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’s lawyers have since worked to obtain a protection order against Xu under the Peace and Good Behaviour Act.
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.
‘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.”
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.
“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 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.”