On 17 March 2020, the Federal Court of Australia dismissed an action brought against Federal Treasurer Josh Frydenberg, which challenged his eligibility to have been elected to sit in Parliament on 18 May 2019, in Staindl v Frydenberg  FCAFC 41. The Petitioner, Michael Staindl, sought to rely on section 44(i) of the Commonwealth of Australia Constitution Act (Cth) (“the Constitution”). However, the Federal Court unanimously held that the Petitioner had not proved that the Respondent was, or ever has been a citizen of Hungary, and therefore could not have been ineligible to be elected to Parliament in 2019.
The Respondent’s mother, Ms Strausz, was born in Budapest, Hungary, in 1943, and was a Hungarian citizen at birth. Ms Strausz and her family left Hungary in 1949, following the events of the Second World War, whilst Hungary was under the authority of the ruling Communist Party. The Strausz family left Hungary using a form of single use emigrant exit passport, with no right to return to Hungary. The family arrived in Australia in 1950. Ms Strausz became a naturalised Australian citizen in 1957. The Respondent was born in Australia, in 1971.
The Court emphasised the importance of the historical events leaving up to the Strausz's family emigration, in looking at the facts, and comments in paragraph 69:
“It is against this background of catastrophe and anti-Jewish violence and terror that the proof and assessment of law and legal status of Jewish Hungarians, such as the Strausz family, wishing to leave Hungary for a new life somewhere, must be undertaken.”
Following the filing of an agreed statement of facts, the Petitioner accepted that on leaving Hungary, Ms Strausz had no rights of citizenship in Hungary that would satisfy the required description of citizenship for the purposes of section 44(i) of the Constitution. However, the Petitioner submitted that Ms Strausz's departure left her with a 'shell' of citizenship, following the secret measures and powers of the communist government presiding over Hungary at the time. This 'shell' citizenship did not confer onto Ms Strausz any rights and liabilities, and afforded her no protection or allegience to Hungary.
The Petitioner argued that it was this 'shell' citizenship that Ms Strausz passed to the Respondent at his birth, and that following the end of the Communist rule in Hungary in 1989, it was this shell that could become the vessel for reciprocal rights and duties between the Respondent and Hungary. Therefore, it was from these rights and duties, that were revived, that the Respondent had allegiance and protection to a foreign power, in breach of section 44(i) of the Constitution.
Section 44(i) of the Constitution states:
“Any person who: (i)… is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”
In Re Canavan  HCA 45, the High Court stated that the purpose of section 44(i) was to ensure that no parliamentary member had split allegiance between Australia and a foreign power. In paragraph 71, the Court summarised:
“The ultimate question is whether the evidence permits the conclusion that the petitioner has proved that the Respondent was not eligible to be elected or to sit as a member of Parliament because from 1989 he owed a reciprocal obligation of allegiance to Hungary as a citizen of that State.”
The Court ultimately rejected the Petitioner's argument of a 'shell' citizenship, finding no legal evidence in Hungarian law that such a citizenship could exist. Whilst, there was evidence that Hungarian citizenship did pass from mother to son at birth, the argument the Petitioner put forward was for a 'shell', rather than legal rights. The Court found that under the authority of the ruling Communist Party, people leaving Hungary had no right to return, and citizenship of emigrants were 'destroyed'.
Additionally, the Court accepted expert evidence that emigration by use of a single exit passport, in the context of 1949, amounted to voluntary dismissal or renunciation of citizenship by law under Hungarian law. Therefore, the Court found that at the time of arrival in Australia, the Strausz family were stateless, and the Respondent is not, and never was, a citizen of Hungary.
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Re Canavan  HCA 45
Staindl v Frydenberg  FCAFC 41
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