Activist loses bid in legal fight with Chinese diplomat
Activist Drew Pavlou may have lost his legal fight with a Chinese diplomat but his solicitor says their case has set a precedent.
Mark Tarrant believes their unsuccessful bid has been worth the effort because a judge says consular immunity is not absolute.
Three years after his complaint against China's ex-Brisbane consul-general Xu Jie was dismissed, Mr Pavlou was refused an appeal application in Brisbane District Court on Monday.
He had been seeking a Peace and Good Behaviour Act (PGBA) order, claiming Dr Xu started a brutal harassment campaign against him.
After Mr Pavlou was assaulted at a July 2019 protest at the University of Queensland, Dr Xu issued a press release as Brisbane consul-general which the human rights campaigner said incited more violence against him.
His PGBA application was dismissed in August 2020, with a Brisbane magistrate ruling Dr Xu had consular immunity.
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 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.
Mr Pavlou had lodged the appeal in August 2022 after seeking legal advice from international experts but it was nearly two years after the time limit expiry.
Mr Pavlou needed an extension of time to appeal but his application was refused by Judge Porter on Monday.
He said a PGBA order would be "unnecessary and futile", with Dr Xu out of the country and no evidence of any alleged conduct since July 2019.
Dr Xu left Australia in March 2022 and is now a Chinese ambassador to the Cape Verde Islands.
"I think it is fair to assume the respondent no longer has any duty nor interest in involving himself in events in Queensland," Judge Porter said in his judgment.
Mr Pavlou was not present in Brisbane on Monday but had described it as a "landmark case".
"It's the principle. I think the court should issue an order against him (Dr Xu) to make clear such conduct is unacceptable," Mr Pavlou told AAP.
"His statement ... did act as the starting gun to the extended and at times brutal campaign of harassment me and my family have received in Australia."