Case Summary and Outcome

The District Court of Queensland, Australia dismissed an application for condonation for a late appeal to the finding that consular immunity protected a diplomat from statements he had made. After participating in a pro-Hong Kong rally at his university, a student was targeted by pro-China counter-protesters. Subsequently, the Chinese Consul General in Brisbane issued a statement supporting the counter protesters, which lead to the student receiving online abuse and death threats. A magistrates court dismissed the student’s complaint that the Consul General’s statement constituted threat, finding that the Consul General enjoyed diplomatic immunity from civil and criminal liability. Although the Court found that it was futile to continue two years later, it recognized the student’s argument that consular immunity is not absolute and should be examined when a diplomat’s actions could infringe civil and political rights.

Facts

On July 24, 2019, Drew Pavlou, a student at the University of Queensland, Australia, participated in a rally at the university’s St. Lucia Campus in support of Hong Kong’s democracy and critical of the Chinese Communist Party and Confucius Institute. While Pavlou was using a megaphone to voice chants critical of Chinese President Xi Jinping during the rally, some counter-protestors ripped protest signs and assaulted Pavlou. Later, another masked man struck Pavlou in the back of his head and tore a poster criticizing the Confucius Institute. The protest was widely covered by many leading news outlets.

On July 25, 2019, Xu Jie, the Consul General of the People’s Republic of China (PRC) in Brisbane, Australia, published a statement on the Consulate General’s website in support of the counter protestors. On the same day, an article was published in an English-language newspaper in China which referred to Xu Jie’s statement and named Pavlou as one of the organizers of the protest. This publication of Pavlou’s name led to online abuse and death threats.  On October 9, 2019, Pavlou was assaulted by a supporter of the Chinese Communist Party during a student election campaign.

On October 14, 2019, Pavlou filed a complaint against Xu Jie at the Brisbane Magistrate Court under Section 5 (Complaint in Breach of Peace) of the Peace and Good Behaviour Act, 1982. Pavlou submitted that Xu Jie’s statement amounted to a threat directed towards individuals who participate in demonstrations critical of the conduct of the PRC, including himself. Pavlou submitted that the statement implied that Xu Jie intended to arrange for others to assault these individuals. To support this claim, Pavlou presented evidence (videos of protests and news outlet articles) and context surrounding the statement, demonstrating its threatening nature when taken in context. He submitted that that he was genuinely in fear of Xu Jie which could lead to further assault and death threats.

Xu Jie presented his argument through an indirect submission as he was not present in court in person. He argued that he had diplomatic immunity under Article 43(1) of the Vienna Convention on Consular Relations (VCCR). Drawing an analogy with the case of Zhang v Zemin (2010), Xu Jie asserted that Article 43(1) should be deemed self-executing, meaning that he was not obligated to raise the issue of immunity during the proceeding explicitly. He highlighted the policy considerations behind the legislative scheme, emphasizing that one of its purposes was to shield foreign states and their consular officers from unnecessary involvement in legal disputes, and so requiring them to contest immunity in every circumstance would be incongruent with this purpose. Xu Jie invoked Articles 5(a), 5(e), and 5(m) of the VCCR to argue that the publication of the statement in question was within the scope of his consular functions, thus qualifying for immunity.

In his submission as amicus curiae (friend of the court), Mr. A. Morris QC asserted that, regarding diplomatic immunity, the court is not tasked with judging the political legitimacy of the actions of the Chinese Consul-General but only whether he was acting in the interest of Chinese nationals and the state. Any concerns about the proper use of a consular position would fall under the purview of Australia’s Department of Foreign Affairs. Mr Morris further noted that “the conduct to which Mr Pavlou was subjected, [] falls well short of torture, but even torture is protected by [the Federal Consulate Privileges and Immunities Act of 1972]”.

On August 10, 2020, Deputy Chief Magistrate Brassington dismissed the complaint, holding that Xu Jie was protected by consular immunity as it was “reasonably open” that the issuing of the statement was part of the exercise of his consular functions. [para. 32]

In August 2022, Pavlou filed an Application for an Extension of Time to Appeal and a Notice of Appeal before the District Court of Queensland, seeking leave to challenge the Brisbane Magistrate Court’s ruling that Xu Jie was immune from liability.

Decision Overview

Judge Bernard Porter KC delivered the judgment. The central question for the Court’s determination was whether Pavlou’s appeal had been brought in time.

Pavlou made two arguments: that Xu Jie’s statement constituted a threat under section 5(1)(b) of the Peace and Good Behaviour Act (PGBA); and that, when interpreted accurately in the context of Australian domestic law, publishing the statement fell outside the scope of immunity granted to Xu Jiu as a consular officer under the VCCR. He submitted that, correctly interpreted, Article 5 of the Australian law, the Consular Privileges and Immunities Act, 1972 should still require consuls to respect the laws of the receiving state. Consequently, actions that suppressed freedom of speech and assembly within Australia, being contrary to international law and interfering with the internal affairs of the receiving State, would not be shielded by immunity.

The Court acknowledged Pavlou’s explanation that the delay in filing the appeal was due to his difficulties in locating legal representation until eventually securing services through “LawRight’s Pro Bono Connect scheme”.

The Court described the civil nature of the proceedings under the PGBA as being aimed at restraining or deterring future breaches of the peace, rather than punishing past acts. This provided the Court with discretionary power in determining whether to make an order or not, depending on the likelihood of future breaches of the peace by a defendant.

The Court noted that although difficulties arose from the recent conduct of unknown individuals associated with the PRC, there was no indication that Xu Jiu had any involvement in these acts. It also noted that considerable time had passed since the publication of the statement, and there were no recent allegations of threatening or inciting acts from Xu Jie.

The Court stressed that Xu Jie had left Australia for a diplomatic post in Cape Verde and had little interest in Queensland or Australia and so found that there was no realistic risk of future acts by Xu Jie that might breach the peace in Queensland. The Court also emphasized the likely futility of making an order against Xu Jie, considering his location and lack of involvement in the alleged acts as such an order would likely be unenforceable.

Accordingly, the Court found that even if Pavlou succeeded in making his case, the complaint would likely be dismissed based on the Court’s discretionary power under Section 7 of the PGBA. It dismissed the application for an extension of the time to appeal as it appeared futile to proceed with the appeal in light of the probable dismissal of the complaint.

However, the Court addressed several points relevant to Pavlou’s freedom of expression claims in its judgment. The Court recognized the merit in Pavlou’s contention that consular immunity is not absolute. It accepted that, as Pavlou argued, there is a need to assess the scope of consular immunity conferred by Article 43(1) of the VCCR. The Court referred to Pavlou’s submissions where he had argued that “the publication of a political statement that suppresses the exercise of freedom of speech and freedom of assembly in Australia is not an exercise of a consular function”. [para. 37] Pavlou had maintained that this conduct cannot fall under a consular function because it “is not within the limits permitted by international law, constitutes an interference in the internal affairs of the receiving state (Australia) and does not respect, or is prohibited by, the laws of the receiving state”. [para. 37]

Accordingly, the Court cautioned that “care must be taken when a consul’s conduct may impinge on, inter alia, the free exercise of civil and political rights.” [para. 49]

The Court made it explicitly clear that its judgment should not be interpreted as an endorsement or rejection of the merits of Pavlou’s case regarding the threshold issue raised under Section 5 of the PGBA against Xu Jie’s statements, and that the question of a consul’s immunity when the right to freedom of expression is infringed has not been determined in Australia.