Consular Immunity ‘Not Absolute’: Judge Sets Precedent in Case Against Chinese Official
BRISBANE—A new court ruling may determine whether diplomatic immunity extends to consular officials involved in threatening or harming locals. The District Court case on March 13 was held regarding the 2019 incident when Chinese Consular General Xu Jie publicly lauded the assault of student activist, Drew Pavlou, at the University of Queensland (UQ). Pavlou took part in a July 2019 protest supporting Hong Kong pro-democracy activists fighting against a then-proposed extradition law that would curtail the human rights of residents. In response, Pavlou was attacked on university grounds by Chinese international students. Xu released a statement praising their actions. “The consulate general attaches great importance to the safety of Chinese students, affirms the spontaneous patriotic behaviour of Chinese students,” he said. Drew Pavlou speaking at a human rights rally on the grounds of the University of Queensland in Brisbane, Australia on Jul 31, 2019 (Faye Yang/The Epoch Times) Pavlou then started receiving death threats as his name was circulated on Chinese state media and social media. Pavlou’s lawyers have since worked to obtain a protection order against Xu under the Peace and Good Behaviour Act. The application failed in August 2020 after the magistrate ruled Xu had diplomatic immunity because he was deemed to be performing the functions of a consular official. In March 2022, Xu was removed from his post and now serves as the Chinese ambassador to the Cape Verde Islands—a group of islands west of the African continent. The two-year timeframe to appeal the decision has since expired, and on March 13, 2023, a District Court judge was tasked with deciding whether it should be extended. ‘Unnecessary and Futile’ to Issue Order Against Xu Jie Judge Bernard Porter denied the application, however, saying a protection order would be “unnecessary and futile” and only effective if Pavlou continued to “encounter difficulties arising” from Xu’s conduct. “It is now well over three years since the publication of the statement. Even on the applicant’s version of events, there is no suggestion of any act of alleged threat or incitement” since the original statement was published. Front entrance to the University of Queensland on Jan. 12, 2021 in Brisbane, Australia. (Daniel Teng/The Epoch Times) Porter further stated that Xu had left Australia and was working “on the other side of the world.” “Given his location, any order made against him is likely to be futile as the court would have no power to deal with the respondent.” However, the judge did provide additional comment on the diplomatic protections enjoyed by consular officials. New Precedent in Diplomatic Immunity “Consular immunity is not absolute, and care must be taken when a consul’s conduct might impinge on … the free exercise of civil and political rights,” he wrote. Pavlou’s lawyer Mark Tarrant said the decision was the complete opposite of the earlier Magistrate Court’s decision, particularly the argument put forward by Pavlou’s barrister at the time, Tony Morris, who argued that Australian law protected consular officials from prosecution, even if they committed torture. “Free speech is protected,” Tarrant told The Epoch Times, saying it aligned with comments from former Foreign Minister Marise Payne, who had warned diplomatic officials against undermining civil rights through “disruptive or potentially violent behaviour.” “The problem with the [previous] Magistrates Court decision was they were confusing the diplomatic roles, with ambassadors having blanket immunity, while the immunity of consular officials only extending to certain functions such as attending cultural events, issuing visas, and the like,” he said. Tarrant said that decision set the precedent for the Manchester Consulate attack last year that saw a Hong Kong pro-democracy activist dragged inside the gates of the compound and beaten. Hongkongers holding a rally outside the Chinese Consulate in Manchester, UK, were dragged into the consulate and beaten by the staff, on Oct. 16, 2022. (Screenshot via Hong Kong Indigenous Defense Force) Tarrant further added that there had been little case law to explain the extent of diplomatic immunity. “There’s none in Australia. There are some very old ones in Europe, and there’s fairly recent ones in the 1980s in the U.S., but we’ll be the first such case in Australia,” he said. “So, it’s a clear statement by the court that it’s not a function of the consular official to impinge on the free exercise of civil and political rights.”
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BRISBANE—A new court ruling may determine whether diplomatic immunity extends to consular officials involved in threatening or harming locals.
The District Court case on March 13 was held regarding the 2019 incident when Chinese Consular General Xu Jie publicly lauded the assault of student activist, Drew Pavlou, at the University of Queensland (UQ).
Pavlou took part in a July 2019 protest supporting Hong Kong pro-democracy activists fighting against a then-proposed extradition law that would curtail the human rights of residents.
In response, Pavlou was attacked on university grounds by Chinese international students. Xu released a statement praising their actions.
“The consulate general attaches great importance to the safety of Chinese students, affirms the spontaneous patriotic behaviour of Chinese students,” he said.
Pavlou then started receiving death threats as his name was circulated on Chinese state media and social media.
Pavlou’s lawyers have since worked to obtain a protection order against Xu under the Peace and Good Behaviour Act.
The application failed in August 2020 after the magistrate ruled Xu had diplomatic immunity because he was deemed to be performing the functions of a consular official.
In March 2022, Xu was removed from his post and now serves as the Chinese ambassador to the Cape Verde Islands—a group of islands west of the African continent.
The two-year timeframe to appeal the decision has since expired, and on March 13, 2023, a District Court judge was tasked with deciding whether it should be extended.
‘Unnecessary and Futile’ to Issue Order Against Xu Jie
Judge Bernard Porter denied the application, however, saying a protection order would be “unnecessary and futile” and only effective if Pavlou continued to “encounter difficulties arising” from Xu’s conduct.
“It is now well over three years since the publication of the statement. Even on the applicant’s version of events, there is no suggestion of any act of alleged threat or incitement” since the original statement was published.
Porter further stated that Xu had left Australia and was working “on the other side of the world.”
“Given his location, any order made against him is likely to be futile as the court would have no power to deal with the respondent.”
However, the judge did provide additional comment on the diplomatic protections enjoyed by consular officials.
New Precedent in Diplomatic Immunity
“Consular immunity is not absolute, and care must be taken when a consul’s conduct might impinge on … the free exercise of civil and political rights,” he wrote.
Pavlou’s lawyer Mark Tarrant said the decision was the complete opposite of the earlier Magistrate Court’s decision, particularly the argument put forward by Pavlou’s barrister at the time, Tony Morris, who argued that Australian law protected consular officials from prosecution, even if they committed torture.
“Free speech is protected,” Tarrant told The Epoch Times, saying it aligned with comments from former Foreign Minister Marise Payne, who had warned diplomatic officials against undermining civil rights through “disruptive or potentially violent behaviour.”
“The problem with the [previous] Magistrates Court decision was they were confusing the diplomatic roles, with ambassadors having blanket immunity, while the immunity of consular officials only extending to certain functions such as attending cultural events, issuing visas, and the like,” he said.
Tarrant said that decision set the precedent for the Manchester Consulate attack last year that saw a Hong Kong pro-democracy activist dragged inside the gates of the compound and beaten.
Tarrant further added that there had been little case law to explain the extent of diplomatic immunity.
“There’s none in Australia. There are some very old ones in Europe, and there’s fairly recent ones in the 1980s in the U.S., but we’ll be the first such case in Australia,” he said. “So, it’s a clear statement by the court that it’s not a function of the consular official to impinge on the free exercise of civil and political rights.”
