Staindl v Frydenberg: a pyrrhic victory for Josh? – The evolving story

By Sandi Keane  

For over a week, we’ve been treated to a “Festival of Josh”, especially by the Murdoch Press after The Australian and the Weekend Australian Magazine launched Josh Frydenberg’s memoir: A Grateful Son.

Speculation is rife whether he’ll make another tilt at a comeback. Veteran journalist, Paul Kelly, clearly thinks it’s “Wharfie Time” for Josh, rattling off all his virtues as a potential Prime Minister – in particular praising his “sense of moral steel”.

Well then, should the former member for Kooyong be serious about duking it out again with the current member, Monique Ryan, I thought this timely update of my 2022 investigation (Staindl v Frydenberg: a pyrrhic victory for Josh?) into whether Josh Frydenberg was in breach of Section 44 was useful.

I was one of the journalists who followed the case ‘Staindl v Frydenberg’ in the Federal Court every day. When Staindl’s star witness in citizenship law from Hungary failed to turn up, it was basically over, Red Rover. The facts of the story are unpacked below in date order. I’ll leave it to you, dear reader, to decide…

Section 44 Crisis

October 2017

A constitutional crisis saw 15 Federal MPs caught by Section 44 of the Constitution. Josh Frydenberg’s name was raised. With a one-seat majority and the additional prospect of having the validity of his decisions as Minister for Environment challenged under Section 64 of the Constitution, the Liberal Party set the propaganda mills in motion.

Just to clarify the facts again under the law:

1. Under Section 44(i), candidates are disqualified if found to be “ELIGIBLE” for dual citizenship.
2. Candidates are also required to take “all reasonable steps” and “comply with foreign law”. According to specialist in constitutional law, Prof Anne Twomey, “The reasonable steps that must be taken are those required by the foreign law for renunciation of citizenship”.

2 November 2017

The Australian

“I’ve made enquiries months ago into this issue when it was first raised and it was very clear to me then, as it is now, that in order to become a Hungarian citizen, you actually have to take active steps to go through an interview process, to provide all the relevant documentation, to be considered as a Hungarian citizen. Neither of those steps were taken in my case or on my behalf,” Mr Frydenberg said.

[but Section 44 is about “eligibility” and the Hungarian Law is a two-step process. You have to apply for citizenship then renounce it.]

3 November 2017

The New Daily

“My mother came to Australia from war-torn Europe after the Holocaust, post war, and was deemed to be a stateless person,” Mr Frydenberg said.

[Let’s talk about “stateless” mothers]…

In 2019, I interviewed Greens’ Candidate Tim Hollo – also Jewish with a parent born in Budapest who left after WW2. He followed the correct twostep verification procedure. He was issued with a citizenship certificate. He then had to officially renounce said citizenship, thus receiving a second certificate signed by the President of Hungary.

The “stateless” argument that the Strausz family left Hungary in 1949 on a one way ticket thus rendering them stateless appears to be at odds with Hungarian law, specifically Law 55. The document below is of Tim Hollo’s grandmother. It is an American Jewish Joint Distribution Committee Vienna index card from 1956, on which she is identified as “stl” (stateless), former Ung.

The rules in practice in 1949 were the same as in 1957.

In an interview with the ABC back on 15 February 2019, Hollo told journalist Jake Evans:

“I had always assumed that because [the Hollos] defected, I wouldn’t be entitled to citizenship. I thought I would be struck off,” he said.

“The weird thing is in Hungary it’s kind of the opposite – they’re keen to repatriate people who fled. I automatically became Hungarian even though I didn’t know it.”

“It took me months of research to find out that I was actually automatically a Hungarian citizen, and then it took many more months, a big effort, searching for documents across the world and lawyers in Hungary to renounce that citizenship I didn’t know I had.”

We have two other similar statements. Given the popularity of EU passports, it would be safe to assume that thousands of descendants of former “stateless” Hungarian-born citizens have been taking advantage of the welcome mat proffered by the Hungarian Government. The proof is in the pudding as they say, so where does this leave Mr Frydenberg? Back in 1990, Liberal MP for Fairfax, Alex Somlyay, renounced any claim to Hungarian citizenship in the early 1990s to satisfy section 44. It’s a simple task to fill in the form from the Hungarian Embassy and follow the correct procedure, is it not?

3 November 2017

Then Prime Minister Malcolm Turnbull launched forth with a thunderous barrage of a ‑ “lynch mob witch hunt”and “Mr Frydenberg’s mother was a Holocaust survivor who was rendered stateless in the Nazi era.”

[Note: Sorry, Malcolm, Hungary never adopted Nuremberg Law which stripped Jews of their citizenship].

6 November, 2017

2GB’s Ray Hadley was one of the first to respond with his podcast headed:

‘EXCLUSIVE: Josh Frydenberg’s mother had passport on arrival in Australia’. “It appears they were not stateless,” said Hadley, on receipt of a document showing Frydenberg’s mother, Erica Strausz arrived with a valid Hungarian passport and Landing Permit signed by the Commonwealth Migration Officer. Whilst acknowledging the “Holocaust was a dreadful, dreadful piece of history”, Hadley reluctantly concluded “Mr Frydenberg has a significant problem” and called for a full audit of both sides of parliament.

But this never happened.

Playing the Race Card

11 July 2019

Enter lawyer, anti-logging, anti duck-hunting campaigner, novelist and poet, Trevor Poulton and his Team Law website.

On it, a copy of a letter dated 19 July to Prime Minister Scott Morrison stating there was a case for a Petition to the High Court backed up with an alarming array of evidence and documents. Not only did the Coalition scrape in with a one seat majority at the 2016 election with Frydenberg’s decisions as Minister challengeable but ditto for the 2019 election and his decisions as Treasurer. In a word, YIKES!

The documents exploded the myth that Frydenberg’s family had “fled the Holocaust” as claimed first by PM Turnbull then by PM Morrison. The family left Budapest for Vienna in September 1949 originally en route to Israel as emigrants.

They left under a communist regime which took over in 1945. Several of its most prominent leaders came from Jewish backgrounds including the Prime Minister at that time, Mátyás Rákosi.

Other documents included detailed Hungarian Citizenship Law. As mentioned, in Hungary, there was no equivalent of Hitler’s Nuremberg laws, which stripped Jews of their citizenship. Citizenship was inherited via jus sanguinis. (Note: Frydenberg stated his mother lost her citizenship in 1948 under the communist regime but no proof was offered.)

But here’s the irony: Poulton himself was a ticking timebomb – he’d written a book called ‘The Holocaust Denier’. Housed in the State Library, it’s about a Melbourne policeman and illuminates the danger of obsessively embracing extremist views in the search for an identity. Ends with him losing his humanity and his life. Hardly the ending an anti-Semite would concoct, one would have thought.

Read the comments to this thread @tanya_plibersek @AlboMP you are doing a great job at losing even more of your base on this. Only people happy with this are the RWNJs that don’t vote for you. I am a Sydney Labor heartland voter and the below is just a bridge too far.

16 July 2019

I was editor-in-chief at Michael West Media at the time, but ours was a business focus back then. This potential scoop was not for us. I contacted Hugh Riminton at Channel 10 recommending he interview Poulton. I warned Riminton that discrediting Poulton as an “anti-Semite” would be a piece of cake thanks to ‘The Holocaust Denier’. Unfortunately, when questioned, by Riminton on 16 July 2019, Poulton failed to get the message of the book across. Sadly, it also appeared I was the only journalist who bothered to read it.

Goaded into action, recriminations were swift. The Prime Minister responded on Channel 10 two days later about a “planned High Court challenge” calling Poulton a “Holocaust denier” and “anti-Semite”. It was disgusting but effective.

31 July 2019

Just weeks later, on 31 July 2019, Kooyong climate activist, Michael Staindl, filed his Petition against Frydenberg and the destruction of the reputations and financial livelihoods of two Australian citizens who’d never been in contact but shared a mutual concern for the planet was about to begin.

Using the race card to discredit Trevor Poulton’s damning evidence was easy. Week by week, he’d come out swinging with another bagful of what seemed unassailable facts in the form of evidence-based articles on Independent Australia which the Libs would put to fire and sword using the good old “anti-Semite” label. Staindl and Poulton were in lockstep, a tag team, they claimed as they hounded and vilified them as “anti-Semitic” and “pro-Nazi”. It sent MSM scuttling to the sidelines and cowed even the other independent media.

The “race card” worked a treat. The University of Sydney even went so far as to post the Executive Council of Australian Jewry’s (ECAJ) Report on antisemitism in Australia 2019 naming not just Trevor Poulton and Michael Staindl but Kooyong candidates Oliver Yates (Independent) and Julian Burnside (Greens) who were deemed to be in league with Staindl and Poulton!

When I spoke to veteran Jewish anti duck-hunting campaigner, Laurie Levy, he spoke highly of fellow wildlife lover and environmentalist, Trevor Poulton, who’d campaigned alongside him for seven years flying up to the Victorian wetlands scaring the bejeezus out of the ducks (and no doubt the shooters) at the start of each season.

Their public awareness campaign to end recreational shooting of native waterbirds resulted in a 90% reduction in the kill-rate, Levy said. As a Labor Party member, Levy believed Poulton got up the nose of Labor over its failure to ban duck-hunting. When asked about the “anti-Semitism” label, Levy was surprised. “I knew him well. I’d call him idealistic if anything.”

Yet we saw Morrison call Staindl “despicable” and an “anti-Semite” because he was falsely accused of working with Poulton, (who in turn has been falsely accused of being a “Holocaust denier”).

So much for the background. The continuing timeline is revealing as far as the outcome of Staindl’s case is concerned:

31 July 2019

Federal Court challenge to Treasurer Josh Frydenberg under Section 44. Petition filed by Staindl against Frydenberg in High Court and sent to Federal Court for trial.

1 August 2019

Michael Sukkar attack/smear/slander in Federal Parliament.

14 August 2019

Tim Smith attack/smear/slander in Victorian Parliament.

28 August 2019

Frydenberg served with Petition.

4 September 2019

Just days after Frydenberg was served with the Petition, I discover by chance that former Liberal Prime Minister, Tony Abbott, had flown off to  visit Budapest. Co-incidence? According to the report in The Sydney Morning Herald on 6 October 2019, Abbott gave two speeches at Danube Institute. But here’s the interesting fact: he had a private meeting with Prime Minister Viktor Orban as well as the Parliamentary State Secretary, Balazs Orban (no relation).

Abbott’s cosy relationship with the Hungarian PM is well known as is the Liberal Party’s links to the Danube Institute. Mark Higgie, Abbott’s former international affairs adviser, thereafter Australia’s ambassador to Hungary, is a senior fellow at the Danube Institute and is the Europe correspondent for Spectator Australia. Brian Loughnane sits on its international advisory board. Married to Abbott’s former chief of staff, Peta Credlin, he directed several of Abbott’s federal election campaigns. Hmm….as I was covering the above court case, I made a mental note about the timing of the visit and who Abbott met with.

11 September 2019

Andrew Bragg Attack/smear/slander in Federal Parliament.

15 November 2019

Expert witness, Dr Peter Lang (Hungarian legal expert on dual citizenship) files Expert Opinion in court stating in his expert opinion that Frydenberg was entitled to Hungarian citizenship via jus sanguinis – unless he had completed a certificate of renouncement to the President of Hungary:

1. Yes, it is the expert ‘ s opinion that Mr. Frydenberg became a Hungarian citizen with his birth on 17 July 1971 irrespective of his place of birth provided that at the time of birth Mrs. Frydenberg was still a Hungarian citizen. Ius sanguinus is applicable, therefore a Hungarian natural persons (male or female) child is Hungarian by birth.

2. If Mr. Frydenberg became a Hungarian citizen at birth, therefore we assume he was also a Hungarian citizen on 18 May 2019 provided he has not filed and successfully completed an application on renouncement to the President of Hungary. The citizenship ceases on the day when the President issues the certificate. We are not aware of such application.

3. Indeed there is a possibility for Mr. Frydenberg to renounce his Hungarian citizenship. In fact any Hungarian citizen may file a request to renounce his/her Hungarian citizenship to the President of Hungary who:

• lives abroad,
• has no permanent address in Hungary,
• has obtained a foreign citizenship,
• is not subject to a pending criminal proceeding in Hungary and
• has no tax other public debts in Hungary.

23 November 2019

Just a week later, The Australian reports that Frydenberg had received a letter signed by Minister Gergely Gulyas from the Hungarian Prime Minister’s office to say “Hungary rules out Treasurer Josh Frydenberg as citizen”. (See here). Like “the dog that didn’t bark in the night,” a close reading of the letter divulges by omission that Erica Strausz was not stripped of her Hungarian citizenship. Likewise, it references only whether there were records of Erica Strausz after her departure from Hungary in 1949 so again, by omission, fails to confirm whether there were records listing her as a Hungarian citizen prior to her departure in 1949. (cf. Poulton’s response on this.) Minister Gulyas is not qualified either to determine citizenship.

Furthermore, we know that Frydenberg obtained advice from the Hungarian Embassy back in November 2017 on the correct procedure which was to apply first for citizenship to the Office of Immigration and Nationality in Budapest. He was told again in 2019 as we heard in court.

Now let me rinse and repeat: You get a citizenship certificate first from the Hungarian Government. Then officially renounce it receiving a second certificate signed by the President of Hungary.

Why did Frydenberg feel the need to contact the Hungarian PM directly two years later? And did this have anything to do with Tony Abbott’s visit to PM Victor Orban just days after Frydenberg received the Petition?

So, given the above and the fact that the letter from Gulyas would appear to have no credence under the ‘Act LV of 1993 on Hungarian Citizenship’, was this just a politically-executed piece of hokum to breathe life into the “non-citizen” claim?

Furthermore, according to Dr Lang in his Expert Opinion:

“The period to be investigated for the expert is 1943 to 1971. It is irrelevant is Mrs Frydenberg lost her Hungarian citizenship in any way after 17 July 1971. If Mrs Frydenberg was not divested from her Hungarian citizenship, her Hungarian citizenship has not ceased, therefore at the time of Mr Frydenberg’s birth on 17 July, 1971, she remained a Hungarian citizen.” (Click here to upload Dr Lang’s full Expert Opinion.)

Interestingly, during the court case, Frydenberg’s legal team was unable to find any concrete evidence his mother had lost her citizenship.

24 November 2019

Removal of Report on antisemitism in Australia 2019 on the ECAJ and University of Sydney Law School websites and Facebook Accounts naming Trevor Poulton, Michael Staindl, Oliver Yates and Julian Burnside following Concerns Notices pursuant to the Defamation Act (Vic) by Trevor Poulton.

23 January 2020 (during court case)

Star Witness, Dr Peter Lang, writes to say he cannot attend court because of a “health status”. According to Staindl:

“On 9 February, Vanessa Bleyer from Bleyer Lawyers wrote that she hadn’t heard from Dr Lang since 5 February. No answer to her emails or phone calls.”

17 March 2020

Court’s Judgement:

Whereas the onus was on the other MPs to provide proof that they were NOT entitled to citizenship, Staindl was asked to provide proof that Frydenberg WAS.

As already stated, Hungary had no equivalent of Hitler’s Nuremberg laws, renouncing citizenship required permission from the police. The government could “divest” you of your citizenship involuntarily, but only if it published that decision. This was Dr Jutasi’s argument although there was no record that it had re the Strauszes. But with Staindl’s expert witness in Hungarian Law, Dr Peter Lang disappearing from the radar, the court decided that:

“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.”

As Jeremy Gans reported in Inside Story:

“Staindl’s problem was that he never had the opportunity to put his “shell” theory [i.e. citizenship rights revivified with the fall of Communism in 1989] to any expert in Hungarian law.”

Well, yes, Jeremy… that’s because the expert in Hungarian law had vanished and was uncontactable! So, whilst the witness for the respondent said the method of exit “may have” led to a loss of Hungarian citizenship. the petitioner’s witness had vanished. Hence, no chance to cross examine all expert witnesses.

Unsurprisingly, the court dismissed the case.

Some six months later…

I finally managed to track down the elusive Dr Peter Lang in Budapest. But he refused to tell me why he didn’t show up in Melbourne and went into hiding, saying: “I have no intention to give you more details.”

Fortunately, he was happy to give me his expert opinion over the phone, doubling down on his original opinion:

“I uphold my legal opinion and claim that no evidence was available based on which Mrs. Erica Strausz had been stripped of her Hungarian citizenship,”

To conclude:

Was the loss of the case for Staindl a pyrrhic victory for Josh? What do you, the reader, or more to the point – the voter – think? Having stood back and watched a much-loved climate hero’s reputation destroyed; labelled anti-Semitic in Federal and Victorian parliament, vilified in Newscorp media, attacked by the Prime Minister and even outed by Sydney University in its Report on antisemitism in Australia 2019 (thankfully now removed after Poulton’s defo threat), should Mr Frydenberg show the same compassion others granted him?

So, as I said, it’s over to you, dear reader, whether you think Josh Frydenberg is ELIGIBLE and hence in breach of Section 44. Personally, I couldn’t give a tinker’s cuss if our MPs are dual cits… but the law is the law. If I were in his shoes, I’d want to do Paul Kelly proud and live up to my “sense of moral steel” and get this simple paperwork sorted once and for all. There’s nothing stopping another Kooyong constituent from having another go and Josh might not be so lucky next time.

Sandi was a former editor Michael West Media, and prior to that was editor at Independent Australia. Before that she ran a highly successful business which landed her on the front cover of Personal Investment magazine. Sandi has conducted corporate investigations, principally into the CSG and media sectors. Her investigation into the anti-wind lobby and Waubra Foundation was used to support Labor’s Clean Energy Bill, thus, making it into Hansard. One of Sandi’s investigations into the CSG industry saw Santos forced to pull its TV advertising. Sandi holds a Masters degree in Journalism from the University of Melbourne. You can follow Sandi on X @jarrapin.