could not be commenced without his written consent. Since neither of these preconditions were met, the senior registrar was correct to conclude that issuing the proceeding would have been an abuse of process.
Uncle Robbie pointed out that a Senate committee was currently considering the Attorney-General’s fiat in s 268.121. A private member’s bill named the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 (Cth) was introduced in the Senate in February 2024, and would amend the Criminal Code by repealing ss 268.121 and 268.122. The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported in November 2024, and by a majority recommended that the Senate does not pass the Bill. Senator Lidia Thorpe wrote a strong dissenting report in favour of the Bill. At the time of writing this judgment, the Bill was still before the Senate, and s 268.121 remains in div 268 of the Criminal Code.
Uncle Robbie also served notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), in which he contended that s 268.121 of the Criminal Code is invalid. He did not make any submissions in support of this contention at trial. I accept the submission of the Attorney-General that s 268.121 appears to be a regular exercise of the Commonwealth Parliament’s power to legislate with respect to external affairs,[45] to give effect to the Genocide Convention. The arguments put at trial did not identify any reason to doubt its validity.
[45]Commonwealth Constitution, s 51(xxix).
For those reasons, the charge-sheet filed by Uncle Robbie was not capable of engaging the jurisdiction of the Magistrates’ Court to hear and determine a charge under div 268 of the Criminal Code.
Procedural fairness
In his originating motion, Uncle Robbie alleged that the Magistrates’ Court should properly have made an order under s 8 of the Criminal Procedure Act to amend the charge-sheet and heard from him before deciding whether or not to dismiss the proceeding. He did not address this ground in his written or oral submissions at trial.
The Attorney-General accepted that a magistrate is obliged to consider whether a potentially defective charge-sheet can be rectified by amendment under s 8 of the Criminal Procedure Act.[46] She also accepted that the senior registrar could have referred the charge-sheet and summons to a magistrate, to allow the magistrate to consider whether the charge-sheet could be cured by amendment after hearing from Uncle Robbie. However, she submitted that the senior registrar was not obliged to refer the matter to a magistrate, because the purpose of the power in s 12(4) is to ensure that the Magistrates’ Court’s processes are not overwhelmed by defective proceedings — including charge-sheets that do not disclose any offence known to law.
[46] Referring to Fox, [73(i)].
I accept the Attorney-General’s submission on this point. Uncle Robbie was seeking to commence a criminal proceeding against the King for offences of genocide. For the reasons I have given, the charge-sheet was not capable of engaging the criminal jurisdiction of the Magistrates’ Court under any of the sources of law identified in it. Nothing that Uncle Robbie might have said to a magistrate could have changed the legal position that, currently, private individuals may not prosecute offences of genocide in Australian courts.
Disposition
The proceeding must be dismissed. I will hear from the parties on the question of costs.
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