Drew Pavlou v Xu Jie

Drew Pavlou v Xu Jie, cited as Pavlou v Xu [2023] QDC 38, is a decision by the Brisbane District Court in Queensland, Australia about whether a statement made by a Consul General from the People's Republic of China praising anti-free speech activities in his receiving State is a ‘consular function’ and therefore covered by the consular immunity provisions of the Vienna Convention on Consular Relations 1963.

In his decision Judge Porter KC made the following comments about the limits of consular immunity under the Vienna Convention on Consular Relations 1963:

‘First, consular immunity as conferred by Article 43(1) is limited to the defined consular functions. In my view, there is considerable merit in the arguments advanced by Mr Stumer which are summarised in paragraph (37] above and developed more fully in his written outline. Consular immunity is not absolute, and care must be taken when a consul's conduct might impinge on, inter alia, the free exercise of civil and political rights.’^[1]

The Applicant in Pavlou v Xu was Drew Pavlou, an Australian critic of human rights abuses committed by the People's Republic of China.

The Respondent was the People's Republic of China Brisbane Consul General Xu Jie.

Pavlou's legal action against Xu was essentially his attempt to protect his right to freely criticize in Australia the human rights abuses committed by the People's Republic of China.

The Pavlou v Xu decision is included in Columbia University's ‘Global Freedom of Expression’ case law database.^[2]

Background

On 24 July 2019 during the University of Queensland's Student Union ‘Market Day’ at St Lucia campus an organised mob of 500-600 pro-PRC supporters, who according to Queensland Police Service (QPS) surrounded 30-60 peaceful pro-Hong Kong democracy, pro-Uyghur and pro-Tibet independence protestors including UQ student Pavlou, who were then attacked multiple times.

QPS has confirmed that the violence was started by the ‘counter-protestors’ and not by the peaceful pro-democracy protestors.

A three-man pro-PRC team attacked Pavlou, then aged 20 whilst he was sitting on the ground at UQ chanting ‘Hey hey ho ho Xi Jinping has to go’ using a megaphone and holding a placard ‘Close Confucius Institute’. Video footage reveals the leader of the attack team is a man in a white sweatshirt who speaking into his earpiece as he organized the attack.

Apart from the red backpack man who attacks Pavlou whilst he was using his megaphone there is a man wearing a cap & sunglasses and holding a red bag standing next to a column (‘the cap man’) observing Pavlou.

As the red backpack man gets ready to attack Pavlou the cap man looks towards the leader in the white sweatshirt and begins to smirk as he knows what is coming next. This is clear evidence of a pre-planned attack.

Just before he attacks, the red backpack man looks up for the final go ahead from the leader - the white sweatshirt man.

The red backpack suddenly and without warning grabs Mr Pavlou's protest sign before he grabs the megaphone from Pavlou and hurls it over Pavlou's head.

Pavlou jumps up and is assaulted by leader of the attack team, the man in the white sweatshirt and the red backpack man.

The two men punch Pavlou in the ribs and on the side of the head.

Later in the day, a masked man strikes Pavlou on the back of the head and grabs a poster criticizing the Confucius Institute from Pavlou's hands and tears it apart.

Once Pavlou's right of free speech has been excised from the UQ campus, a boom box playing the People's Republic of China national anthem 'March of the Volunteers' is held aloft and there is a victory salute.^[3][4]

The next day, on 25 July 2019 Xu published a statement in Chinese on the People's Republic of China Brisbane Consulate-General website praising the actions of the counter-protestors.^[5]

Australian Foreign Minister Marise Payne's response to Xu's statement, as reported by SBS on 27 July 2019 shows that the Minister did not see Xu's statement as being a ‘consular function’ and therefore not protected under the immunity provisions of the Vienna Convention on Consular Relations 1963:

‘Foreign Minister Marise Payne has issued a warning to foreign diplomatic representatives residing in Australia that the nation will not tolerate interference in the exercise of free speech.

It came after a Chinese diplomat backed the "patriotic behaviour" of Chinese students who clashed with pro-Hong Kong protesters at the University of Queensland this week.

Senator Payne said the right to free speech and to peaceful and lawful protest is protected in Australia, even on contentious and sensitive issues.

"The Australian Government expects all foreign diplomatic representatives to respect these rights," she said in comments obtained by AAP.

"The Government would be particularly concerned if any foreign diplomatic mission were to act in ways that could undermine such rights, including by encouraging disruptive or potentially violent behaviour."^[6]

During his interview on the ABC News Breakfast TV show on 12 December 2019 US Ambassador to Australia Arthur B. Culvahouse Jr made the following comments about Xu's statement:

‘I would say that Foreign Minister Payne has expressed her deep concern about too, about the Consul General, the Chinese Consul- General in Brisbane who was encouraging Chinese students at the University of Queensland to harass pro-Hong Kong students who were demonstrating in favour of democracy in Hong Kong’^[7][8]

Pavlou also received multiple death threats and death threats were made against his family members.^[9]

On 9 October 2019 whilst campaigning for UQ student elections a pro-PRC man assaulted Pavlou.^[1]

Peace and Good Behaviour Order application by Pavlou

Seeking protection from the violence directed at him, on 14 October 2019 Pavlou filed a Peace and Good Behaviour Order complaint application against Xu at the Brisbane Magistrates Court, under Section 4 of the Peace and Good Behaviour Act 1982.^[10]

On 24 July 2020 Pavlou attended his Peace and Good Behaviour Order complaint hearing against Xu at the Brisbane Magistrates Court, presided over by Deputy Chief Magistrate Janelle Brassington.

The Australian Government Solicitor sent two observers to attend the hearing.

DCM Brassington stated at the commencement of the proceedings that the Court did not have jurisdiction to consider Pavlou's application against Xu as he was covered by consular immunity.

Whilst making her comments her Honour was referring to a submission from the PRC Embassy Canberra that had not been served on Pavlou.

As a consequence of this 'ambush' the hearing was adjourned to 10 August 2020.^[11]

At the hearing Pavlou was handed a copy of the PRC Embassy Canberra's covering letter dated 16 July 2020 by DCM Brassington's Clerk.

The PRC Embassy Canberra letter was signed by Mr Wang Xining, the Minister and Deputy Head of Mission at the Embassy of the People's Republic of China in Australia, the PRC's second most senior diplomat in Australia at the time.

Mr Wang's letter was sent to DFAT, Canberra with a cc to the Brisbane Magistrates Court.

Mr Wang writes in his letter:

'The Embassy would like to restate that in accordance with the Vienna Convention on Consular Relations (VCCR), Dr Xu shall not be amenable to the jurisdiction of the Court for his act performed in the exercise of consular function.'

Mr Wang states:

'The Embassy also has the honour to once again remind that Australia has the obligation to respect Dr Xu's immunity and should take effective measures to ensure the case is dismissed in time.'

Mr Wang then states:

'Attached hereby is the Legal Memorandum on this matter, of which the judge in charge is expected to be fully aware.' ^[12]

Brisbane Magistrates Court dismisses Mr Pavlou's Complaint against Consul-General Xu Jie – ‘friend of the court’ Anthony Morris KC tells Court Xu can lawfully torture Pavlou

As he explained to the Court, barrister Anthony Morris KC appeared at Pavlou's adjourned hearing on 10 August 2020 in the capacity of ‘amicus curiae’ [or ‘friend of the court’].

Pavlou was without legal representation during his adjourned hearing, despite media reports describing Mr Morris KC as Pavlou's barrister.

ABC News reported Mr Morris KC assisted DCM Brassington to dismiss Mr Pavlou's Complaint against Xu Jie as follows:

'Tony Morris QC, told the court Australian law protected consular officials from being prosecuted for a range of offences, including torture.'

"[This] falls well short of torture, but even torture is protected by this legislation," Mr Morris told the court.'^[13]

Mr Morris KC advised the Court:

‘even torture is protected by this legislation. Those are my submissions.’

To which DCM Brassington replied:

‘Thank you, Mr Morris. Very helpful, can I say.’^[14]

On 10 August 2020 DCM Brassington dismissed Pavlou's complaint application for a Peace and Good Behaviour Order against Xu finding he had consular immunity under Article 43 of the Vienna Convention on Consular Relations 1963:

‘I find that Dr Jie is a consular official and not amendable to the jurisdiction under Article 43. The complaint is dismissed.’^[15]

On 10 August 2020 Pavlou left the Brisbane Magistrates Court even more vulnerable than when he entered in the morning. According to Mr Morris KC, People's Republic of China Consul General Xu could now legally torture Pavlou in Australia, fully protected by the consular immunity provisions within the Vienna Convention on Consular Relations 1963.

Mr Morris KC's advice to the Court that ‘even torture is protected by this legislation’ set a dangerous precedent.

Falling short of ‘torture’, on Sunday 16 October 2022 whilst Hong Kong protester Bob Chan was peacefully protesting outside the People's Republic of China Consulate in Manchester, the United Kingdom he was dragged inside the consular grounds by consular staff and assaulted by Consul General Zheng Xiyuan.^[16]

Six months after Australian citizen Pavlou was assaulted at his UQ campus and whilst he had an active complaint against Xu at the Brisbane Magistrates Court, which the Queensland Chief Justice Catherine Holmes had direct oversight over, on 20 January 2020 the PRC's Peoples Daily published a photograph of Queensland Chief Justice Catherine Holmes, as Acting General of Queensland standing onstage in Brisbane with Xu where her Honour was presenting a video award on behalf of the PRC:

‘..the entry “Kungfu Kangaroo” won the Most Popular in China Award. ... the award, given by Dr. Xu Jie, Consul-General of the People's Republic of China in Brisbane and the Honourable Chief Justice Catherine Holmes, Acting Governor of Queensland.^[17]

Less than six months after Australian Foreign Minister Marise Payne ‘…slapped down a Chinese diplomat [Xu] for interfering in a protest between students over tensions in Hong Kong’ and a month after US Ambassador to Australia said on Australian television that Xu ‘…was encouraging Chinese students at the University of Queensland to harass pro-Hong Kong students who were demonstrating in favour of democracy in Hong Kong’ Queensland Chief Justice Catherine Holmes, as the Acting Governor of Queensland had this to say to Xu at a Chinese New Year reception at Government House in Brisbane on 15 January 2020:

‘I once again thank the Consul General for the warm hospitality afforded to us all tonight.’

‘Soon after Dr Xu arrived in Brisbane in July 2017, I had the great honour of welcoming both him and the Chinese Ambassador to Australia, His Excellency Mr Jingye Cheng, to my chambers.'

‘As Acting Governor, I congratulate Dr Xu and the Consulate personnel on their continuing endeavours to promote these bonds for the benefit of the people of China and of Queensland.’^[18]

Pavlou files Brisbane District Court application

On 8 August 2022 Pavlou filed an application at the Brisbane District Court for an extension to appeal out of time of the order by the Brisbane Magistrates Court to dismiss his complaint against Xu.

The presiding judge at Pavlou’s Brisbane District Court application hearing was Judge Bernard Porter KC.

References by Brisbane District Court Judge Porter KC to Anthony Morris KC appearing at Pavlou's Brisbane Magistrates Court hearing as amicus curiae on 10.08.20

Judge Porter:

‘And – well, Mr Morris – I don't say this critical of him- but didn't really advance a contrary proposition to the application of the consular immunity^[19]’.

[page 1, paragraph 45 of Brisbane District Court hearing transcript dated 08.11.22]

Judge Porter:

‘And so it comes before her Honour and then Mr Morris comes and makes a submission that it is covered by immunity and her Honour decides that without, as far as I can tell, anyone reading any material formally.’^[20]

[page 12, paragraph 5 Brisbane District Court hearing transcript 25.11.22]

Judge Porter:

Mr Stumer adopted a quite different position from Mr Morris on the application of immunity under the Convention to the allegations by the applicant. In a careful and scholarly submission, he contended that:

(a) The Statement did, on its proper construction and in context, comprise a threat by the respondent of the kind identified in s 5(1)(b) PGBA; and

(b) On the proper construction of the VCCR as applied in Australia domestic law, the act of publishing the Statement fell outside the scope of immunity conferred on the respondents as a consular officer.'

[page 11, paragraph 36 of Pavlou v Xu Brisbane District Court decision dated 13.03.23]

Judge Porter:

‘…for the diligent work that you have both done, I infer on a pro bono basis, I am very grateful.’

Judge Porter was referring to Pavlou's pro bono barrister and lawyer.

[page 81, paragraph 30 Brisbane District Court hearing transcript 25.11.22]^[21]

On 13 March 2023 Judge Porter dismissed Pavlou's application as Xu had departed Australia around March 2022 and as of November 2022 Xu was the PRC Ambassador to the Cape Verde Islands.

Laine Clark reporting for the Australian Associated Press on the decision:

'"Mr Pavlou's barrister at the time, Tony Morris, told the court Australian law protected consular officials from being prosecuted for a range of offences including torture.'

'But Mr Tarrant [Pavlou's pro bono lawyer] said Judge Bernard Porter's comment on consular immunity in his judgment on Monday set a precedent.'

"Consular immunity is not absolute and care must be taken when a consul's conduct might impinge on ... (amongst other things) the free exercise of civil and political rights," Judge Porter said.’

'Mr Tarrant said it was the opposite of what Mr Morris had told the court three years ago.'

"He (Judge Porter) made it clear consular immunity is not absolute. That's something, that sets a good precedent," he told AAP.

"If we had it in time we probably would have a different outcome."

'Mr Tarrant said there were very few consular immunity cases in the world and Mr Pavlou's matter marked the first in Australia.'^[22]