Inside Story

Game of shells

How the communists saved Josh Frydenberg

Jeremy Gans 25 March 2020 3021 words

Josh Frydenberg’s fate was resolved by the Federal Court contemplating what counts as “law” in a totalitarian state. Lukas Koch/AAP image

When five members of the Strausz family left Hungary for Austria seventy years ago, they crossed a border that had changed dramatically over the years. Back in 1912, the year Etelka Strausz was born in Budapest, it had merely been a division within the dying Austro-Hungarian Empire. When her middle child Erica was born in the same city in 1943, the border was a nominal one that separated the Third Reich from “independent” Hungary, six months before the Nazis occupied their ally. By September 1949, when the family permanently left their homeland, it was a militarised section of the Iron Curtain, and would persist for another four decades.

Last week the Federal Court, sitting as the Court of Disputed Returns, issued its judgement on what exactly happened when the Strauszes left Hungary. The Australian court’s unlikely interest in events seven decades ago and 16,000 kilometres away was focused on what five-year-old Erica took with her across the border.

We know that two decades later she would give birth to a son, Joshua, in Melbourne. The court’s concern was whether she brought her birth citizenship, first to Austria, then to Australia, and finally into labour. If she was a dual Australian–Hungarian citizen on 17 July 1971, then so is Josh Frydenberg right now. That would leave the federal treasurer ineligible to sit in Australia’s parliament and cabinet during the greatest crisis in most Australians’ lifetimes.

The case of Staindl v Frydenberg is a coda to a minor crisis from simpler days. In the eight months from October 2017 to May 2018, fifteen members of the federal parliament were unseated — six of them permanently — because they were considered dual citizens under section 44 of Australia’s constitution.

At the debacle’s centre was the High Court’s October 2017 ruling that five parliamentarians, including the deputy prime minister, were never elected at all, simply because they were dual citizens. Although politicians had fallen foul of that ban before, this was the first time it was applied to Australians with no adult connection to a foreign country, including two who had no childhood connection either. Fiona Nash, for instance, was disqualified for her British nationality despite being long estranged from her Scottish father and never having been to Britain.

Alas, the national court made its ruling more in anger than sorrow. The seven justices declared that:

while it may be said that it is harsh to apply section 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question… It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable.

These are perhaps the least wise words the seven have ever written.

Frydenberg’s fate in the Court of Disputed Returns was determined by three facts: what Hungarian officials did before the Strauszes crossed the border; what documents the family carried while they crossed; and the fine details of Hungary’s citizenship law at the time. Last week’s decision revealed that neither Frydenberg nor any other Australian ever knew — or even can know — any of these things. The relevant records of Hungary’s secret police were lost in 1956 during the nation’s failed uprising against the Soviets. The Strauszes were either too young — the daughters were eight, five and one — or too old — the adults would have been 108 and 112 today — to testify as to what documents they carried. Most remarkably, Australia’s attorney-general bluntly told the Court of Disputed Returns that “the relevant content of Hungarian law in 1949 is unknowable.”

After they crossed the Iron Curtain, the Strausz family spent two weeks in Vienna, but ended up living at 11 Rue de Deux Gares in Paris’s tenth arrondissement. They were literally and metaphorically between stations. While they already held a landing permit that would allow them to stay in Australia for two years, they needed a Titre d’Identité et de Voyage that allowed them to travel internationally without a passport. Nearly a year passed before they travelled to Genoa to board the SS Surriento, bound for Fremantle and Sydney. They reached their new home on the second-last day of 1950.

Did they bring anything from their old home? The Strauszes described themselves as stateless, but a Sydney boarding officer wrote “Hungarian” as their “nationality” in a letter to immigration officials. His interest in the family’s homeland probably wasn’t idle. Australia in 1950 was awash with fears of communist infiltration via immigrants, seemingly even ones with every reason to flee Europe.

Similar irrational fears underlie section 44 of the constitution. The High Court has repeatedly identified the purpose of the ban on electing dual citizens as being “to ensure that members of the Parliament do not have split allegiance” with a foreign country.

It was the other thing the boarding officer noted in his letter — that the family were “in possession of Valid Passport” — that was especially dangerous for Josh Frydenberg. If Erica Strausz held a valid Hungarian passport in 1950, then everyone agreed that her son was ineligible to be elected in 2019. The law of Hungary, like that of so many overseas countries, bestows citizenship by descent, even to children whose parents had left their home country, took up another country’s citizenship and married a non-citizen. It is this combination of foreign countries’ generosity in bestowing citizenship and Australian constitutional law’s suspicion of the recipients of such gifts that caused last term’s debacle.

Before the election, I predicted that a perfect storm — widespread dual citizenship in Australia, the High Court’s strict ruling, the murkiness of the constitutional text and new constraints on late electoral cases — would lead to a rush of challenges immediately after Labor’s expected tight victory. But the rush (like the Labor win) never came. Instead, Frydenberg will very likely be the lone challenged member of the current parliament. His challenger, climate activist Michael Staindl, was motivated not by Frydenberg’s foreign allegiances, but rather by his political ones, and specifically his party’s climate policy.

Staindl’s challenge could proceed, despite the unknowability of what transpired seventy years ago, because any Australian politician can be unseated by uncertain facts. All that Staindl had to prove was that it was more likely than not that Erica Strausz was still a citizen of Hungary when Frydenberg was born. Because the Court of Disputed Returns isn’t bound by the rules of evidence, Staindl could rely on the border officer’s letter. But the letter wasn’t his main argument.

Instead, he argued that Erica Strausz’s continuing Hungarian citizenship was much more likely than not, because the Strauszes had no reason to renounce their citizenship and every reason not to. Staindl found a Hungarian lawyer who explained that renouncing citizenship in 1949 would have required permission from (or denunciation by) the secret police. Given that an ordinary passport (albeit probably obtained unlawfully) was needed to cross the border, telling the Hungarian police that they wanted out would be the last thing the Strauszes would have done. Nor, he added, was there any reason for them to contact the Hungarian authorities for favours after they left (oblivious as the Strauszes, like nearly everyone else, were about section 44 of their new homeland’s constitution).

Staindl’s case crawled until late last year, when the High Court of Australia sent it to the next court down in the hierarchy, over the objections of the treasurer and the attorney-general. In the Federal Court, Frydenberg produced a report from an Australian historian who had studied postwar immigration. She wrote that Australian border officials in the 1950s were more interested in new arrivals’ ethnicity than their citizenship and that “Valid Passport” was simply their shorthand for any legal travelling document, including a Titre d’Identité et de Voyage. Frydenberg’s Hungarian lawyers produced a book by Péter Bencsik, a historian specialising in mid-century central European travel documents, who wrote that the communist secret police in the late 1940s could and did issue “one-way” passports to emigrants who wanted to quit Hungary for good.

In short, the sole surviving records proved nothing either way. Staindl conceded that the Strauszes probably left Hungary with the secret police’s permission on one-way passports. But that didn’t resolve the real question: whether or not they left their citizenship behind. Instead, Frydenberg’s fate was resolved by the Federal Court contemplating what actually counts as “law” in a totalitarian state.

“I just want to say something about Josh Frydenberg”, said then prime minister Malcolm Turnbull, a week after the High Court’s 2017 decision. “Josh Frydenbergs mother Erica Strauss was born in 1943 in the Budapest ghetto. Thats where the fascists had pushed all of the Jews in together as a prelude to sending them to the gas chamber. She wasnt a Hungarian citizen when she was born and neither were her parents. You know why? The Hungarian fascist government, allied with Hitler, stripped the Jews of all of their rights. The right to citizenship and the right to life.”

But the Federal Court did not so hold. Indeed, no one asked them to.

The court’s judgement charts the grim facts of Jewish life and death in Hungary after the break-up of the Austro-Hungarian empire. First came the pogroms of the White Terror that installed an ex-admiral in power. Then, as Hungary allied with the Germans and Japanese in the second world war, came three anti-Jewish laws, imposing quotas on Jewish professionals, barring Jewish public service and criminalising sex or marriage with non-Jews. Finally, Nazi occupation brought Hitler’s Final Solution to Hungary, sending nearly half a million to Auschwitz. The Jewish population of Budapest, once almost a million, had shrunk to just 100,000 by the time the Hungarian government surrendered to the Soviets.

But Hungary had no equivalent of Hitler’s Nuremberg laws, which stripped Jews of their citizenship. And, unlike many countries (including Australia), Hungary’s various citizenship laws didn’t automatically convert into aliens people who transgressed in specified ways (by joining the enemy, for example) or took up another country’s citizenship. Rather, the communists’ laws gave Hungary exclusive control over each citizen’s citizenship. If you wanted to stop being Hungarian, you needed to ask for and get permission from the police. The government could “divest” you of your citizenship involuntarily, but only if it published that decision (and it didn’t in relation to any of the Strauszes.)

These grim facts of life in Hungary in the 1940s also cast a shadow over Frydenberg’s eligibility to be elected in Australia in the 2010s. If the Strauszes couldn’t rid themselves of their birth citizenships without Hungary’s permission, then nor could Frydenberg.

What saved the treasurer’s job was communism. Frydenberg’s Hungarian lawyers pointed to Hungary’s communist constitution, which came into force just weeks before the Strauszes departed. Cribbing heavily from Stalin’s 1936 Soviet constitution, it reinvented Hungary as a nation of “working people,” whose fundamental duties were to protect the property of the people, increase Hungary’s economic power, raise workers’ standard of living and so forth. By leaving Hungary, the lawyers posited, the Strauszes shifted from being working people to what the constitution called “enemies of the working people,” who were expressly denied the right to vote.

The very nature of the law under Communism provided Frydenberg with his best argument. Bencsik told the Federal Court that socialist legal theory has always recognised that the bureaucracy doesn’t just apply the law, it can also make the law through its own actions. This was especially so in Hungary in the 1940s and 50s, when “the published laws concerning passports and emigration, including the First and Second Citizenship Laws, were not applied consistently if at all.” The real law was what Benscik termed “pseudo law,” the practices of the secret police, Hungary’s real rulers. The “one-way” passport likely given to the Strauszes was a pseudo law, Benscik explained, legally barring them from returning to their homeland without permission.

Faced with this (literally) left-field argument, Staindl blinked again. He conceded that the Strauszes’ lack of any right of return to Hungary meant that all of the family, once they became Australian citizens and reached adulthood, were eligible to be elected to the Australian parliament. That included Erica, when she turned 18 in 1961 and when she gave birth to Josh Frydenberg in 1971. But Staindl argued that everything changed just as Frydenberg himself was turning eighteen.

That was the year, 1989, when communist governments fell across the Soviet bloc and the Iron Curtain vanished. That change also washed away the pillars of socialist law, including pseudo laws like the bar on re-entry by Hungarian emigrants. At that point, Staindl argued, the empty “shell” of Hungarian citizenship carried over the border by Erica and passed on to her son became full again, which was enough to make him a dual citizen for Australian constitutional purposes from then on.

Staindl’s argument didn’t fly. The Federal Court deemed it “imaginative” and (maybe) “appropriate in some legal contexts.” But not here. “These are not matters,” the court declared, “to be addressed using fine distinctions, metaphors or other constructs having little, or no, regard to the facts established on the evidence before us.” Staindl’s problem was that he never had the opportunity to put his “shell” theory to any expert in Hungarian law.

The Federal Court didn’t relish the prospect of having to watch sleepy witnesses testifying from Budapest via Skype, translated back and forward between Hungarian and English, and debating the niceties of socialist legal theory. Obliged by the electoral act to “be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities,” the three judges declared that written reports, including a joint one by the various Hungarian lawyers hammered together on their own in Budapest, would suffice. By the time pseudo law emerged as the most likely answer, it was too late to explore Staindl’s new theory or to try to find a footing for it in the (sometimes cryptic) reports.

In short, the court had sufficient evidence that socialist pseudo law had removed Erica Strausz’s Hungarian citizenship:

The niceties of proof of the production or issue of documents by the political police in a totalitarian state, possibly lost or destroyed in revolution (in 1956 in Hungary) or in travel (by the Strausz family in Hungary, or on the way to Vienna, to Paris, to Genoa, to Fremantle, and eventually to Sydney) can be put aside when one recognises the realities of 1949.

and no evidence that the end of that system had restored it.

“I see my journey to this place in the continuum of my family’s story,” Josh Frydenberg told parliament in his maiden speech in October 2010. He described how his father’s parents arrived from Poland “while Europe was plunging into darkness” and how his mother’s family’s “experience was different.” “Interned in the Budapest ghetto by the Hungarian fascists,” he explained, “they survived and eventually made their way through displaced persons camps to Australia.” The Strauszes ended up a “family of five crammed into a one-bedroom Bondi apartment.”

The welcome, opportunities and freedom they enjoyed, said the future treasurer, “is for me the essence of what makes Australia great.” While Samuel “punch[ed] holes in belts to eke out a living,” his middle daughter grew up to be a psychologist and marry a surgeon, and the couple eventually “settled in Kew, right in the heart of the Kooyong electorate. Never would they have dared dream that decades later, one of their own family members would represent Kooyong in the federal parliament. But in Australia anything is possible. We are only limited by our imagination.”

The future treasurer’s imagination surely never hinted that his family’s story would one day threaten to overturn the choices of Kooyong’s voters.

Frydenberg’s speech proudly noted the other luminaries who had been elected by Kooyong’s voters, including a future chief justice (John Latham, who famously dissented when the High Court struck down the law banning the Communist Party in 1951, just months after the Strauszes arrived in Sydney) and a prime minister (Robert Menzies, who famously owed his government’s 1961 re-election to Communist Party preferences — which makes Frydenberg Kooyong’s second MP to have his place in Australia’s government inadvertently saved by communists).

“I am proud of my Australian story,” Frydenberg concluded. “Decades ago in the gathering darkness of Europe, my family could never have imagined this day. But because this country is truly a land of opportunity I have been given this chance.” But he could continue sitting only because a Hungarian historian born the same year as Frydenberg was able to reveal an otherwise unknowable part of the law of that dark period to the Federal Court.

Is that all that kept Australia from losing its treasurer in the midst of this crisis? I don’t think so. Times have changed since 2017, and the High Court itself has become more creative in reading the constitution in ways that include, rather than exclude, Australians within our polity. But there are limits to what a court can do.

The only real solution to Australia’s exclusion of its many dual citizens from its parliament is to change its constitution, something that will require the support of all of the nation’s leaders. “I want to see an Australia where the only relevant consideration is the content of a person’s character,” Frydenberg told parliament in in 2010, before the “stop the boats” election but also long before Hungary’s decision — on the same day the Federal Court dismissed Staindl’s petition — to close its border with Austria for the first time since the fall of communism. •