The Australian Judiciary is born of a Genocide
Heal this Nation with a Treaty
Show Respect for Family and Community in our Law
There is currently a case running in the Victorian law courts called Uncle Robbie Thorpe Vs The Crown.
Uncle Robbie Thorpe is prosecuting King Charles 111 for crimes of genocide. The Melbourne Magistrates Court, predictably was not impressed and refused to hear the case. Subsequently Uncle Robbie Thorpe appealed the Magistrates Court decision to the Victorian Supreme Court where the matter is currently on foot.
The purpose of this discussion is to highlight the significance of this case in relation to the very fabric and structure of Australia`s legal system.
As stated at the outcome “The Australian Judiciary is formed of a Genocide, which is the reason it has no respect for family or our communities. The vested interests who rule this nation have resisted a treaty because it would have to respect customary law which is based upon the core components of survival within a tribal frame work, that is law that respects family and community.
Running such a case within the Australian Judicial Structure creates a Juxtaposition which when resolved will have wide and significant outcomes for the way our whole legal system operates.
The irony being that within our society the only venue we have, with which to progress, is via our judicial system. The very system that has been built upon the lie of Terra Nullius.
For Terra Nullius to have any credence whatsoever means that all of the people who used to be here are no longer.
Does this mean? they all sailed off to another place, did they die of natural causes or were they murdered, starved, poisoned, infected with smallpox and syphilis, had their family structures ripped apart, jailed and made to die with broken hearts, all because the judicial system did not care and helped to facilitate the atrocities?
The Australian Judicial System is an essential part of a colonial structure whose main purpose is to facilitate exploitation of the land and the people who live on that land. It proclaims under the cloak of falsehood to provide justice and fairness for all, but in reality, is a structure that only caters for the privileged few who can afford its obscene costs.
On the one hand we have a native elder calling for the right to prosecute a well-documented and proven genocide, working within the very system that was formed of the genocide and yet proclaims to administer a just and fair outcome for all who participate in its decision-making processes.
“THE SUPREME COURT OF VICTORIA SAFEGUARDS AND MAINTAINS THE RULE OF LAW TO ENSURE EQUAL JUSTICE FOR ALL”
We have a culture of customary lore which is 50,000 years old communicating with a Western, British colonial legal structure. The two systems are further apart than the Man on the moon trying to talk sense to the American President.
Uncle Robbie Thorpe trained and fought as a boxer. He knows that a contest lasts for many rounds and through strength and persistence an outcome of advantage can be achieved.
In round one the Melbourne Magistrates Court rejected his case outright, calling it Vexatious and frivolous, whatever that means. The appeal has gone to the Victorian Supreme Court where they are listening.
I had the privilege to be in that court room last Friday 19th of July, to see with my own eyes the meeting of these two worlds.
A theatre of the surreal. The court room was positioned deep in the bowels of the atrophied structure of The Victorian Supreme Court, built from 1874 to 1884. It was the largest and most expensive project in nineteenth century Australia, and marred by controversies, scandal, and budget blowouts. (Sound familiar)
To travel from the entrance on William Street to court room 3 in the rear building required a court appointed guide. As we walked over the blue stone paved laneway, I could hear the clip clop of the ghosts of bygone eras, the horse drawn carriages used to remove the condemned on their final journey.
Once entering the court which was well attended by at least 60 members of the public I found myself in a large space with a very high ceiling, the lower walls of which were lined with solid wood panels up to about ten feet high the remaining five feet and the ceiling was painted white. There were a number of rows of wooden benches, resembling church pews. The Judge dressed in a black gown with a white collar sat at the front, perched up high behind a large wooden bench facing the commoners seated in the gallery. Uncle Robbie Thorpe, dressed in a traditional possum skin coat and a beanie sat at the bar table with the barrister for the Magistrates Court Mr Brown and his offsider.
At the rear of the court guarding the entrance stood two tall indigenous men carrying what looked to be spears, not a policeman or security guard in sight.
Robie spoke to the Judge (Melinda Richards) for about two hours. He spoke about the genocide that had been inflicted upon his people when Victoria was invaded by colonialists and the reduction in the size of the native population from at least 100,000 people pre colonization to 3,500 people by 1852.
He spoke of the continued genocide upon his people and the disproportionate numbers of his people who are incarcerated into the Victorian prison system outnumbering their white brothers by a ratio of 14 to one.
He spoke of the removal of children from their mothers during the period of the stolen generation which is still occurring today.
He invited Justice Melinda Richards to come down to visit Camp Sovereignty, sit around the healing fire and experience how customary law is practiced. Sadly, she declined.
You could feel the powerful presence of spirit within the room, so powerful was its presence that you could see it entering the very presence of the presiding Judge, Melinda Richards.
As Robbie and Mr Browne continued their discussions a loud tapping sound began to emanate from the courts plumbing system, obviously a secret messaging system passed down through the judges of the past. A code between judges to warn them of a powerful presence. Justice Melinda Richards did make reference to the metallic tapping sounds emanating into the court room as being created by builders.
At the end of the discussions Melinda informed everyone that the court was adjourned and that she had been given a great deal of food for thought. She would announce her decision in due course. It will be very interesting to hear what Melinda Richards has to say.
Justice Melinda Richards also thanked the people in attendance for their respect to the court during the hearing.
Uncle Robbie Thorpe`s prosecution of King Charles 111 for crimes of genocide will eventually bring the questionable culture of Victoria`s Judicial system under the spot light.
Since the system was built off a genocide, which has never been resolved, let alone discussed, the culture has grown from the roots of its inception and carries those terrible wrongs into its contemporary operations.
How The Victorian Legal System operates impacts upon every person who lives in present day Victoria.
It don’t matter if you are black, white yellow brown or green we are all living under the same cloud.
- As detailed in the submission to Yoorrook from the Victorian Aboriginal Legal Service: The current legal system, including the criminal legal system, is grounded in violence, racism, the lie of terra nullius and denial of justice and Aboriginal self-determination. It is a system that was designed to destroy the oldest continuous culture on earth, and which has not finished pursuing this goal. We continue to see the legacies of historical injustices in the way that our clients are criminalised, marginalised, incarcerated and re-traumatised. Until this structural violence is acknowledged and addressed, the legal 1 The past is the present: the continuation of the colonial project in child protection and criminal justice 46 YOORROOK FOR JUSTICE system will continue to discriminate against Aboriginal Communities and perpetuate the violence that has been perpetrated for the last 230 years.8
- Frontier violence and disease imported by the colonisers were the first forces to break apart Aboriginal families. Thousands of First Peoples were killed in massacres across Victoria.30 These were crimes even under colonial law, however Britain failed to create institutions of state that were adequate to prevent them from happening and for bringing the perpetrators to justice. A culture of impunity developed. First Peoples children were kidnapped, raised by Europeans and exploited for their labour.31 Elders cited in Yoorrook’s Interim Report described this as ‘a source of free labour, translation and knowledge of country, [which] also served to warn other family groups what would be done to them if they didn’t comply with settler demands’.32 Yoorrook has heard evidence of children found as sole survivors of massacres.33 Alma Thorpe told Yoorrook:
King Charles made an apology to the people of Kenya. Let us hope than during his visit to Australia later this year that he also offers that apology to the first nation peoples of Australia.
An excerpt from King Charles’s speech is useful to decipher the value and implications of his apology, from an international law perspective:
The wrongdoings of the past are a cause of the greatest sorrow and the deepest regret. There were abhorrent and unjustifiable acts of violence committed against Kenyans as they waged, as you said at the United Nations, a painful struggle for independence and sovereignty – and for that, there can be no excuse. In coming back to Kenya, it matters greatly to me that I should deepen my own understanding of these wrongs, and that I meet some of those whose lives and communities were so grievously affected.
The legacy of colonial rule is similarly apparent in other east African contexts. German president Frank-Walter Steinmeier recently extended a similar gesture in Tanzania over the brutal suppression of anti-colonial movements. In 2020, Belgium’s King Philippe expressed regrets about the colonial legacy in the Democratic Republic of the Congo.
In parallel to Uncle Robbie Thorpe vs the Crown case there is also an amendment bill in progress in The Federal Parliament bought by Senator Lydia Thorpe. The amendment if passed would remove the power of the attorney general to intervene in a proceeding relating to genocide.
These are the details.
THE SENATE BILLS
Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024
This Bill is a simple change, and as laid out in the Explanatory Memorandum, makes only two substantive
amendments to the Criminal Code Act 1995 (Cth) (Criminal Code) removing the following restrictions so-called Australia included in their domestic implementation of the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention):
1. the restrictions on commencement of proceedings under Division 268 of Chapter 8 of the Criminal
Code, relating to genocide, offences relating to crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court, to those which have gained the written consent of the Attorney-General, whom they will also be prosecuted in the name of; and
2. that a decision by the Attorney-General to give, or to refuse, a consent under section 268.121 is final and cannot be reviewed or appealed, except in the limited circumstance of judicial review by the High Court under section 75(v) of the Constitution.
These changes facilitate truth telling and accountability, without which, there will be no change. Unless governments commit and choose to be held, and hold others accountable, crimes against humanity, genocide, war crimes, suffering and mass death will happen again, over and over again. The lack of proper adherence to international human rights is not because the goals are unable to be reached or there has not been enough time it is due to lack of prioritisation of our collective humanity and lack of accountability. This Bill importantly strengthens accountability for breaches of the Convention, upholds the original spirit and intention of the Convention which intended to ensure genocide would never happen again, and improves the proper domestic implementation of the Convention.
This Bill seeks to uphold the rule of law, a fundamental feature of the legal system of so-called Australia, being the principle that no person, government official or government is above the law. A critical aspect of the rule of law is reviewing, updating and removing laws to make sure they are fair and reflect current social values and it is clear there is an urgent need to prioritise, promote and protect human rights, international humanitarian law, and our collective and individual humanity.
Issues with the operation of the Attorney-General’s fiat
The principle behind the restrictions, commonly known as the Attorney-General’s fiat, is to safeguard against inappropriate prosecutions as noted by Note Verbal No. 38/2018 of the Permanent Mission of Australia to the United Nations. However, historically this country has a poor record of prosecuting persons for international crimes, or even formally recognising when crimes like genocide have occurred, despite overwhelming evidence to the contrary. With respect to state recognition of genocide, academic Dr Melanie O’Brien notes that ‘states are generally reluctant to recognise genocide’ because it may trigger obligations under the Convention or because of the potential repercussions recognition may have on relations with the perpetrator state.
Ellen Van Beukering,an Australian Foreign Policy Fellow, discussed possible reasons for the Australian Government’s reluctance to formally recognise genocide in China, and stated the reason for this lack of action may lie closer to home than we realise: Australia’s colonial past and its mistreatment of First Peoples could be setting a precedent for the nation’s approach to acts of genocide.
As noted by Michael (Ghillar) Anderson, and by academics Anna Hood and Monique Cormier, this provision ‘effectively provides [the Attorney-General] with a carte blanche to determine whether a prosecution makes it to court’ and reference a situation where this has occurred. The alarming rate of child removals is only possible because the Commonwealth of Australia has blocked the full force of the Convention by inserting an Attorney-General’s fiat. In addition, the prospect of litigation by First Peoples no doubt ensured that when the Commonwealth Government finally legislated to make genocide a crime in Australia it did not do so retrospectively to avoid accountability. However, this has not prevented other states from recognising genocide, both at home and abroad, for example, Canada has recognised eight situations where genocide has occurred including on 27 October 2022, Canada’s House of Commons unanimously passed a motion acknowledging the Indian Residential School System as a genocide, following Pope Francis acknowledging it as a genocide. Indeed, the Attorney-General’s fiat itself has functioned as an effective veto power to commencing proceedings under the Convention in the past and functioned as a barrier to justice for victims and survivors of these atrocious crimes.
In constructing the amendments to the Criminal Code in 2002 so as to make the jurisdiction of the International Criminal Court to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court the lawyers who drafted the changes included these two restrictions.
Restrictions which as Lydia Thorpe has so eloquently explained “
“Being able to commence proceedings under Division 268 of Chapter 8 of the Criminal Code without the real or perceived bias of political priorities influencing government decision making in both the domestic and international area, increases trust in government institutions and increases transparency, accountability, and democracy. It does this dual-fold, enabling the people of this country to pursue justice for wrongs committed under the Convention, albeit through the colonial systemically racist legal system, and by enabling accountability of previous decisions of the Attorney-General prohibiting proceedings through judicial review.”
These two restrictions appear to have been added with the sole purpose of obstructing accountability of Australia`s organs of governance both past and present.
It will be interesting to see how the case of Uncle Robbie Thorpe Vs King Charles for the crimes of Genocide and the removal of the Attorney Generals Fiat progress?
Other news articles regarding this very significant case.
Prosecuting Australian Genocide. A chat with Uncle Robbie Thorpe and barrister Len Lindon.
Pearls and irritations article on supreme court hearing 19 july 2024
Uncle Robbie Thorpe wants to prosecute the Crown for genocide. Here’s how he’s doing it
Blocking Genocide Prosecutions is the Australian way.
