By Martin Cole-
MELBOURNE, Australia — An Australian court has rejected an Indigenous activist’s attempt to prosecute King Charles III over allegations of genocide against Indigenous Australians, ending another chapter in a legal campaign that has challenged both the Australian justice system and the constitutional position of the British monarch.
Three judges of Victoria’s Court of Appeal dismissed Uncle Robbie Thorpe’s appeal on Monday, leaving the 68-year-old Krautatungalung elder with only one remaining avenue in Australia: seeking permission to take his case to the High Court.
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The decision is the latest setback for Thorpe, who began his effort in 2023 to launch a private prosecution against the king in Melbourne Magistrates’ Court. His case has argued that Charles, as Australia’s head of state, together with the Australian government and its institutions, bears responsibility for systems that Thorpe says continue to cause serious and disproportionate harm to Indigenous Australians.
Thorpe has rejected the prospect of giving up. Speaking after Monday’s ruling, he said he did not expect to receive what he considered a fair hearing in Australia and indicated that, after exhausting domestic legal options, he would take his allegations to the International Criminal Court in The Hague.
“The International Criminal Court will expose Australia for what it really is,” Thorpe said, describing the country as a “lying, racist, illegal occupation committing genocide.”
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His comments reflect a much larger and deeply contested history between Indigenous Australians and the institutions established after British colonisation.
British settlement in Australia began in 1788 with the arrival of the First Fleet at what became Sydney. At the time, Aboriginal and Torres Strait Islander peoples had lived across the continent and its surrounding islands for tens of thousands of years, maintaining hundreds of distinct communities, languages and cultural traditions.
British authorities initially treated Australia under the legal concept of terra nullius, the idea that the land belonged to no sovereign people recognised by European law. That doctrine became central to the colonial legal system and was used to justify the Crown’s acquisition of territory without negotiating treaties with Indigenous nations.
The consequences of colonisation were profound. Indigenous communities experienced dispossession, violent frontier conflict, introduced diseases and the disruption of traditional economies and societies. During the 19th and early 20th centuries, government policies also resulted in the forced removal of many Indigenous children from their families.
These children became known collectively as the Stolen Generations, a term now firmly embedded in Australia’s national history. In 1997, Australia’s Human Rights and Equal Opportunity Commission published the Bringing Them Home report, documenting the experiences and consequences of the forced removal of Aboriginal and Torres Strait Islander children.
The report recommended, among other measures, a formal national apology and reparations. More than a decade later, in 2008, Prime Minister Kevin Rudd delivered a national apology to Australia’s Indigenous peoples in Parliament, acknowledging the pain caused by past government policies. Yet the historical debate did not end with the apology.
Thorpe’s legal challenge also reaches into an unusual feature of Australia’s political system. Australia is an independent nation, but it remains a constitutional monarchy. King Charles III is Australia’s head of state and is represented domestically by the governor-general and state governors. The monarch’s role is largely constitutional and ceremonial, with Australia’s elected governments exercising political power.
The arrangement is a legacy of Australia’s colonial past and the country’s gradual transition to independence. The Commonwealth of Australia was established in 1901, but constitutional and legal ties to Britain continued to evolve over the following decades.
The Statute of Westminster 1931 gave the Australian Parliament greater legislative independence from Britain, while the Australia Act 1986 removed the remaining major avenues for British legislative and judicial authority over Australia. Despite that independence, Australia retained the monarch as its head of state. That constitutional inheritance is particularly significant in Thorpe’s case.
According to Sydney University constitutional lawyer Anne Twomey, the British monarch enjoys a broad common-law immunity from criminal and civil liability in the United Kingdom. She said that immunity is wider than the protections enjoyed by a U.S. president because it can extend to personal acts outside official governmental powers.
Twomey said the same common-law immunity has likely been inherited by the Australian legal system, although she was unaware of the issue having previously been tested directly in an Australian court.
That question gives Thorpe’s case an importance beyond the specific allegations against Charles: it raises questions about how ancient principles surrounding the Crown operate within a modern, independent democracy.
Indigenous disadvantage remains a national issue
At the heart of Thorpe’s allegations is the continuing disparity between Indigenous and non-Indigenous Australians.Indigenous Australians account for roughly 4% of Australia’s population. Official statistics show persistent gaps in life expectancy, health, employment and imprisonment rates between Indigenous and non-Indigenous people.
Those inequalities have been the subject of decades of government programs, inquiries and political debate. In recent years, the discussion reached a major constitutional moment with the 2023 referendum on an Indigenous Voice to Parliament.
The proposed Voice would have established a constitutionally recognised advisory body through which Aboriginal and Torres Strait Islander people could make representations to Parliament and the executive government on matters affecting Indigenous communities.
The proposal was rejected by Australian voters, with a majority voting against the constitutional amendment. The referendum demonstrated the continuing difficulty of reaching national agreement on how Australia should address the consequences of colonisation and persistent Indigenous disadvantage.
A legal battle with international ambitions
Thorpe’s prosecution attempt is therefore unfolding against a background of constitutional history, Indigenous rights and Australia’s unresolved debate over its colonial past.
Monday’s ruling does not determine the truth or otherwise of Thorpe’s broader allegations of genocide. Instead, the Court of Appeal’s decision concerns whether his proposed private prosecution can proceed within Australia’s legal system.
Thorpe can still seek leave to appeal to the High Court of Australia, although the country’s highest court accepts only a minority of applications for permission to appeal.
If his domestic avenues are exhausted, Thorpe says he will turn his attention overseas and approach the International Criminal Court in the Netherlands.
Whether such an international case could proceed would depend on the court’s jurisdiction and legal requirements, meaning that a decision by the Australian courts does not automatically establish a route to an international prosecution.
The Court of Appeal ruling leaves Thorpe facing another defeat in a campaign that has placed an extraordinary question before Australia’s legal system: whether the country’s constitutional relationship with its monarch can coexist with an allegation that the Crown bears responsibility for continuing injustices experienced by Indigenous Australians.
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