FEDERAL COURT OF AUSTRALIA
SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH)
Staindl v Frydenberg [2020] FCAFC 41
ORDERS
IN THE FEDERAL COURT OF AUSTRALIA SITTING AS THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 354(1) OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) | ||
Applicant | ||
AND: | Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to s 358(2) of the Commonwealth Electoral Act 1918 (Cth), the petitioner be relieved from compliance with s 355(aa) of that Act.
2. The petition be dismissed.
3. The petitioner pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 These proceedings concern the election of the respondent, Mr Joshua Frydenberg, on 18 May 2019 as a member of the House of Representatives. The petitioner contends that Mr Frydenberg was not eligible to sit in Parliament by reason of s 44(i) of the Constitution because he is a citizen of the Republic of Hungary. The petitioner seeks a declaration that the place of the member for Kooyong in the House of Representatives is vacant.
2 Section 44 provides, so far as relevant:
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.
3 The proceedings were commenced by petition filed under s 353(1) of the Commonwealth Electoral Act 1918 (Cth) on 31 July 2019 and addressed to the High Court of Australia sitting as the Court of Disputed Returns.
4 The petitioner’s entitlement to sign the petition as a person who was qualified to vote in the disputed election for the purpose of s 355(c) of that Act is not challenged.
5 On 12 December 2019, a Justice of the High Court of Australia referred the petition for trial to this Court under s 354(1) of the Commonwealth Electoral Act. By s 354(2) this Court has jurisdiction to try the petition, and in respect of the petition is and has all the powers and functions of the Court of Disputed Returns.
Result
6 For the reasons that follow the petition should be dismissed with costs.
Statutory provisions
7 The jurisdiction of the Court sitting as the Court of Disputed Returns was discussed in Garbett v Liu and Yates v Frydenberg [2019] FCAFC 241 at [9]-[25].
8 By s 355(a) of the Commonwealth Electoral Act, every petition disputing an election shall set out the facts relied on to invalidate the election and, by s 355(aa) and subject to s 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief.
9 Section 358(1) provides that no proceedings shall be had on the petition unless the requirements of, relevantly, s 355 are complied with. This provision is subject to s 358(2) which provides that the Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with s 355(aa).
10 By s 355(e), every petition disputing an election shall be filed in the Registry of the High Court within 40 days after the return of the last writ for the election. In the present case, the last writ was returned on 21 June 2019.
11 By s 363A, the Court must make its decision on a petition as quickly as is reasonable in the circumstances.
12 By s 364, the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
The petition, response and reply
13 The statement of facts in the petition is in the following terms (we have numbered the paragraphs):
(1) The respondent was not eligible to sit in Parliament because of s 44(i) of the Constitution because he is a citizen of the Republic of Hungary.
(2) The respondent’s mother was a citizen of Hungary at the time of her birth pursuant to the law of Hungary. The respondent has declared that his mother was a citizen of Hungary from her birth until 1948.
(3) The respondent’s mother arrived in Australia in 1950 in possession of a valid passport, inferred to be a valid Hungarian passport. This indicates that she continued to be a citizen of Hungary after 1948.
(4) Pursuant to the law of Hungary, all children born to the respondent’s mother are a citizen of Hungary from the time of their birth and in the premise, the respondent is a citizen of Hungary.
14 By his response to the petition, Mr Frydenberg denied that he is a citizen of Hungary and that he has ever been ineligible to sit in Parliament because of s 44(i) of the Constitution; admitted the paragraph we have numbered (2); denied the paragraph we have numbered (4) and said he is a citizen only of Australia. In answer to the paragraph we have numbered (3), the respondent set out the following:
5. As to the third paragraph:
(a) admits that his mother (Erica) arrived in Australia in 1950;
(b) denies that Erica arrived in Australia in possession of a valid Hungarian passport and says further:
(i) Erica emigrated from Hungary in 1949 with her parents and siblings;
(ii) Erica emigrated most likely using a form of travel document which authorised a single exit with no right of return;
(iii) Erica otherwise had no right of return after her departure from Hungary;
(iv) after periods of time in Austria and then France, Erica arrived in Australia with her parents and siblings in 1950 on the SS Surriento, departing from Genoa, Italy;
(v) Erica’s parents possessed travel documents, covering Erica and her siblings, that were not valid Hungarian passports but rather Titre d’Identité et de Voyage issued by Le Préfet de Police (Chief of Police) in Paris, France;
(vi) Titre d’Identité et de Voyage were issued to stateless persons;
(vii) Erica entered Australia pursuant to a visa issued by the Commonwealth of Australia for a single journey to Australia;
(viii) on 8 February 1951, Erica was granted a certificate of exemption (No. 51/2058) under the Immigration Act 1901-1949 (Cth) as a stateless person;
(ix) in 1957, Erica was naturalised as an Australian citizen; and
(x) in the premises, Erica ceased to be a citizen of Hungary upon emigrating in 1949 and remained stateless until 1957, from which time she was only an Australian citizen; and
(c) in the premises, otherwise denies the paragraph.
15 By his reply, in response to paragraph 5(b), the petitioner stated:
1. The petitioner admits the allegation in (i).
2. As to the allegation in (ii), the petitioner does not know and therefore does not admit how Erica emigrated or what document she possessed, but says that there was, relevantly, no such thing as a document that authorised a single exit from Hungary with no right of return.
3. The petitioner denies the allegation in (iii).
4. The petitioner admits that Erica arrived in Australia with her parents and siblings in 1950 on the SS Surriento, and otherwise does not know whether the allegations in (iv) are true and therefore does not admit them.
5. The petitioner admits that Erica and her family were in possession of Titre d’Identite et de Voyage; and has otherwise pleaded adequately about this matter in the petition.
6. As to the allegation in (vi), the petitioner does not know and therefore does not admit the allegation, and says that even if Titre d’Identite et de Voyage were issued to persons who were thought to be “stateless”, that allegation is not probative of:
a. whether the person was a citizen of Hungary for [the] purpose of Hungarian citizenship law;
b. whether Titre d’Identite et de Voyage were issued to persons who are stateless as understood for the purpose of Hungarian citizenship law and not to any other person.
7. The petitioner admits the allegations in (vii)-(ix).
8. The petitioner denies the allegation in (x).
The petitioner’s case as it evolved up to the hearing
16 The first iteration of the case made by the petitioner (reflected in the terms of the petition) was that Mr Frydenberg’s mother, Erica, as the second daughter of Samuel and Etelka Strausz, was born a Hungarian citizen in 1943; that Erica Strausz left Hungary in 1949, with her parents and by then two sisters, under a valid Hungarian passport reflecting her continuing Hungarian citizenship; that she retained that Hungarian citizenship; and that, by Hungarian law, she passed Hungarian citizenship to her son at his birth in 1971.
17 In November 2019, evidence was filed in support of this case in the form of an expert opinion of Dr Peter Lang, an Hungarian lawyer. In a relatively short opinion, Dr Lang referred to Hungarian statutes, in particular the relevant Hungarian Citizenship Acts. Whilst acknowledging that “laws and regulations on issuing passport[s] and foreign travel were not made public” after 1945 and “applications and permits from the passport departments of the time cannot be found”, having presumably been destroyed, Dr Lang stated that he was not aware of any travel document out of Hungary in 1949 permitting a single exit with no right of return (the fact in paragraph [5(b)(ii)] of Mr Frydenberg’s response to the petition, specifically put in issue by the petitioner’s reply). Rather, his opinion was, it seems, that the emigration of the Strausz family likely occurred by an ordinary passport “issued in [an] unlawful manner” referencing ‘Bencsik Peter – “A Magyar útiokmányok története” – 1945 / 1961, page 19’: Dr Lang [5(a)].
18 This case, and Dr Lang’s evidence, was met in December 2019 by reports of three witnesses: two Hungarian lawyers, Dr György Jutasi and Dr Imre Papp, and an historian, Dr Ruth Balint, a senior lecturer at the University of New South Wales whose relevant professional interest and experience lay in the study of the displacement of people in, and migration from, Europe after the Second World War.
19 The reports of Dr Papp and Dr Jutasi were detailed and meticulous. Their opinions were drawn from consideration of the 1949 Hungarian Constitution, Hungarian constitutional history, statutes, rules and regulations, and what was referred to by Dr Bencsik and at the hearing as “pseudo-law”, being the practical and enforceable directions and policies of the political police and State authorities in the constitutional framework of Communist Hungary under the dictatorship of the proletariat whose will was represented by the views of the Communist Party as manifested in connection with emigration by the political police.
20 The views of Dr Jutasi and Dr Papp about the operation of the Hungarian legal system drew on standard works on the subject of government documentation concerning emigration and were tolerably clear: the Strausz family more than likely left Hungary on valid documents, being a single use passport and an exit permit which did not permit re-entry into Hungary. The “clear implication of [the] legal framework [in 1949] is that emigrants were not regarded as citizens”: Dr Jutasi, [9]. It is “a compelling inference that the Hungarian state, by issuing the emigrant passport and the exit permit, recognized and acknowledged that emigration in the 1948-1949 period constituted a renunciation of citizenship”: Dr Papp, [41]. By the act of crossing the border and leaving Hungary, “a loss of citizenship seems to have occurred”: Dr Papp, [41]. In 1949, emigrants were viewed by the Hungarian State as “alien citizens, essentially no different from citizens of any foreign state. Emigration in this context thus meant an automatic loss of citizenship”: Dr Jutasi, [10]. Such emigrants were regarded by the Communist Government as “class enemies of the people”: Dr Jutasi, [50].
21 Faced with this powerful evidence, the petitioner, in mid-December 2019, sought to retain another Hungarian witness, Dr Péter Bencsik, an eminent historian, whose work was focused upon Hungarian travel documentation in the 19th and 20th centuries, including the period after the Second World War. He was the author of the standard works from which Dr Lang, and Drs Papp and Jutasi, had drawn references.
22 To avoid endangering the hearing date by any delay in one side briefing a new expert, the Chief Justice permitted further evidence from Dr Bencsik on condition that he was jointly briefed by the parties to address questions each wanted asked. Dr Bencsik delivered an expert report dated 20 January 2020. The parties later sought clarification from him on certain matters, which resulted in a supplementary report dated 12 February 2020.
23 Meanwhile, on 16 December 2019, Drs Lang, Papp and Jutasi met in Budapest in order to reach agreement, to the extent possible, as to their views. The meeting included another lawyer, Dr Pákay, who had been earlier retained by the petitioner.
24 On 24 January 2020, the parties filed an agreed statement of facts. The parties agreed on the following facts (headings and footnotes omitted, original numbering). Within these agreed facts was the story of emigration of the Strausz family in the aftermath of the Second World War and the Holocaust, and at the beginning of totalitarian Communist rule in Hungary.
4. The respondent’s mother is Erica Frydenberg (nee Strausz) (Erica).
5. Erica was born in Budapest, Hungary on 5 October 1943 and is alive.
6. Erica’s parents are Samuel and Etelka (Etel) Strausz (both deceased).
…
8. The Strausz family was and is Jewish.
9. Erica was a citizen of Hungary at birth.
10. A landing permit for Australia was granted in respect of the Strausz family on 14 February 1949, prior to their departure from Hungary. It was transmitted to Mr Isaac Redelman of Bellevue Hill in Sydney.
11. The Strausz family were in possession of the landing permit for Australia prior to their arrival in Australia.
12. Erica emigrated from Hungary in or around September 1949 with her parents and sisters. The Strausz family travelled first to Austria (for 10 days) then to France before settling in Australia.
13. The Strausz family emigrated from Hungary using Hungarian travel documents known as emigrant or emigration passports (being the same thing).
14. Erica arrived in Australia with her parents and sisters on the SS Surriento, departing Genoa, Italy on 26 November 1950 and arriving in Fremantle, and then Sydney, in December 1950.
15. Erica’s parents entered Australia using Titre d’Identité et de Voyage (TIVs) issued on 24 March 1950 by Le Préfet de Police (Chief of Police) in Paris, France, which covered Erica and her sisters.
15. Erica entered Australia pursuant to a visa issued on 24 May 1950 by the Commonwealth of Australia for a single journey to Australia.
16. On 8 February 1951, Erica was granted a certificate of exemption (No. 51/2058) under the Immigration Act 1901-1949 (Cth) as a stateless person.
17. In 1957, Erica was naturalised as an Australian citizen.
18. Mr Frydenberg was born in Melbourne, Australia on 17 July 1971 as an Australian citizen and remains an Australian citizen.
19. The First Citizenship Law (No 50 of 1879) was enacted to apply from 1880.
20. The Second Citizenship Law (No 60 of 1948) was enacted to apply from 1 February 1949.
21. The First and Second Citizenship Laws provided for cessation of Hungarian citizenship by, among other means, voluntary dismissal (elbocsátás) by a relevant Minister upon the request of a citizen with no outstanding taxes, debts or criminal convictions.
22. Under both the First and Second Citizenship Laws, voluntary dismissal was available for minors on application of their legal guardian.
23. Under both the First and Second Citizenship Laws, voluntary dismissal was available regardless of whether the applicant obtained a foreign citizenship and thus could have rendered a person stateless.
24. If voluntary dismissal was sought on or before 31 January 1949, under the First Citizenship Law, the Minister of Interior was required to decide whether the applicant for voluntary dismissal met the criteria, and if the criteria were met, was required to grant voluntary dismissal.
25. If voluntary dismissal was sought on or after 1 February 1949, under the Second Citizenship Law, the Minister of Interior had discretion whether to grant voluntary dismissal, and in the case of Samuel Strausz, could not have granted voluntary dismissal without the consent of the Minister of Defence and the guardianship authority.
26. Voluntary dismissal sought on or before 31 January 1949 under the First Citizenship Law was effective only upon delivery to the applicant.
27. Voluntary dismissal sought on or after 1 February 1949 under the Second Citizenship Law was effective on the day of issuance.
30. In the period 1945-1956, the published laws concerning passports and emigration, including the First and Second Citizenship Laws, were not applied consistently if at all.
31. On 20 August 1949, the new communist Constitution was adopted in Hungary.
32. The Third Citizenship Law (No 5 of 1957) was enacted to apply from 1 October 1957. Under the Third Citizenship Law, the child of a Hungarian citizen became a Hungarian citizen upon birth.
33. The Fourth Citizenship Law (No 55 of 1993) was enacted to apply from 1 October 1993 and remains in force.
34. From 4 July 1945 to 28 December 1946, regional administrative offices were stripped of their right to issue passports and the Hungarian Minister of Interior had the sole and arbitrary discretion to grant or deny a passport.
35. From 28 December 1946 until 1948, the Budapest Chief Police Authority determined whether to issue a passport on grounds limited to special state mandated interests such as a ministerial recommendation for travel.
36. From 1948, all passport matters were assumed by the AVH (the Hungarian State Security Agency or secret or political police) and resulted in centralised and political control of issuing passports and exit permits for emigrants. Passports and travel regulation, including emigration and the consequences of emigration, was handled by a small number of bureaucrats acting on orders of a centralised and despotic political system.
37. By the Spring of 1949, the Hungarian-Austrian border was sealed and under military control. Emigration was possible only with valid travel authorisation documents.
38. One of the few available travel documents was the emigrant passport.
39. Emigrant passports were issued to Hungarian Jews between 1948 and 1949.
40. In 1949, the emigrant passport was issued to Hungarian citizens by the Hungarian government to authorise a single exit from Hungary with no right of return to Hungary.
41. Emigrants who exited Hungary using an emigrant passport, in common with foreign citizens and Hungarian citizens permanently residing abroad, were not able to travel to Hungary otherwise than with the permission of the AVH.
42. Unlike records of involuntary dismissal (or “divestment”), records of voluntary dismissal were not published.
43. There has not been found any published statement in the Gazette recording the involuntary dismissal or divestment of the Strausz family’s Hungarian citizenship.
44. TIVs were issued under the Final Act of the Intergovernmental Conference on the adoption of a travel document for Refugees and Agreement relating to the issue of a travel document to refugees who are the concern of the Intergovernmental Committee on Refugees, signed at London on 15 October 1946 (London Agreement) to “refugees who are the concern of the Intergovernmental Committee, provided that the said refugees are stateless or do not in fact enjoy the protection of any Government”.
45. A holder of a national passport was ineligible for a TIV.
46. The TIV was issued in lieu of a national passport, serving a similar function.
47. In 1950, official Australian documents used the pro forma expression “valid passport” to refer to various travel documents including documents that were not national passports.
48. In the 1950s, customs and immigration officials were concerned to identify migrants’ origins because of concerns about Soviet spies and communist sympathisers in Australia. Stateless persons were sometimes identified with their former nationality in Australian official documents.
49. In Hungarian, the term “nationality” connotes “ethnicity” while “citizenship” is a legal term. A Hungarian speaker would regard it as possible to have Hungarian “nationality” even if they had ceased to have Hungarian “citizenship”.
50. If Erica was a citizen of Hungary under Hungarian law in 1971, Mr Frydenberg became a citizen of Hungary at his birth.
51. If Mr Frydenberg was a citizen of Hungary at his birth, he remains a citizen of Hungary.
52. It is a precondition to renouncing Hungarian citizenship that a person establish to the satisfaction of the Hungarian government that they are a Hungarian citizen.
53. The Hungarian government does not currently recognise Mr Frydenberg as a citizen of Hungary or as having any rights, entitlements or obligations associated with citizenship of or allegiance to Hungary.
25 Thus, in the agreed statement of facts the petitioner agreed that the Strausz family left Hungary using an emigrant or emigration passport (as Mr Frydenberg had asserted in his response to the petition). By the joint experts’ report of the 16 December Budapest meeting, it was agreed that there was no right of an emigrant using such documentation to return to Hungary, the permission of the Ministry of the Interior being required to enter. (See Question 5 and the answers thereto in the joint experts’ report of 16 December 2019, and see [41] of the statement of agreed facts.)
26 Thus, by the time the petitioner filed his written submissions on 31 January 2020 it was clear, indeed common ground, that the case made by the terms of the petition could not be made out. The Strausz family did not leave on a Hungarian passport, but using a form of single use emigrant exit passport. The submissions of the petitioner then sought to redirect and restructure the case. In the place of reliance upon the assertion that the Strausz family used a passport reflecting the possession of Hungarian citizenship, the petitioner engaged with the nature of Hungarian law in 1949 as the source of the respondent’s mother’s status in 1949 when she left Hungary under the single use emigrant passport, being the status she passed to him on his birth in 1971. The submission was not precise or comprehensive in its articulation; it anticipated “explor[ing]” important issues with the expert witnesses about the nature of Hungarian law in 1949. In particular, this exploration was said to be in furtherance of a proposition that the rights and status of Erica Strausz (later, the respondent’s mother) as a Hungarian citizen in 1949 upon leaving Hungary should be assessed by reference to published statutes, unaffected by arbitrary exercises of power by the political police and authorities pursuant to some “pseudo-law”. So, the petitioner submitted, even though she and her family left on a single use passport and had no right of return under the administered “pseudo-law”, by the formal statutes of Hungary, Erica Strausz and all her family were still Hungarian citizens.
27 In order to avoid the unsatisfactory position of the “exploration” of such issues orally with foreign non-English speaking witnesses in cross-examination, especially since Dr Lang was not able to travel to Australia (necessitating evidence by video-link, if it was both feasible and lawful in Hungary) the Court directed the parties to put further questions in writing to any witness, including Dr Lang. Further questions were put to Dr Bencsik. This produced his supplementary report of 12 February 2020. Dr Balint provided a supplementary report also dated 12 February 2020. The parties then agreed to forego cross-examination of any witness and to rest upon the terms of the filed expert opinions, joint expert report, agreed facts and historical documents.
28 In part, no doubt, because of the terms of Dr Bencsik’s supplementary report, the forensic decision made by both the petitioner and the respondent not to cross-examine any witnesses, and the consideration of the whole of the evidence, the petitioner, through his counsel in opening on the morning of the hearing, restructured the case for the second time. This new case abandoned the proposition that the Court could not look to the “pseudo-law” and secret and arbitrary measures in Hungary in 1949 in assessing the status of the Strausz family upon leaving Hungary.
29 The petitioner accepted that, by the operation of all known and unknown Hungarian laws, both formal and practical (or de facto), upon leaving Hungary Erica Strausz had no rights of citizenship in Hungary sufficient to answer the description of citizenship for the purpose of s 44(i) of the Constitution, which she could pass to the respondent at his birth. Instead, so the petitioner submitted, her departure from Hungary left her with but a “shell” of citizenship under the Hungarian Citizenship Acts. This was, so the petitioner said, because the secret measures and powers of the Hungarian Communist State had emptied her citizenship of any substantive rights and liabilities amounting to any form of reciprocal protection and allegiance between State and citizen, leaving it a mere “shell”. This submission was premised on treating the formal or statutory law, in particular the Hungarian Citizenship Acts, as suppressed or suspended by the “pseudo-law” of secret measures. The result of combining the two types of law (in effect, the addition or superimposition of one to the other) was, so it was said, to deny to Erica Strausz, upon leaving Hungary, a status of citizenship that, if passed to Mr Frydenberg at birth, was citizenship of a foreign power for the purposes of s 44(i). Thus it was accepted that when he was born in 1971, Mr Frydenberg was not a citizen of a foreign power for the purposes of s 44(i), and was eligible (obviously when of sufficient age) to stand for election to Parliament.
30 This argument abandoned reliance on the status of the respondent’s mother as at 1949 and the respondent’s status as at 1971, these matters being the totality of the focus of the petition. What was now said, for the first time clearly (some hint having appeared in the written submissions at paras 19 and 24), was that the formal citizenship recognised by the Hungarian Citizenship Acts, which had been made an empty “shell” by the suspension of all substantive rights and liabilities by the pseudo-law of secret measures, became fully effective again in 1989, with the fall of Communism, a new constitution, the end of secret measures and arbitrary power, and the restoration of the rule of law.
31 So, the submission proceeded: Erica Strausz left Hungary with the formal status of a citizen of Hungary, but such status was so devoid of reciprocal rights and duties between putative citizen and State as not to amount to any form of allegiance or protection. This status of the empty “shell” of Hungarian citizenship was, it was said, passed to the respondent at birth. This “shell” of citizenship would not, if unchanged, disqualify him from election to Parliament by force of s 44(i). In 1989, however (so the argument ran), upon the end of Communist rule in Hungary, this empty shell became the vessel for reciprocal rights and duties between him and Hungary that sprang up or revived or ceased to be suppressed by the end of arbitrary power; and these reciprocal rights and duties amounted to a form of allegiance and protection such that his citizenship status then and henceforth was of a character as to satisfy s 44(i).
32 For the reasons that follow, the petitioner’s submission should be rejected. In short, there is no evidence to support it; it is either contrary to or unsupported by the evidence of Hungarian law as to the position of the Strausz family in 1949 upon leaving Hungary; and it depends upon assertion and metaphor made and drawn from unstated premises rooted in argument, rather than evidence.
The submissions
The petitioner
33 In his oral submissions, the petitioner accepted that in Hungary by 1949 secret regulations and decrees became common, legislative action was ignored, and ministerial decrees and instructions effectively modified the laws. He did not contest that the secret regulations comprised the law of Hungary and that they modified public laws.
34 The petitioner argued that Erica Strausz retained the status of a citizen of Hungary under the relevant Hungarian Citizenship Acts, and that there was no evidence to suggest that secret measures had withdrawn from her the status of a citizen under the Hungarian Citizenship Acts. If it were found that she had not been deprived of the status of a citizen under these public laws, then, so it was said, the end of secret measures and the restoration of status rights and the rule of law from the 1989 Constitution onwards had the effect that the suspension of practical incidents of citizenship ended. This analysis applied equally for Erica Strausz (the respondent’s mother) and for the respondent because he inherited whatever status she held under the Hungarian Citizenship Acts at the time of his birth in 1971. As the petitioner put it, it did not matter that her status as citizen of Hungary was an empty shell at that time: what mattered was that, from 1989 onwards, it was not an empty shell. But for acts of dismissal, the respondent’s mother retained the status of a Hungarian citizen under the relevant Hungarian Citizenship Acts; and the evidence did not establish dismissal.
35 For completeness, we set out what had appeared in the submissions that the petitioner filed before the hearing. As will be seen, many aspects of these submissions fell away in light of the restructured argument at the hearing.
36 The petitioner contended in writing that the critical question was one of legal status. Having the legal status of citizenship, alone, was enough to disqualify a person under s 44(i) of the Constitution. Having the rights or privileges of citizenship was a separate question. This case was, according to the petitioner’s written submissions, about the legal status of citizenship.
37 The petitioner’s original argument as summarised in the written submissions was as follows (underlining in original):
a. The respondent’s mother (Erica) was a citizen of Hungary at birth under the law of Hungary;
b. Hungarian citizenship law adopts the jus sanguinis principle (unlike English common law, which adopted the jus soli principle);
c. On the facts of this case, unless Erica ceased to hold Hungarian citizenship under the law of Hungary prior to the respondent’s birth in 1971, he became a citizen of Hungary at his birth under the law of Hungary;
d. the evidence (including as to the law of Hungary) does not show that Erica ceased to hold Hungarian citizenship under the law of Hungary (at any time); and
e. the respondent became a citizen of Hungary at his birth and was disqualified from being chosen for the seat of Kooyong under s 44(i) of the Australian Constitution.
38 The petitioner submitted that the relevant legal mechanism under the law of Hungary (and the only relevant legal mechanism) by which the Strausz family might have ceased to hold the legal status of citizens of Hungary was voluntary dismissal. Involuntary dismissal was possible, but if pursued, it would have yielded a publication in a government gazette of the fact of involuntary dismissal, and no such publication had been found. There was no suggestion of any other legal mechanism being available, the petitioner submitted.
39 There was, so the petitioner submitted, no direct evidence about whether the Strausz family undertook voluntary dismissal from their Hungarian citizenship prior to their exit from Hungary in 1949. If the family did not undertake voluntary dismissal, then, so it was said, under Hungarian law, they did not lose their Hungarian citizenship (and in consequence the respondent became a citizen of Hungary at birth).
40 The petitioner also submitted that the critical issue under s 44(i) of the Constitution was the status of a person under foreign law; and that the attitudes or practices of the powers that be from time to time in honouring a person’s citizenship status were irrelevant. The petitioner said that the arbitrary conduct of the powers that be in Hungary around the time the Strausz family left Hungary in 1949 did not mean that they lost Hungarian citizenship under the law of Hungary. The petitioner contended that it followed that Erica Strausz did not lose the legal status of citizen under the law of Hungary by dint of any such arbitrary practices, and the present rule of law-based society in Hungary would meaningfully recognise that status.
41 The petitioner argued in written submissions that the circumstances indicated that the Strausz family would not have had any need for voluntary dismissal of their citizenship and that this made it unlikely that the family would have sought dismissal, bearing in mind that it involved an onerous process and dealing with a corrupt bureaucracy. The petitioner noted that, in 1949, the Hungarian regime apparently issued emigration passports pursuant to the Hungarian Passport Act, subject to conditions to achieve a political outcome: that is, permitting travel out of Hungary but allowing return only with the consent of the powers that be (citing Dr Bencsik, [6]). That approach in respect of persons returning to Hungary was the same for émigrés as for “acknowledged” Hungarian citizens living abroad. The petitioner submitted that, at least in 1949, the Hungarian regime did not seem to have been concerned about citizenship, contrasting this with later years (referring to Dr Bencsik, [27], [40]).
42 The petitioner argued that there were other indications that the Strausz family would not have sought voluntary dismissal. He submitted that the family would not have contemplated undertaking voluntary dismissal until they became aware of the grant of the Australian landing permit (if not until receiving the landing permit). On this hypothesis, so the petitioner said, the grant of the Australian landing permit in February 1949 meant that voluntary dismissal could only have been done under the Second Citizenship Act. Further, it would have been very risky, so the petitioner submitted, for the Strausz family to voluntarily dismiss themselves from Hungarian citizenship prior to securing the legal right and practical capacity to exit Hungary; and this meant the family would not have sought voluntary dismissal until after receipt of the landing permit, emigrant passports and the exit permit. The petitioner drew attention to the expert evidence of Dr Papp (at [51]) that voluntary dismissal was at the discretion of the Minister of Interior and requiring the consent of the Minister of Defence and the guardianship authorities. He also drew attention to the risks involved at this time in engagement with corrupt officialdom in the absence of the rule of law, referring to Dr Jutasi ([40]). Noting further that the exit permit was valid for only four days (Dr Bencsik, [9], [48]), the petitioner contended that it was unrealistic to think that the family would have undertaken voluntary dismissal during this brief window of time.
43 According to the petitioner at this point of his case, there was yet a further reason why the Court should find that the Strausz family would not have undertaken voluntary dismissal. In this context, the petitioner submitted that the evidence showed that the powers that be were at pains to ensure that an emigrant passport, such as that issued to the Strausz family, did not enable a right of return to Hungary, ensuring that any return to Hungary was able to be controlled politically (referring to Dr Papp, [26]-[36]; Dr Jutasi, [16]-[23], [31], [35]-[40], [44], [48]-[49]; and Dr Bencsik, [11]-[14], [17.1], [21], [27]). The petitioner argued that if the Hungarian authorities insisted that émigrés must undertake voluntary dismissal as a condition of being allowed to emigrate, it would not have been necessary to go to such lengths to limit the validity of travel documents—an émigré who was no longer a citizen under the law of Hungary would not in any event have a right of return capable of enforcement. The petitioner submitted that it might be inferred from the evidence regarding the limited validity of travel documents that there was a need to prevent émigrés from using travel documents to exercise a right of return that was otherwise available to them (to ensure political control over those who entered Hungary). The petitioner submitted this was consistent with Dr Bencsik’s opinion (at [27]) that the Communists, at least prior to 1955, did not care much about whether émigrés lost their citizenship.
44 The petitioner argued that this inference was corroborated by the subsequent legal development, under Hungarian law, that required an emigrant passport be coupled with voluntary dismissal (referring to Dr Jutasi, [51] and Dr Bencsik, [32]). If there was an effective practice of insisting that prospective émigrés undertake voluntary dismissal prior to being issued with emigration papers (or otherwise lose their Hungarian citizenship), it would have been unnecessary to amend the public law of Hungary after 1949 (apparently, in a regular and public way) to require this to be done.
45 In his written submissions, the petitioner also submitted that the concept of “citizenship” according to the international law notion of “effective nationality” (citing Dr Jutasi, [10], [62]-[64]) was not the correct notion to apply in determining questions under s 44(i) of the Constitution. Rather, the correct notion of citizenship was to assess whether a person has the status of a citizen under the law of a foreign country, citing Re Canavan [2017] HCA 45; 263 CLR 284 at [37] and Sykes v Cleary [1992] HCA 60; 176 CLR 77 at 107, 109-112, 127-128, 131, 135. Accordingly, whether or not “effective citizenship” as regards Hungary ceased for the Strausz family in 1949 was not relevant under s 44(i) of the Constitution. The correct question, so the petitioner submitted, was whether Erica Strausz had the “legal status” of a citizen of Hungary under the law of Hungary at that time; not whether the powers that be in Hungary acted compatibly with the law. In this connection, the petitioner submitted that the facts in the Xenophon case (see Re Canavan) did not assist the respondent. The category into which Senator Xenophon fell (“British overseas citizen”) was—under British nationality law—a residual form of British nationality but was not regarded as British citizenship, even though the word “citizen” formed part of its styling. The status did not permit a right of abode, nor did it require loyalty to the United Kingdom: Re Canavan at [131]-[134]. Although the petitioner accepted that the use of the term “citizen” in the designation of a status under foreign law did not immediately conclude the inquiry under s 44(i) of the Constitution, he submitted that in this case, there was no suggestion that the law of Hungary had ever known forms of nationality or citizenship: there was only one kind of Hungarian citizen (irrespective of the actual or practical relationship between the person and the State).
The respondent
46 In written submissions filed before the hearing, the respondent submitted that his mother ceased to be a Hungarian citizen when she emigrated from Hungary in 1949 as a young child. That cessation occurred in accordance with the Hungarian law of “voluntary dismissal” (akin to renunciation) and also by independent operation of the Hungarian Constitution of 1949, excluding emigrants from the rights of Hungarian citizens. Alternatively, any formal status of “citizenship” that his mother retained after emigrating lacked the necessary incidents of citizenship for the purpose of s 44(i) of the Constitution and so did any citizenship that the respondent might have derived by descent.
47 The respondent submitted that the constitutional conception of “a citizen … of a foreign power” was a matter of Australian law, to be ascertained by construction of the Constitution. A foreign legal status did not engage s 44(i) simply because the foreign legal system denoted that status as “citizenship”. It was necessary to determine whether the rights and privileges attaching to the foreign legal status answered the description of foreign citizenship as understood within the Australian Constitution.
48 The respondent relied, in his written submissions, on what the High Court had said in Re Canavan about Senator Xenophon’s case, noting that Senator Xenophon was held not to be disqualified under s 44(i) even though he was a “British overseas citizen” under and for the purposes of British nationality law. The respondent referred to the High Court’s statement (at [124]) that it was “necessary to describe the incidents of British overseas citizenship” and to the Court’s conclusion (at [134]) that this status did “not confer the rights or privileges of a citizen as that term is generally understood”, because Senator Xenophon did not have the right to enter or reside in the United Kingdom. Senator Xenophon’s case was, so the respondent said, authority for the proposition that the right to enter and reside in a foreign country is a necessary incident of foreign citizenship for the purposes of s 44(i). The respondent argued that, contrary to the petitioner’s submissions, the holding in Senator Xenophon’s case did not depend on the peculiarity that, under British law, there were multiple forms of nationality with different legal incidents. Rather, the holding was simply that determining a person’s legal status under foreign law is a question of the substantive rights and duties and was not merely a matter of the label given to the status.
49 The respondent submitted (in writing) there were six independent bases on which the Court should find that the respondent is not a citizen of Hungary, as follows:
(a) Voluntary dismissal: his mother, Erica, ceased to be a citizen of Hungary in 1949 when she was voluntarily dismissed from citizenship under Hungarian law;
(b) 1949 Constitution: Erica was also deprived of Hungarian citizenship by the 1949 Hungarian Constitution;
(c) Xenophon analysis: Alternatively, any legal status under Hungarian law that Erica retained after emigrating in 1949 was not “citizenship” for the purposes of s 44(i) of the Constitution because of any or all of the following circumstances:
(i) she did not have a right to return to Hungary or a right to protection abroad;
(ii) any rights she did have depended upon the exercise of discretion under a system of secret, unascertainable and arbitrary laws and were therefore not rights that engaged s 44 of the Constitution; or
(iii) she was recognised as stateless by the international community;
(d) Burden of proof: If none of (a)–(c) succeed, the petitioner bore the burden of proof of the respondent’s disqualification, which he had not discharged;
(e) Impossibility of renunciation: Alternatively to (d), it was not possible for the respondent to renounce any Hungarian citizenship without first claiming that citizenship and proving that he has citizenship. Section 44(i) does not require him to take those steps, which would be incompatible with the constitutional disqualification.
The respondent also made submissions in respect of the form of the petition, which were later effectively abandoned: see [85] below.
50 In oral submissions, the respondent contended that the petitioner’s whole case came down to one sentence in a report of Dr Lang (being all of paragraph [9]) and one sentence in the joint experts’ report of 16 December 2019 (viz, the last sentence in answer to question [9]). He submitted that Dr Lang’s sentence was unexplained, unsupported by reasoning and was not to the point because it dealt only with one kind of dismissal (involuntary dismissal), and did not address the other kind relevant here (voluntary dismissal). The sentence in the joint experts’ report was at best equivocal and did not address the respondent’s, as opposed to his mother’s, position.
51 The respondent contended that, on the evidence, there was the distinct likelihood that, in emigrating from Hungary in 1949, the Strausz family was subject to a legal or practical compulsion to renounce Hungarian citizenship, or to choose to do so; and that the respondent’s mother was dismissed from or renounced her citizenship upon emigrating from Hungary in 1949. The respondent submitted that, on the evidence, it was likely that, if a Hungarian national sought to emigrate from Hungary in 1949, he or she was required to renounce Hungarian citizenship. The second possibility was voluntary dismissal under Hungarian law, that is, the Strausz family chose or elected to renounce their citizenship in emigrating from Hungary. The respondent said that this was a matter of inference from surrounding circumstances, referring to Dr Bencsik’s first report, at [15] and [26]-[27]. The respondent drew attention to the fact that Dr Bencsik was an historian, steeped in the factual circumstances that applied to the people in Hungary at the relevant time, and the manner in which, so far as it can now be ascertained, emigration operated at that time. The respondent relied on Dr Bencsik’s reasoned opinion as to why persons in a particular group, who were seeking permanently to depart the country, would likely have sought to terminate their juridical relationships with that country, given that there was an available mechanism to do so. That was, so the respondent submitted, a legitimate process of reasoning for an historian. The respondent submitted that one might readily conclude that persons in the situation of the Strausz family in 1949 would be perfectly happy to sever all relations with Hungary on emigration, bearing in mind the then recent history of what had happened to their families, their neighbours and their people in Hungary, and the persecution of Jews that, on the evidence, was continuing in Hungary after 1945.
52 Further, the respondent submitted that there was also a deal of evidence to show that the Strausz family believed after leaving Hungary that they had lost their Hungarian citizenship. The respondent observed that, under the London Agreement, there was a process of enquiry to ascertain whether a person was in fact a stateless refugee before he or she was issued with travel documents of the kind held by the Strausz family when they made their way to Australia. The Strausz family’s landing permit dated 14 February 1949, permitting them to land in Australia, described their nationality as Hungarian, and the “valid Hungarian Passport” to which it referred was the Titre d’Identité et de Voyage issued by Le Préfet de Police in Paris, under the London Agreement, as opposed to a Hungarian passport of some kind. This latter document described Mr Strausz as a refugee of Hungarian origin. An earlier document, headed AJDC Emigration Service Vienna, described Mr Strausz as a “Hungarian transient”. (The AJDC was the American Jewish Joint Distribution Committee.) On arrival in Fremantle, the first port of call after Genoa, the incoming passenger cards referred to the members of the family as stateless. Applications for registration under the Aliens Act 1947 (Cth) dated 9 January 1951 and for certificates of exemption under the Immigration Act 1901-1949 (Cth) described each family member as stateless. Contemporaneous certificates noting their Sydney address described them as stateless. Certificates of exemption were issued on the footing that they were stateless.
53 The respondent submitted that these documents, which were contemporaneous with their emigration from Hungary and their later arrival in Australia, showed that the Strausz family believed they had lost their Hungarian citizenship by the time they arrived in Australia. The respondent noted that under Hungarian law there was a mechanism by which that could occur. The respondent argued that, since the Hungarian State had given them an emigrant passport, regarded them as class traitors and wanted them gone, and since the Strausz family likely had every reason to sever their ties with the Hungarian State, it was a ready inference that, on the balance of probabilities, this was exactly what they did. The respondent further contended that none of the experts suggested that there was any practical difficulty confronting an emigrant who had been given permission permanently to emigrate from Hungary in 1949 to renounce Hungarian citizenship; and indeed the tenor of the evidence was to the contrary. In this context, the respondent referred to Dr Bencsik’s expert opinion that emigration in 1949 constituted a loss of citizenship.
54 The respondent submitted that, as a matter of Hungarian law, the legal effect of emigration from Hungary in 1949 was the loss of Hungarian citizenship. The respondent relied on the evidence about Hungarian law in Dr Jutasi’s report at [9]-[10]. This evidence was to the effect that emigrants from Hungary in 1949 were not regarded by the Hungarian State as citizens and emigration in that context meant an automatic loss of citizenship. Relying particularly on Dr Jutasi’s report, the respondent said that an applicant for an emigrant passport who sought to leave Hungary permanently also sought to sever all ties with the Hungarian State; and that this decision was mirrored by the Hungarian State. The respondent submitted that, as a matter of Hungarian law, these facts collectively comprised a legally equivalent act to the acceptance by the State of a voluntary dismissal or renunciation. Therefore, so the respondent submitted, the fact that the Strausz family received an emigrant passport (or passports) meant that their Hungarian citizenship ceased to exist. Relying on Dr Jutasi (at [50]), the respondent noted that in 1949 the emigrants who left and were branded as class enemies of the people were emigrants who left lawfully. Referring to Dr Jutasi’s own opinion as stated at [64] of his report, the respondent submitted that the formalist status view of citizenship was no longer deemed relevant by contemporary legal jurisprudence.
55 The respondent also relied on Dr Papp’s report, particularly at [36] and [41], arguing that Dr Papp’s expert opinion led to a compelling inference that the Hungarian State, by issuing an emigrant passport and an exit permit, recognised and acknowledged that emigration constituted a renunciation of citizenship, and that a loss of citizenship was seen to have occurred as soon as the emigrant crossed the Hungarian border.
56 As to the petitioner’s argument that the respondent’s citizenship arose from springing or no longer suppressed citizenship rights with the coming into force of the 1989 Hungarian Constitution, the respondent submitted that there was a complete absence of evidence directed to whether the enactment of the 1989 Constitution had any effect on the reciprocal rights and obligations of Hungary and the respondent. The respondent submitted that the joint experts’ report was equivocal even as regards his mother’s status and said nothing at all as to the respondent, her son.
57 In oral submissions, the respondent also augmented his submissions that the petitioner had failed to discharge his burden of proof as to the respondent’s supposed disqualification and that, in any event, there were no reasonable steps that the respondent might take to renounce any supposed Hungarian citizenship.
The Commonwealth
58 In summary, the Attorney-General of the Commonwealth intervening submitted in writing that:
4.1 Both s 355(a) and s 355(aa) of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) [were] “essential condition[s] or jurisdictional requirement[s] for the Court of Disputed Returns”. If certain facts are stated in a petition as relied upon to invalidate the election or return in accordance with s 355(a), s 358(1) does not permit the proceedings to traverse different facts. The same is true of s 355(aa), unless the Court relieves the petitioner of compliance under s 358(2);
4.2 any facts to be found by the Court are “adjudicative facts” rather than “constitutional facts”;
4.3 the petitioner bears the legal burden of proving the facts that support his allegation that the respondent is a citizen of Hungary;
4.4 those facts must be proved on the balance of probabilities, having regard to the serious consequence that may flow — constitutional disqualification from election to Parliament — if the findings were made;
4.5 the petitioner has failed to established the facts necessary to support his allegation; in particular, he has not established that Erica was a citizen of Hungary under Hungarian law at the time of the respondent’s birth in 1971 because:
4.5.1. in circumstances where part of the relevant content of Hungarian law in 1949 is unknowable, the Court cannot be satisfied that Erica did not lose her citizenship upon emigrating from Hungary in 1949; and
4.5.2 further or alternatively, even on the known content of Hungarian law in 1949, the Court should find on the balance of probabilities that Erica lost her citizenship by voluntary dismissal. Even if the Court is not prepared affirmatively to so find, the petitioner cannot discharge his burden of providing that that did not occur.
59 The Commonwealth made two broad submissions concerning the application of s 44(i). First, the content of Hungarian law in 1949 was unknowable and, therefore, the Court could not be satisfied that the respondent’s mother did not lose her citizenship upon emigrating from Hungary in 1949. Secondly, insofar as the content of Hungarian law in 1949 was known, the Court should find that the petitioner had failed to prove that the respondent’s mother did not lose her citizenship by voluntary dismissal pursuant to that law. Indeed, on the evidence, the Court could be satisfied on the balance of probabilities that she did so lose her Hungarian citizenship. On either basis, the petition should be dismissed.
The relevant historical context
60 The events and circumstances touching the lives of the Strausz family in 1949 take their place and must be understood in the context of twentieth century European history marked by war, deep ideological divides, powerful racial, religious and national bigotries and the human catastrophes that accompanied them, in particular, the Holocaust as it happened in Hungary.
61 There is no doubt that ultimately the position of the Strausz family, including the respondent’s mother, and of the respondent insofar as made relevant by the petition and the issues raised by its resolution, are to be resolved by reference to adjudicative facts by the ordinary method of proof, subject of course to the influence of s 364: that the Court shall be guided by the substantial merits and good conscience of the case, without regard to legal forms or technicalities or whether the evidence is strictly admissible. This approach permits regard to historical works to give context to the evidence, to understand the likely behaviour of people living at the time, and to appreciate the human reality of contemporaneous events that may affect the substantial merits and good conscience of the case. The evidence of the witnesses, in particular Dr Balint, spoke to the historical context, by reference to works of history.
62 The following is taken from the evidence of Dr Balint and the scholarly works to which she, as a professional historian, made reference in her reports and from parts of Dr Bencsik’s reports, in particular his supplementary report of 12 February 2020.
63 The defeat of the Austro-Hungarian Empire in the First World War and the dismemberment of Imperial Hungary by the terms of the Treaty of Trianon in 1920 brought a period of political turmoil, including the overthrow of the post-war liberal democratic government by a Soviet Republic led by Béla Kun, and in turn, its crushing by counter-revolutionary forces installing a nationalist regime led by Admiral Miklós Horthy.
64 The inter-war period began with anti-Jewish legislation and pogroms in 1919-1920. Jews were seen by some as responsible for the defeat of the Empire, and the subsequent loss of territory. The political system stabilised in the 1920s, with an authoritarian government. During the 1930s, the Hungarian regime moved closer economically and politically to Nazi Germany, in 1939 joining the German and Japanese Anti-Comintern Pact.
65 In 1938, the “first anti-Jewish law” was enacted imposing quotas on the numbers of Jews who could participate in commerce and the professions. A year later in 1939 the “second anti-Jewish law” was enacted in similar terms to Nazi German legislation. The law barred Jews from employment in government, state administration, the judiciary and school teaching, and reduced the quotas permitted in the professions and commerce. In 1941, the “third anti-Jewish law” prohibited intermarriage and sexual relations between Jews and non-Jews.
66 During the war, Hungary, an ally of Germany, maintained its formal independence. In March 1944, with the course of the war in Europe flowing against it, Germany occupied Hungary, though leaving Horthy in place as Regent and a compliant government. The Hungarian Jewish population, which had hitherto not suffered extensive deportations, now became the subject of the Final Solution led by Adolf Eichmann, administered with the active co-operation of the Hungarian authorities. This saw the deportation of hundreds of thousands of Hungarian Jews from ghettos that had been set up around the country. From March to July 1944 some 437,000 Hungarian Jews were sent to Auschwitz. By July, few remained outside Budapest. In July, Admiral Horthy, facing public threats of charges of war crimes by Allied leaders, suspended the deportations. In October 1944, with the worsening of the war and Horthy negotiating with nearby Soviet forces, German forces effected a coup d’état, removing Horthy and installing in his place Ferenc Szálasi, the leader of the Hungarian fascist Arrow Cross Party. From October 1944, the Arrow Cross regime resumed persecution of Jews in the form of massacres and arbitrary terror in Budapest, deportations and forced labour. By December 1944, Budapest was under siege by Soviet forces. By early February 1945 the city surrendered to Soviet forces. Some more than 100,000 Jews, including the Strausz family, remained alive in Budapest at the time of surrender of the city.
67 During 1945, over 80,000 Jews returned to Hungary from forced labour battalions, death camps, death marches and hiding, some facing anti-Semitic violence on return. By the end of the war it is estimated that some 255,000 Hungarian Jews survived out of a population of about 825,000 living in greater Hungary in 1941.
68 In post-war Europe Hungary fell within the Soviet zone of influence, and after the collapse in 1947 of co-operation between the West and the Soviet Union, the latter’s influence over Hungary strengthened. The Hungarian Communist Party assumed power by 1947 and in 1948, the political police or “State Protection Authority” (the “AVH”) trained by the NKVD took centralised control of emigration.
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.
Consideration
The ultimate question
70 In Re Canavan the High Court made clear that the status of foreign citizenship necessary for the engagement of s 44(i) involves the conferral by a foreign power on a person of the rights and privileges generally understood to pertain to citizenship and a reciprocal obligation of allegiance owed by that person to the foreign power. The Court said, at [134]:
To observe that British overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it, is not to conclude that it is a relationship which for the purposes of s 44(i) renders the BOC [British overseas citizen] a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.
(Emphasis added.)
71 The ultimate question is whether the evidence permits the conclusion that the petitioner has proved that Mr Frydenberg 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.
72 The resolution of that question depends upon an examination of the evidence of Hungarian law and history and what it proves. Our view in summary is that not only has the petitioner failed to prove that any obligation of allegiance was at any time owed by Mr Frydenberg to Hungary, but also that the evidence is sufficient to conclude that upon leaving Hungary in 1949 the Strausz family lost or renounced any citizenship of Hungary and were stateless. There is no evidence whatsoever that somehow the political changes nearly two generations later, in 1989, had any effect upon that legal reality as it existed in and after 1949.
73 In Garbett v Liu and Yates v Frydenberg at [173] the Court said the following about onus and burden of proof:
The petitioners submitted that once it is proved that the result might have been affected the burden shifts to the respondents to demonstrate that it was not affected. Reference was made to the example of intimidation referred to by Griffith CJ in Bridge v Bowen 21 CLR at 590. In reaching a view as to whether there has been shown to be a real chance that the result was affected, the place of the burden or onus of proof and whether it shifts evidentially will depend on the nature of the illegal practice, on the character of the misrepresentation, on the circumstances surrounding the illegal practice and what is or can be proved, and who has what knowledge about those matters. Here, if there was a realistic possibility of significant numbers of people being tricked into voting for the Liberal Party by reason of the nature of the misrepresentation, questions of a shifting burden may have arisen. But as Griffith CJ said Bridge v Bowen, the evidence must at least show that the election may have been affected. Generally it can be accepted that the onus is on the petitioner to prove his or her allegations: Blundell v Vardon 4 CLR at 1468. That is not to say that the principles in Blatch v Archer (1774) 1 Cowp 63; 98 ER 963 and Jones v Dunkel (1959) 101 CLR 298 are not relevant, and in cases where an illegal practice is proved and it is of a character likely to have misled many people a court may reach a conclusion that there was a real chance the result was affected if a petitioner has proved what he or she can reasonably prove and evidence that could be brought by the respondents is absent.
74 Also relevant for present purposes is the nature of the task of the Court described in s 364 of the Commonwealth Electoral Act.
75 It may well be in a case concerning s 44(i) that a burden will shift to a respondent to prove that he or she no longer has, or that he or she has renounced, foreign citizenship. Here, however, it is not for the respondent to prove that his mother was not a citizen and that he was not a citizen of Hungary at birth. It is agreed that he was not born with a status of Hungarian citizenship that would satisfy s 44(i). In the light of this concession, the petitioner must prove that the respondent had in 1971 a status under Hungarian law of “shell” citizenship passed to him at birth by his mother and that, under Hungarian law, “shell” citizenship was a legal construct capable of revivification into full Hungarian citizenship by the political transformation of Hungary with the end of Communist rule.
76 As part of that proof, it is for the petitioner to satisfy the Court that the circumstances of the Strausz family leaving Hungary, in the context of the whole of the known and unknown law, left Erica Strausz with a “shell” of citizenship, and that there was no voluntary dismissal or necessary legal renunciation of citizenship inconsistent with the retention of any form of citizenship —whether real or full, or “shell” in nature.
77 Before considering the evidence, however, it is necessary to consider whether, given the changes in the petitioner’s case and the form of the petition, proceedings are entitled to be had on the petition.
The operation of s 355(a) and (aa) of the Commonwealth Electoral Act
78 Did the petition meet the requirements of s 355(a) and s 355(aa) of the Commonwealth Electoral Act in setting out the facts relied on to invalidate the election or return?
79 In his written submissions, the respondent contended that non-compliance with s 355(a) or s 355(aa) had the consequence that “no proceedings shall be had on the petition”, but that the Court may relieve a petitioner from compliance with s 355(aa) (but not s 355(a)): s 358. Paragraph (a) required a petitioner to set out facts from which, if proved, it might be concluded that the return was invalid, while paragraph (aa) required petitions to be “more specific”: see Sykes v Australian Electoral Commission [1993] HCA 36; 115 ALR 645 at fn 7 (Dawson J). While the petition in this case alleged that the respondent is a citizen of Hungary, the respondent submitted that it failed to do so with sufficient particularity to identify the specific matter or matters on which the petitioner relied. In written submissions, the respondent submitted that, having regard to the repeated revisions in the petitioner’s case as each different thesis had been negatived by the evidence, the Court should refuse any application by the petitioner to relieve him from compliance with s 355(aa), and apply s 358(1) to dismiss the petition.
80 The Attorney-General submitted that both s 355(a) and s 355(aa) were “essential condition[s] or jurisdictional requirement[s] for the Court of Disputed Returns”: citing Rudolphy v Lightfoot [1999] HCA 61; 197 CLR 500 at [10]. That followed from s 358(1), which relevantly provided that “no proceedings shall be had on the petition unless the requirements of sections 355 … are complied with”. As the High Court explained, s 358(1) “does not give rise merely to a defence of non-compliance which may be waived by a respondent to the petition or displaced by relief given by the Court of Disputed Returns”.
81 The Attorney-General drew attention to s 358(3) which provided that the Court should not relieve the petitioner wholly or in part from compliance with s 355(aa) unless the Court was satisfied that:
(a) in spite of the failure of the petition to comply with paragraph 355(aa), the petition sufficiently identifies the specific matters on which the petitioner relies; and
(b) the grant of relief would not unreasonably prejudice the interests of another party to the petition.
82 The Attorney-General submitted that the facts which s 355(a) required to be set out were the “essential facts from which, if proved, it might be concluded that the election or return was invalid”: Sykes at 648. Those facts “must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity”: Sykes at 649. It was against that background that Dawson J said in Sykes at 648:
… it appears that under par.(a) the essential facts may be stated with a degree of generality and it is par.(aa) which requires sufficient particularity to identify the specific matter or matters relied on.
83 The resolution of the issue directed attention to whether the reference in the petition to the arrival by the respondent’s mother in Australia in 1950 in possession of a valid Hungarian passport was to be understood as a more particular statement of a fact relied upon to invalidate the respondent’s election of the kind required by s 355(aa), or whether instead the more particular fact of this kind was only that the respondent’s mother retained her Hungarian citizenship after leaving Hungary. On the former view, the petitioner required relief under s 358(2); on the latter view, the petitioner did not. This was a question to be resolved by reference to “the terms of the petition itself as a matter of construction”: Gunter v Hollingworth [2002] FCA 943 at [28] (Cooper J).
84 The petitioner filed, by leave granted in the course of the hearing, an interlocutory application and supporting affidavit of Ms Vanessa Elizabeth Bleyer sworn 17 February 2020 concerning the history of the proceedings. The interlocutory order sought was that the petitioner be relieved from compliance with s 355(aa). This was in a sense a precautionary measure because the petitioner adopted the submissions of the Attorney-General on the operation of s 355(aa) and submitted, first, that there had not been non-compliance with the provision. The petitioner submitted that the paragraph we have numbered (3) in the petition (see [13] above) did not have any limiting effect on the other two facts (in the paragraphs numbered (2) and (4)) and that those facts were an adequate pleading because in relation to a citizenship case there was not much more to it than to plead that a person is a citizen of a foreign power and how that person became a citizen of a foreign power. If, however, this submission was not accepted and relief from compliance with s 355(aa) was needed, then the petitioner sought that relief.
85 Ultimately, the respondent’s position was that if an application for relief was made, it would not be opposed by him.
86 In our opinion, addressing the s 355(a) issue, the petition did set out the facts relied on to invalidate the election as the petition alleged facts which would bring the respondent within s 44(i) of the Constitution. The petition may be read as alleging that the respondent is “incapable” of sitting as a member of the House of Representatives because he is a citizen of a foreign power, the Republic of Hungary. If it were proved that the respondent was a citizen of the Republic of Hungary it might be concluded that the respondent was incapable of sitting as a member: see Sykes at 648.
87 The second issue is whether the petition met the requirements of s 355(aa) in setting out the facts (relied on to invalidate the election) with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief.
88 In our opinion, the petition did not set out the facts relied on to invalidate the election with sufficient particularity because there was a substantial disconformity between the facts set out in the petition and the facts ultimately relied on by the petitioner. For example, a central fact in the petition to connect the period from 1948 to 1971 was that the respondent’s mother arrived in Australia in 1950 in possession of a valid Hungarian passport, this indicating that she continued to be a citizen of Hungary after 1948. But that position became unsustainable by no later than the date of the statement of agreed facts. We have set out above the specific matters ultimately relied on by the petitioner in the course of the hearing. These were not discernible from the facts set out in the petition.
89 It follows that the petitioner requires to be relieved from compliance with s 355(aa). As we have noted, this exercise of the Court’s discretion is subject to the terms of s 358(3).
90 The Court is satisfied that the grant of relief under s 358(2) would not unreasonably prejudice the interests of the respondent as the respondent asserted no such prejudice: see s 358(3)(b).
91 More difficult is the other gateway issue, which arises under s 358(3)(a). That provision prohibits the Court granting relief under s 358(2) unless it is satisfied that in spite of the failure of the petition to comply with s 355(aa), the petition “sufficiently identifies the specific matters on which the petitioner relies”. The language is reflective of the terms of s 355(aa). The basis of the relieving provision appears to be that the specific matters on which the petitioner relies are not identified with sufficient particularity to identify the specific matters, because otherwise no relief from the requirements of s 355(aa) would be necessary, but are nonetheless sufficiently identified.
92 In the present case, no unfairness, whether substantial or procedural, is relied on by the respondent. The respondent does not submit that he could not identify the specific matters on which the petitioner relies as justifying the grant of relief. No doubt the evidence before the Court of the relevant foreign law and of the circumstances of the Strausz family’s departure from Hungary was very different from that available to the petitioner when the petition was filed and therefore the contentions were also very different.
93 Much depends on the level of abstraction at which the point is put. That the evidence is quite different does not necessarily mean that the Court may not be satisfied in terms of s 358(3)(a).
94 We are satisfied that the petition did sufficiently identify the specific matters on which the petitioner relies, those essential matters being that: the respondent’s mother was born in Hungary and was at birth a citizen of Hungary, she remained a citizen of Hungary on emigration from that country and on immigration to Australia and that the respondent at birth took his mother’s citizenship. The essential matter in controversy was whether the respondent’s mother continued to be a citizen of Hungary after 1948. The petitioner’s contention that the respondent’s mother did so continue was a specific matter sufficiently identified in the petition.
95 This leaves for consideration the Court’s discretion under s 358(2). As we have said, the grant of relief under s 358(2) was not ultimately opposed by the respondent. This is an important consideration. We would exercise the discretion in favour of the petitioner in the interests of certainty so that, rather than the matter going off on a threshold point, both the petitioner and the respondent will know as a matter of substance what their respective positions are. Were it otherwise, the same or a similar challenge might be made in the future to the capability of the respondent to be chosen or to sit.
96 If the Court were minded so to relieve the petitioner, no terms on which the Court should relieve the petitioner were suggested by the respondent. We impose no such terms.
97 We relieve the petitioner from compliance with s 355(aa).
98 For these reasons, in accordance with s 358, proceedings may be had on the petition.
The evidence
99 It is important to appreciate that no witness was directed to or asked to deal with the argument finally propounded in submissions by the petitioner at the hearing.
Dr Lang
100 As referred to previously, Dr Lang’s view (as stated in his report) was that the family could only have left on a passport reflecting the holding (and retaining) of citizenship. He knew of no single exit and no right of return travel document. That opinion was swept away by the agreed fact that the family left on such documents (namely, emigrant or emigration passports, the nature of which was not ultimately disputed: see [135] below).
101 The only other reliance placed on Dr Lang’s report was his tracing of the history of the public statutes on citizenship, and the possibility of voluntary and involuntary dismissal.
102 One must turn to Drs Papp, Jutasi and Bencsik (in the context of the experts’ agreed position) and the agreed facts to understand the legal position of the family.
Dr Jutasi
103 The primary question asked of Dr Jutasi was whether Mr Frydenberg was ever a Hungarian citizen. That question was asked based on Hungarian law and regulations as implemented or applied “including in respect of those Hungarian laws and regulations which purport to restore citizenship to persons of Hungarian origin”.
104 Dr Jutasi’s views were clear as he summarised them at paras 2 and 4 of his report:
Based on Hungarian laws and regulations in effect, as implemented or applied at the relevant times, Mr. Frydenberg is not and has never been a Hungarian citizen. He is not, and has never been entitled to exercise the rights, entitlements or privileges of Hungarian citizens, nor was he subject to any of the obligations imposed on Hungarian citizens.
…
There is no law at present, and there has never been any Hungarian law or regulation in the past, that could have automatically restored the citizenship of Mr. Frydenberg, that is without his personal declaration, and thus deem him a Hungarian citizen effective from his birth without his consent.
105 Dr Jutasi agreed with Dr Papp’s opinion. In that concurrence at para 8 of report he said:
I share the conclusion of the Papp Opinion that in the case of Etelka and Samuel Strausz the possibility of voluntary dismissal or renunciation of citizenship (elbocsátás in Hungarian) having occurred cannot be excluded as a possible outcome, which would have resulted in a loss of Hungarian citizenship for them and their children upon their departure from Hungary.
106 He then opined at paras 9 and 10:
However, whether Etelka and Samuel Strausz obtained a voluntary dismissal certificate that cannot be presented in the Proceeding, or if the Hungarian state cannot conclusively establish based on their records whether or not such a certificate was issued for the family, is not dispositive. The new communist Constitution of 1949, which entered into force on 1949 August 20 excluded emigrants from any of the declared rights of citizens, and these emigrants were also exempted from the performance of citizens’ obligations. The clear implication of this legal framework is that emigrants were not regarded as citizens. Subsequent Hungarian travel regulations until the late 1970s lend credence to the conclusion that the issuance of emigration passports and ensuing emigration resulted in loss of Hungarian citizenship.
Assuming citizenship means a legal relationship between the person and the state whereby each party has mutual rights and obligations, then as a result of emigration in 1949 not even a limited application of this relationship was in effect. The Hungarian state at the time viewed emigrants as alien citizens, essentially no different from citizens of any foreign state. Emigration in this context thus meant an automatic loss of citizenship.
107 These views were the subject of elaboration at paras 61-65 of his report. Paragraph 61 contained the germ of the petitioner’s most recent argument. In it Dr Jutasi said:
For emigrants a basic question is whether their citizenship status confers a right of return to the country. But as the Constitution did not stipulate this right, a fundamental aspect of citizenship ceased to exist. The relationship between the state and the citizen was reduced to a formal concept with no content or substance: given that the emigrating “citizen” had no constitutionally declared and protected rights whatsoever – such as the right to obtain protection abroad or to return – then his/her citizenship status became effectively meaningless.
108 In paras 62 and 63 Dr Jutasi discussed the notion of citizenship status without rights. He said:
This citizenship concept assumes that there must be a living relationship between the state and its citizen, which creates mutual rights, privileges and obligations. The termination of citizenship means, in turn, that the rights, privileges and obligations likewise cease to exist.
Undoubtedly there exists a legal interpretation that posits that rights, privileges and obligations are important but not necessary components of citizenship, and thus their absence does not result in the termination of citizenship. This conception therefore suggests that citizenship is a kind of status inherited at birth, which exists independently of its content, irrespective of whether it is filled with meaningful and living substance, such as basic rights or obligations. But if this thesis is accepted, namely that citizenship may establish a link between the state and its citizen even in the absence of citizen rights, privileges and obligations, then it cannot be determined whether any aspect or content of this relationship may be enforced, or with respect to which accountability can be demanded by one or the other party.
109 Dr Jutasi was, however, not directing himself to the notion of a “shell” of citizenship, capable of revivification, but to the question of status in 1949. He went on to make this clear at paras 64 and 65 where he expressed an unqualified view:
The Expert Opinion posits that this formalist status view of citizenship is no longer deemed relevant by contemporary legal jurisprudence, and that the prevailing view requires a real and substantive relationship to exist between the citizen and then state.
…
The legal effects of voluntary dismissal/renunciation of citizenship under Hungarian law applied not just to the applicant, but to the immediate family of the applicant, including both minor age and adult children. If one accepts any of the following that:
(i) Samuel and Etel Strausz requested their voluntary dismissal (elbocsátás) at the time of their application for their emigrant passport, but such documents cannot be found in the records of the Hungarian state, or
(ii) irrespective of their actions, the issuance of the emigrant passport amounted to an implicit acknowledgment by the Hungarian state in the given political context that such circumstance resulted in the loss of citizenship, or
(iii) irrespective of the foregoing, the 1949 Constitution curtailed the constitutional rights of emigrants to such an extent that resulted in the elimination of their right to return,
then no other reasonable conclusion may be inferred that the citizenship of Samuel and Etel Strausz ceased to exist in 1949 September when they left Hungary. Such a loss of citizenship automatically extended to all of their children, irrespective whether they were minors or of adult age, including of course Erica as well[.]
110 Though Dr Jutasi was not directing himself to the terms of the argument finally put by the petitioner, the views that he did express are directly contrary to any existence of some shell of rights able to revive decades later with the fall of Communism.
111 Earlier in the report, at para 16 Dr Jutasi had agreed with Dr Papp that the rules, instructions and considerations used by the AVH to regulate passports are not known, as most or all of the records were destroyed in the 1956 Hungarian Revolution. He stated:
It is also important to note that during this period, many rules and regulations were declared and given effect without publication and that numerous older laws and regulations appear de jure valid were de facto ignored as the authorities followed secret directives and political instructions.
112 From 1949, in totalitarian Hungary, travel abroad was controlled by the AVH, the political police. In discussing the curtailment of foreign travel and the political nature of emigration, Dr Jutasi expressed (at paras 22, 23, 32 and 33) the clear view of the consequences of a choice to emigrate:
That is, during this period of mass emigration the Hungarian state effectively regarded the decision of an individual to emigrate as tantamount to declaration of his/her intent to terminate his/her citizenship ties, irrespective of whether or not such decision was possibly memorialized in the form mandated under the old laws formally still in effect.
It is possible that no single formal declaration of voluntary dismissal/renunciation (elbocsátás) may be found in the present case, but this does not alter the historical and legal fact that the consequence of emigration was the loss of citizenship rights, and a corresponding decision by the state not to enforce the citizenship obligations against the emigrants.
…
People who left Hungary on an emigrant passport lost all indicia of citizenship – not even the most fundamental, the right of return – was guaranteed. An emigrant had no rights, no privileges of any kind, nor was he/she subject to any of the (onerous) citizenship obligations imposed on Hungarians within the borders of the country.
Emigrants leaving Hungary had no rights or privileges whatsoever – not even to return – but were also excused from performing any of the citizenship obligations. Their relationship with the Hungarian state ceased permanently, and effectively and functionally resulted in a loss of citizenship.
113 Once again, these paragraphs are directly contrary to the final argument of the petitioner.
114 Dr Jutasi also discussed the effect of the absence of documentation on the ability to draw conclusions about citizenship status. He said, at paras 43 to 45:
The historical fact that the regulations and processes on the basis of which emigrant passports were issued in the 1948-1949 period cannot be reconstituted does not mean that any expert can state that the Hungarian authorities only followed the provisions of Act II of 1909 (Emigration Act) in issuing travel documents for emigrants.
This means, then, that a historical/legal contextual interpretation of the prevailing laws and their apparent implementation is needed: when so viewed, the compelling conclusion is that an applicant for an emigrant passport sought to leave Hungary permanently, sever [sic] all ties with Hungary, a decision mirrored by the state in declaring that the emigrant had no right to return.
These facts collectively – the issuance of passport with no right of return and the collection of travel documents at the border (and subsequent requirement of applying for entry visa, if ever returning) comprised a legally equivalent act to the signing and accepting of a voluntary dismissal/renunciation (elbocsátás) request, a right granted under the laws still in effect.
115 Once again, this evidence suggested the end to the status and relationship of citizenship; not to some legal hiatus awaiting the (unforeseeable) contingency of the fall of communism.
116 At para 47, Dr Jutasi noted that in later years (after 1949) the issue of an emigrant passport was conditional on voluntary renunciation and that this more likely formalised what had been the practical reality beforehand. The petitioner submitted that this was mere speculation and that the formalisation can be seen as a change: that in 1949 voluntary renunciation was not necessary to emigrate, but became necessary in later years. Based, in particular, on paras 48-52 of Dr Jutasi’s report, we accept as the better view the following statements, in paras 48 and 52, that the likelihood was that by the operation of rules and decrees of the AVH in 1949 voluntary dismissal or renunciation of citizenship was necessary to emigrate.
Based on the process of issuance of emigrant passport and the manner of their application, to the extent it can be reconstructed from historical sources, especially when viewed in the light of the 1949 Constitution, no other reasonable conclusion can be inferred than that an applicant upon requesting the emigrant passport indicated his/her desire to revoke his/her citizenship…
…
But if loss of Hungarian citizenship upon emigration was statutorily mandated in an era of political liberalization in Hungary, then it is perplexing to suggest that the vastly more politically oppressive period of the late 1940s would have maintained a permissive approach to the ability of an emigrant to retain Hungarian citizenship. It seems more plausible to suggest that the statutory regime of passport regulations from 1961 built upon the practice of the earlier political period in treating emigrants as no longer Hungarian citizens until the 1978 liberalization era, in which dual citizenship is recognized for the first time and an emigrant status no longer perforce required the renunciation of Hungarian citizenship.
(Emphasis added.)
117 Whilst recognising in para 49 that there was no record of a regulation to the effect that voluntary dismissal or renunciation was necessary to emigrate, Dr Jutasi states the effect of the authoritarian rule-making as follows:
There is no known legal regulation in effect in 1949 stating that a requirement for issuing an emigrant passport was evidence by the applicant of renunciation of citizenship. Nor is there any regulation expressly stating that the receipt of an emigrant passport automatically terminates citizenship status for the passport holder. However, as noted above, the publicly decreed laws and regulations comprise only one part of the emigrant passport regulation of the era, and in a period where rule of law was absent and hierarchy of legal regulations were not deemed important and secret regulations existed, no one can state with certainty whether or not secret regulations applied to sever Hungarian citizenship of emigrants.
118 The last sentence of para 49 does not undermine his clear conclusions elsewhere. This is reinforced by what he said at para 50:
But, in any event, people who left on emigrant passports in 1949 had no right of return and required entry visa, if seeking return on any basis, which permit the authorities had discretion to provide or withhold. In fact, emigrants who left between 1949 and 1956 lawfully were branded as “class enemies of the people.”
119 It is in this context that Dr Jutasi’s views in paras 61-65 set out above were expressed.
120 No question was directly put to Dr Jutasi about any revivifying effects of the end of totalitarianism in Hungary in 1989. But in any event, such a theory of revivification would be in the teeth of his evidence. Dr Jutasi did not describe a shell of rights capable of revival. He concluded that any right of citizenship in 1949 was destroyed or ceased, and that it is likely that voluntary renunciation or dismissal was required to emigrate or that the process of emigration was taken to be voluntary renunciation. There is no reason not to accept that opinion.
Dr Papp
121 Dr Papp gave evidence that after 1945 (and especially in 1945-1956) relevant passport and emigration statutes were “overwritten” by unpublished regulations and secret decrees.
122 In his discussion of emigration and its relationships with the regulation of passports Dr Papp was clear as to the lack of a right to return, saying at para 36:
The changing purpose of emigration and the manner in which passports were issued during the 1945-1949 period expressed the will of the Hungarian state not to allow emigrants to return. Emigrants were issued with a single use passport, which passport did not authorize them to reenter Hungary upon their departure. In his work Krisztián Som makes the same conclusion when stating that the Hungarian Communist Party did not permit an emigrant to return.
123 Notwithstanding the lack of records, Dr Papp was prepared to express the view, with some clarity, as to loss of citizenship by emigration, saying at para 41:
Accordingly – although there is no available legislation, due to the fact that the passport regulations for this era were unavailable for the public, and were never published and subsequently disappeared –, it is a compelling inference that the Hungarian state, by issuing the emigrant passport and the exit permit, recognized and acknowledged that emigration in the 1948-1949 period constituted a renunciation of citizenship. Given that no rights were conferred and no obligations of any kind were imposed on a person leaving, although it is difficult to corroborate it, because of the lack of available legislation, a loss of citizenship seems to have occurred as soon as the emigrant left the border of Hungary.
Dr Bencsik
124 Dr Bencsik is an historian with a special interest in travel documents.
125 At para 5 of his first report, Dr Bencsik noted the dominance of Soviet Russian control from 1945 and that with the regaining of formal sovereignty by Hungary in 1947 Hungarian Communist rule was almost complete, with Soviet control continuing. From 1948 emigration and passport issue were centralised functions of the AVH.
126 Dr Bencsik gave detailed evidence of the single exit passport.
127 At para 21, he gave evidence (perhaps without the clarity of Dr Jutasi) as to loss of citizenship by emigration as follows:
[I]t is likely that emigration even in 1949 constituted a loss of citizenship. However, there is a possibility that this loss was not inevitable before 1955, i.e. it was neither an involuntary act or deprivation nor a compulsory renunciation of citizenship but only an optional one. I mean that it is possible that the emigrant could decide whether she or he wanted to lose her or his citizenship. From 1955, it is certain that those who received Emigration Passports have lost their Hungarian citizenship. It is certain, however, that the right of automatic return was denied for anyone who left the country with an Emigration Passport even from 1948.
128 At paras 26-27 Dr Bencsik expressed his views as to voluntary dismissal of citizenship, as follows:
Those who were emigrating absolutely legally, could still voluntarily renounce their citizenship. The Hungarian term is ‘dismissal from citizenship’ (elbocsátás). These renunciations were not published officially. It seems likely that Jews who emigrated legally from Hungary after 1945, renounced their citizenship. They were to leave permanently, seeking a new home in Palestine / Israel (or elsewhere), so there was no sense in keeping their Hungarian citizenship.
To conclude: it is very likely that emigrants, especially Jews who left the country legally were voluntarily ‘dismissed’ from Hungarian citizenship. However, some sources of the Ministry of Foreign Affairs from 1949/50 cite the 1909 Emigration Act under which emigrants retained their citizenship. The similar treatment of foreign citizens and Hungarian citizens living abroad might indicate that for the Hungarian state it was not too important whether emigrants had lost their citizenship or not; I think Communist Party leadership did not care much. At the same time, renunciation of the Hungarian citizenship could have meant a lot to emigrants, especially to Jews. Therefore, every case could have been different: a large part of emigrants was dismissed while others might have kept their citizenship. If the Strausz family had left the country in either of the above-mentioned semi-legal ways, they could (or, rather, should) have been stripped of their citizenship. However, the question of what happened to the citizenship of the Strausz family cannot be decided with certainty.
129 The supplementary report of Dr Bencsik gave further (detailed) evidence about the existence of pseudo-law.
130 Dr Bencsik gave some further evidence elaborating on loss of citizenship by emigration. At para 16 he referred to his first report (and relevantly para 21) and his earlier agreement with para 52 of Dr Jutasi’s report and concluded:
As I tried to explain, no sources are available which can prove that, but if someone gets an emigrant passport and want to leave the country permanently / forever, starting a new life – why should keep their citizenship? Loss of citizenship was not compulsory according to the Emigration Act still in force, but the conditions under the pseudo-law are unknown. But I admit (and admitted in the previous report) that it is not possible to prove (and neither to deny) that most (or all) Jews renounced their citizenship.
131 Thus Dr Bencsik’s views, though somewhat differently expressed (as an historian) to those of Dr Jutasi and Dr Papp, are clear support for the proposition that it cannot be shown that any citizenship was retained by the family.
The joint experts’ report of the 16 December 2019 Budapest meeting
132 The experts’ conferral dealt with 12 questions. Their agreements and disagreements can be relevantly summarised as follows.
133 It was agreed that in late 1948 and 1949 the AVH were in charge of issuing passports and exit permits for emigrants. In the same period there were regulations, decrees and practices by reference to which the AVH exercised its functions, but these were no longer accessible and were likely to have been destroyed.
134 It was agreed that in 1948 and 1949 there was a process of voluntary dismissal of citizenship as an available mechanism by which a child (through her parents) could cease to be a Hungarian citizen, by reference to the relevant Hungarian Citizenship Acts.
135 It was agreed that in 1949 the Hungarian authorities issued emigrant passports to, amongst others, Hungarian Jews that authorised a single exit from Hungary with no right of return.
136 In response to a question as to whether the holder of an emigrant passport who left Hungary using that passport could have returned permanently to Hungary and if so in what circumstances, Dr Jutasi and Dr Lang agreed that people who left the country using emigrant passports could only return to the territory of the country with the permission of the AVH. As to permanent return neither Dr Jutasi nor Dr Lang was able to express an opinion, but Dr Papp expressed the view that people could not return permanently even with the permission of the AVH.
137 There was a specific question as to the consequences of emigrating from Hungary in 1949 using an emigrant passport and whether this resulted in the loss of Hungarian citizenship or of an allegiance to Hungary. In answer to this question, Dr Jutasi and Dr Papp expressed the opinion that “it may have resulted in loss of citizenship” and “it may have resulted in loss of rights, entitlements, obligations associated with citizenship of or allegiance to Hungary”. Dr Lang on the other hand gave the opinion that it did not result in loss of citizenship or of such rights, entitlements, obligations associated with citizenship of or allegiance to Hungary.
138 We do not take from the terms of the agreement of Dr Jutasi and Dr Papp that they had changed in anyway their respective opinions expressed in their reports to which we have referred. We have set out above the differences in strength and clarity in the opinions of Dr Jutasi and Dr Papp and do not take the answer to this question as indicating any change to their opinions.
139 There was a direct question as to whether the application for or use of an emigrant passport in late 1948 or 1949 was treated by Hungarian authorities as constituting a request for voluntary dismissal or renunciation of citizenship for the purposes of the Citizenship Acts or at all. Dr Jutasi and Dr Papp agreed that this “could have been possible”. Dr Lang expressed a view that it was not possible. Once again we do not take the terms of the expression of agreement of Dr Jutasi and Dr Papp as amending the views they expressed in their reports.
140 It was agreed that the Hungarian Communist Constitution of 1949 did not act to deprive the respondent’s mother of her citizenship by way of involuntary dismissal.
141 It is appropriate to set out question 9 as asked of the experts and the text of the joint expert answering report since this question and answer was used by the petitioner to support his argument as to the springing into being of citizenship in 1989. The question was obliquely directed to the effect of the changes in 1989. However, as can be seen from the content of all experts’ reports there was no focus in them upon the argument of a “shell” citizenship being dormant and able to be revivified by the form of communism in 1989.
9. If Erica remained entitled to any rights against the state of Hungary, or remained subject to any obligations owed to the state of Hungary, following her emigration in 1949, what were those rights and obligations, and did they change between 1949 and 2019? If they changed, in what respects did they change?
The experts concur that there was no substantive change in regulations between 1949 and 1989, as Hungary was not a state governed by the rule of law, and legal guarantees of the rule of law were absent. They note that status rights and rule of law guarantees appear only after the 1989 Constitutional amendment.
The experts further concur that – given Erica did not stay in the territory of Hungary after 1949 September – she had no rights contained in the 1949 Constitution as the 1949 Constitution expressly limited rights to those living in Hungary and specifically guaranteed them for the so-called working people.
Citizenship rights and obligations changed between 1989 and 2019 as a result of the change in legal system and practice of [the] then Hungarian state, which may have impacted Erica Frydenberg depending whether or not she was a Hungarian citizen.
The disposition of the arguments
142 The central elements of the petitioner’s argument, as finally enunciated, rested on a conclusion that, to be valid, must derive from Hungarian law. That conclusion was that the combination of two strands of law: namely, published statute law in the form of the Hungarian Citizenship Acts and pseudo-law derived from the secret and arbitrary decrees and practices of the Hungarian Communist State, especially the AVH, effected the suppression of the citizenship status of emigrants such as the Strausz family so as to become a formal shell, which, by Hungarian law, was passed at birth from mother to child, and which by Hungarian law was revived into full citizenship with the fall of Communism.
143 The proposition required attention from witnesses conversant with Hungarian law in 1949, 1971, 1989 and indeed, up to 2019. The legal consequences in Hungary of the suppression of a statutory right of citizenship by the Communist State reflecting the will of the dictatorship of the proletariat through the Hungarian Communist Party is a question of contemporaneous Hungarian law, and so a question of fact. No witness addressed it in the terms articulated in the argument. That does not just leave a vacuum in the evidence. Both Dr Jutasi and Dr Papp addressed the overall ultimate question of the effect on citizenship of emigration in 1949 using a single exit passport. According to the evidence of Dr Jutasi this destroyed citizenship. Dr Papp’s evidence was to similar effect.
144 It is no answer to this absence of evidence to argue by unstated premise and metaphor that the correct analysis was a suppression or suspension of a statutory right, and the springing into being of the suppressed or suspended right, generations later. The operation or interaction of the will of the Communist Party, and so the dictatorship of the proletariat, upon the apparent right derived from the Citizenship Acts cannot just be assumed or postulated; such must be proved as a question of foreign law, as a question of fact. To the extent that there was any evidence that could be seen to relate to the petitioner’s argument, being the evidence of Dr Jutasi and Dr Papp, this tended to support a metaphor of loss and destruction, rather than a metaphor of suspension or suppression.
145 The importance of receiving evidence about the nature and effect of pseudo-law from secret directives of Communist party authorities, and not merely applying assumptions from the operation of a legal system based on the common law, can be seen from even a cursory examination of the nature of the Soviet concept of law. The concepts embedded within Soviet law included the subordination of the formal law to the law of the revolution through the commands of party policy: see Vyshinsky A, Revolutionary Legality (1932) at p 16 and Vyshinksy A, Judiciary of the USSR (1935) at p 32 referred to in Gsovski V, “The Soviet Concept of Law” (1938) 7 Fordham Law Review 1 at 31; and see generally, Stone J, The Province and Function of Law (Harvard University Press, 1950) at pp 654-657; Friedmann W, Legal Theory (5th ed, Columbia University Press, 1967) at pp 373-383.
146 If we may say so, the argument as to the revivification of a “shell” of citizenship is an imaginative one, displaying a creative fineness of distinction, which may be, or may have been, seen as appropriate in some legal contexts. Such an approach is inappropriate here. We are dealing with proof of a status of citizenship of those leaving totalitarian Hungary to whom those in power stated, with the authority of the ruling Communist Party: leave, as class enemies of the people, with no right of return. There is no evidence that, by contemporaneous Hungarian law, that reality of the Party will did not destroy any vestige of citizenship. Indeed, the evidence is to the contrary. Further, there was no evidence of Hungarian law that a “suppressed” or “suspended” right of citizenship (as opposed to a “destroyed” right) would, by Hungarian law, pass to Mr Frydenberg at his birth in 1971. There was evidence that Hungarian citizenship would pass from mother to son at birth. But the citizenship “right” in argument here was said to be a “shell” supressed or suspended until the end of Communism or the revival of the rule of law (if that were to occur) filled up the shell and, in so doing, changed the supposed right into a right of citizenship based on allegiance.
147 These are not matters to be addressed using fine distinctions, metaphors or other constructs having little, or no, regard to the facts established on the evidence before us. They are to be ascertained by reference to the law of Hungary in 1949, 1971, 1989 and indeed, 2019, being law, at least in 1949 and 1971, based on Communist constructs of law and right, and the effect of the will of the dictatorship of the proletariat through the will of the Communist Party on individual rights.
148 The evidence that was led was not silent on the relevant question of the status of citizenship of the Strausz family. The evidence to which we have referred permits the following conclusions. First, emigration by a single exit passport in the legal environment of 1949 (as shown by the experts’ reference to published constitutional and statutory law, as well as secret law and decree) amounted to a renunciation of citizenship by law or voluntary dismissal under Hungarian law. Secondly, to the extent that voluntary dismissal or renunciation of citizenship was a condition of emigration, as was likely, it was likely that the Strausz family did renounce or voluntarily dismiss their citizenship under Hungarian law. Thirdly, even if those factual conclusions are not accepted as correct, the petitioner has not proved that the respondent’s mother had continuing citizenship of any kind after emigrating from Hungary. The evidence led, in its totality, is insufficient to discharge the evidential burden requiring the petitioner to prove that, by Hungarian law, and contrary to the opinions of Dr Jutasi, Dr Papp and Dr Bencsik, Erica Strausz carried from 1949 to 1971 a “shell” of Hungarian citizenship, capable by the Hungarian law of 1971 of being passed to Mr Frydenberg, and capable by the Hungarian law of 1989 of revivifying into full citizenship in 1989 such that, at the time of his nomination for election to the seat of Kooyong in 2019, he was a citizen of a foreign power for the purposes of s 44(i) of the Constitution. No such evidence was led.
149 It is also unnecessary to dwell on the absence of proof of the present existence of any document to reflecting voluntary dismissal. Mr and Mrs Strausz considered themselves not to have Hungarian citizenship after they left Hungary. That is clear. Each wrote “stateless” whenever a form required a reference to citizenship after they had left Hungary. In 1949, the International Refugee Organisation, an international intergovernmental organisation, after inquiry had classified the family as stateless, as a condition of the issue of identity papers—Titre d’Identité et de Voyage issued in Paris—for travel from Europe to Australia.
150 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: a family leaves their country of birth for a hoped-for future on the other side of the world, leaving the horrors of war, arbitrary massacre, deportation, religious hatred, arbitrary power, as class enemies of the people, themselves recognising the reality (of the law if they cared to think jurisprudentially) reflected by the will of the Communist Party that they could never return to Hungary after they left.
151 In all likelihood, Mr and Mrs Strausz did all that they could to effect their leaving Hungary with their three small daughters. To the extent that some form of dismissal or renunciation of citizenship was or may have been required to emigrate, as the evidence discloses is likely, we have no doubt that they would have done what was required. We agree with the submissions of the respondent at [51] to [56] above. We accept that the reality in Hungarian law in 1949, expressed and reflected principally in the evidence of Dr Jutasi and Dr Papp, was that by leaving Hungary the Strausz family brought an end to their Hungarian citizenship.
152 It is common ground that there were no bonds of allegiance binding the Strausz family to Hungary when they left that could answer the description of citizenship for the purpose of s 44(i) when or if passed to Mr Frydenberg. There was evidence of the clearest kind from an Hungarian lawyer of standing (Dr Jutasi) that the bonds and status of citizenship were destroyed upon leaving Hungary. There was evidence from another (Dr Papp) to the same effect. We accept that evidence. There is no evidence sufficient to raise a rational possibility that citizenship was not destroyed, but only suppressed or suspended as a “shell” to be revivified (or filled with citizenship rights) by the fall of Communism.
153 In these circumstances we find the petitioner has not proved that Mr Frydenberg was a Hungarian citizen in 2019 and was not eligible to be elected to Parliament in that year. Indeed, we conclude that Mr Frydenberg has proved that he was not, and never has been, a citizen of Hungary. That conclusion is confirmed by the contemporaneous view of the current government of Hungary.
Costs
154 There are three relevant statutory provisions. Section 371 of the Commonwealth Electoral Act provides that the Court may award costs against an unsuccessful party to the petition. Section 360(1)(ix) provides that the Court’s powers include “[t]o award costs”. Section 360(4) provides that the s 360(1)(ix) power includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.
155 The petitioner submitted that the Commonwealth should pay his costs. He submitted that there was a public benefit in this case, being the clarification of the position in respect of people that lived in Communist Europe. The petitioner appears also to have submitted that if he was unsuccessful he did not seek costs from anyone.
156 The respondent sought an order that the Commonwealth pay his costs and the petitioner pay the Commonwealth the costs ordered to be paid by the Commonwealth to the respondent. The Attorney-General did not seek a costs order in his favour and submitted no costs should be ordered against him or the Commonwealth.
157 The Attorney-General submitted that there was no basis in a case of the present kind for the Commonwealth to indemnify the petitioner for the costs of the petition that had failed. What was required was some identification of a reason why it would be fair and just for the Commonwealth to bear the costs and neither party had identified a reason why this might be so in this case.
158 In our opinion the petitioner should pay the costs of the respondent. We do not consider it appropriate to order costs to be paid by the Commonwealth. There is no material before us that the petitioner is unable to meet those costs, such that it might be appropriate to make orders having the effect that the Commonwealth recover the respondent’s costs from the petitioner.
159 Hudson v Lee (No 2) [1993] HCA 58; 177 CLR 627 is therefore distinguishable as a matter of principle. In that case Gaudron J ordered the Commonwealth pay to the successful respondent his costs where the petitioner was a person of limited means, he being an invalid pensioner who had applied to be excused from compliance with a provision of the High Court Rules on the ground of financial hardship and having proceeded without the benefit of legal advice, in a way that he might reasonably have thought open to him.
160 We also distinguish Mitchell v Bailey (No 3) [2008] FCA 1029; 104 ALD 553, another decision to which the Court was referred. In that case the parties, which did not include the Commonwealth, agreed on orders that the Commonwealth pay the petitioner his costs and the first respondent’s costs and the Commonwealth, on being afforded the opportunity to be heard, did not object to the Court making those orders. Justice Tracey also referred to there being a series of novel issues, which it was necessary to resolve in the course of the proceeding and which it was necessary and desirable, in the public interest, to resolve. Those matters were as to the construction of provisions of the Commonwealth Electoral Act; the processes which should be adopted by the Court in order to deal with a petition which alleges that errors had been made by an Australian Electoral Officer in determining the formality of reserved ballot-papers; and whether the Court should engage in merits review or judicial review of decisions made by an Australian Electoral Officer under s 281 of that Act.
161 In Nile v Wood (No 2) [1988] HCA 30; 167 CLR 133, heard by Brennan, Deane and Toohey JJ, the unsuccessful petitioner sought an order that her costs (including the costs she had been ordered earlier to pay Robert Wood) be paid by the Commonwealth. The order that was made, Brennan J dissenting, was that the Commonwealth pay to the unsuccessful petitioner the amount of costs which she was required to pay to Robert Wood. The Commonwealth was not ordered to pay Mrs Nile’s own costs of the proceedings. What was referred to by Gaudron J in Hudson v Lee at 633 as “[a] somewhat wider view”, being the view taken by Deane and Toohey JJ, as opposed to the view of Brennan J, was as follows (at 143):
Section 360(4) of the Commonwealth Electoral Act 1918 (Cth) expands the Court of Disputed Returns’ power to “award costs” (s. 360(1)(ix)) by including “the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so”. This power to order costs against the Commonwealth, which is unlikely in the ordinary case to be a party to proceedings before the Court of Disputed Returns, is not constricted by reference to the principles controlling the making of an order for costs inter partes. It is a general power conferred upon the Court of Disputed Returns, in the exercise of its special jurisdiction, to order that the Commonwealth pay the costs of a party whenever the Court considers it appropriate so to do. We would not attempt to confine it by definition beyond saying that it should be exercised when considerations of what is fair and just support, on balance, an order indemnifying a party against costs which the party may have incurred in connexion with an electoral petition.
162 The Court in Garbett v Liu (No 2) [2020] FCAFC 14 at [15] preferred the approach of Deane and Toohey JJ. We also have applied this “wider view” in deciding that in the present case it is not appropriate to order that costs be paid by the Commonwealth. For completeness, we do not accept the petitioner’s submission that there was a relevant public benefit in this case: in our view the petition failed on the facts.
Conclusion and orders
163 In these circumstances, the orders of the Court should be that pursuant to s 358(2) the petitioner be relieved from compliance with s 355(aa), the petition be dismissed, and the petitioner pay the costs of the respondent.
Associate:
