Legal Analysis: You Cannot Prosecute the Crown by Denying the Crown
Indigenous activist Robbie Thorpe wants to prosecute King Charles III for genocide. Having failed in the Victorian courts, he reportedly intends to take his case to the High Court of Australia. There is one rather large constitutional problem with this project. Thorpe wants a court created by the Australian Constitution, exercising the judicial power of the Commonwealth within Australia's constitutional order, to entertain an argument whose more ambitious premise challenges the sovereignty upon which that constitutional order rests. The High Court has encountered that problem before, and the answer has not been encouraging for Thorpe's position.
Thorpe, a Krauatungalung elder and long-time Indigenous sovereignty activist, attempted to commence a private prosecution in the Melbourne Magistrates' Court alleging continuing genocide against Australia's First Peoples. According to reports of the proceedings, he sought to rely upon Commonwealth genocide law, common law and First Peoples' sovereign law. The Magistrates' Court registrar refused to accept the charge sheet because it did not disclose an offence known to Victorian law. Thorpe challenged that decision in the Supreme Court of Victoria and lost. On 28 September 2026, the Victorian Court of Appeal refused leave to appeal, concluding that the proposed appeal had no real prospect of success.
Thorpe reportedly intends to try the High Court, but there is an intriguing detail missing from much of the coverage: he has effectively been there before. On 12 March 2026, Gordon and Beech-Jones JJ refused Thorpe special leave in another proceeding arising from his attempts to establish what he called an Aboriginal Genocide Court and initiate genocide proceedings against King Charles III and Victorian Premier Jacinta Allan. The High Court concluded that the proposed appeal raised no question of general principle and that there was no reason to doubt the correctness of the Victorian Court of Appeal's decision. That does not formally determine every differently constituted proceeding Thorpe might subsequently bring, but it should put some cold water on the suggestion that the High Court represents unexplored constitutional territory.
The difficulties begin before we even reach the Crown. Genocide is an extraordinarily serious allegation and, correspondingly, an extraordinarily specific criminal offence. Division 268 of the Commonwealth Criminal Code criminalises genocide by killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent births, and forcibly transferring children. These offences require more than showing that an identifiable population suffers disadvantage, dispossession, incarceration, ill-health or discriminatory treatment. The defining element of genocide is the specific intention to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such.
That distinction matters because one can believe that Aboriginal Australians suffered catastrophic dispossession following European settlement, condemn particular government policies, and debate deaths in custody, child removal, imprisonment, health disparities and land rights, all questionable, without any of those propositions, standing alone, proving the elements of the criminal offence of genocide against the present King.
Then comes an even more immediate obstacle. Section 268.121 of the Commonwealth Criminal Code provides that proceedings for offences under Division 268 must not be commenced without the written consent of the Commonwealth Attorney-General. More devastatingly for the private-prosecution theory, such an offence "may only be prosecuted in the name of the Attorney-General." Parliament has created genocide offences, but Parliament has also prescribed who may prosecute them and under what conditions. A private citizen cannot simply substitute himself for the Attorney-General because he believes the Attorney-General ought to prosecute.
There is then the peculiar position of the monarch himself. The Crown historically enjoys immunities that do not apply to ordinary citizens. Constitutional scholar Professor Anne Twomey has observed that the monarch's traditional personal immunity from criminal and civil proceedings in Britain was probably inherited in Australia, although the precise proposition has apparently never been squarely determined by the High Court in the circumstances now imagined. That qualification is important because there is no need to manufacture constitutional certainty where the High Court has not supplied it. Royal immunity may nevertheless prove almost superfluous because Thorpe faces more fundamental obstacles before anyone needs to answer the fascinating hypothetical question of whether an Australian court could criminally prosecute the reigning monarch.
This brings us to Coe v Commonwealth. Paul Coe brought proceedings in 1978 advancing claims concerning Aboriginal sovereignty, dispossession and the Crown's acquisition of Australia. When the case reached the High Court in 1979, the attempt to challenge Crown sovereignty through Australian municipal law ran into a fundamental problem. Australian courts exercise Australian judicial authority. They cannot simultaneously exercise that authority while adjudicating upon a proposition that denies the legal foundation from which that authority comes. Gibbs J treated the acquisition of sovereignty as an act of State whose validity could not be challenged in Australian municipal courts. The essential constitutional proposition survived the enormous subsequent transformation in Australian native-title law.
That qualification deserves emphasis. Mabo v Queensland (No 2) rejected the doctrine that Australia had been legally empty of proprietary interests before British settlement; a case based more upon political correctness than reasoned argument. But the High Court recognised native title and acknowledged that Indigenous laws and customs could generate rights to land surviving the Crown's acquisition of sovereignty. However, Mabo did not hold that Crown sovereignty disappeared. The distinction became explicit when Coe returned to the High Court in 1993. Mason CJ rejected the proposition that Aboriginal peoples possessed a sovereignty adverse to the Crown or constituted separate "domestic dependent nations" within Australia.
That distinction is crucial. Recognition of Aboriginal prior occupation, native title, compensation for extinguished rights, and Indigenous laws and customs within Australian law are all matters Australian courts can address. Whether an Australian court can declare the sovereignty under which it itself exists invalid is something else entirely. It cannot.
This produces the extraordinary circularity at the heart of Thorpe's litigation. The High Court exists because of Chapter III of the Australian Constitution. Its Justices exercise the judicial power of the Commonwealth. The Commonwealth itself exists within a constitutional system historically established under the Crown, and Charles III is King of Australia under that constitutional order. Thorpe's broader sovereignty argument asks institutions deriving their authority from that order to recognise an alternative sovereign authority capable of overriding it. But if the Australian constitutional order possesses the authority necessary for the High Court to decide Thorpe's case, the Court necessarily exercises the very Australian sovereignty his broader argument challenges. If, conversely, that sovereignty is legally nonexistent, one has difficulty explaining why an order from the High Court created under it should possess authority over anybody. One cannot climb onto the constitutional branch and then ask the branch to declare that the tree supporting it does not exist.
That does not mean that everything done under Crown sovereignty is beyond judicial examination. Quite the opposite. Australian governments lose cases constantly. Ministers have their decisions overturned, legislation can be declared constitutionally invalid, governments can owe compensation, Crown officials can act unlawfully, and native-title rights can be enforced against governments. The rule of law means that governmental power is constrained by law. But there is a profound difference between asking an Australian court whether Australian governmental power has been exercised lawfully and asking that court to deny the sovereignty which supplies the court with its own jurisdiction. Coe marks that boundary.
For monarchists there is a broader lesson here. The Crown is sometimes spoken about as though it were merely a man wearing an expensive hat who happened to inherit an unusually large house. Constitutionally, the Crown is something much more important. It is woven through the legal personality of government, executive authority, Parliament, the administration of justice and the historical continuity of the Australian state. That does not place governments above law. The achievement of constitutional monarchy is almost precisely the reverse: the Crown provides continuity while ministers govern, Parliaments legislate and independent courts enforce the law.
King Charles does not personally devise Australia's Indigenous policy. He does not determine Victorian imprisonment rates, administer Aboriginal health services or decide Australian land-use policy. Under Australia's constitutional monarchy, those matters are overwhelmingly conducted by Australian ministers responsible to Australian Parliaments and ultimately Australian electors. Trying to place the King personally in the dock for contemporary Australian social conditions therefore misunderstands not merely genocide law but the practical operation of constitutional monarchy.
None of this requires pretending that Australian history was painless. Indigenous dispossession was real, violence was real, and policies now regarded as profoundly wrong were real. Australian law itself increasingly acknowledges those historical facts. But historical injustice does not dispense with the elements of a criminal offence. It does not repeal the Commonwealth Parliament's rules governing genocide prosecutions, automatically overcome whatever personal immunity attaches to the sovereign, or empower an Australian court to recognise a competing sovereignty that negates the constitutional authority under which that court sits.
Thorpe can seek special leave again, and every Australian is entitled to invoke the courts according to law. But he faces an impressive series of legal walls: the actual elements of genocide, the statutory restrictions upon genocide prosecutions, possible royal immunity, the constitutional status of the Crown and, ultimately, the sovereignty principle running through Coe.
There is a final irony. Thorpe proposes to ask the High Court of Australia to condemn the Crown while simultaneously asking that Court to exercise the authority of the Australian state on his behalf. The Crown is apparently illegitimate when it supplies Australia's sovereignty, but the Australian judicial system becomes legitimate when Thorpe wants an order from it. Nearly half a century ago, Coe exposed the problem. Changing the defendant's name to King Charles III does not make it disappear.
https://www.gbnews.com/royal/royal-news-activist-prosecute-king-charles-alleged-genocide-appeal-rejected-courts
