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Parliament chooses ‘Political Correctness’ over the Constitution – Frydenberg case
by Trevor Poulton
Australian Legal Practitioner
5 April 2019
Persistent public skepticism over Treasurer Joshua Frydenberg’s citizenship status
is looming as a constitutional crisis for the federal government
during the forthcoming 2019 Federal Election
THE oppression of discussion in the Australian federal parliament over whether the Treasurer and Liberal Party MP Josh Frydenberg is a dual citizen and ineligible to sit in the parliament illustrates that even the parliament itself has become infected with ‘Correctspeak' – language used to limit political dialogue by engendering feelings of guilt and atonement.
In late 2017, during the parliamentary eligibility crisis over dual citizenship, questions arose as to whether Frydenberg could be in breach of Section 44(i) of the Constitution of Australia (1900) on the basis of there being a real prospect that he holds Hungarian citizenship by descent. The Labor Party had initially agitated for him to be referred to the High Court but backed down.
Section 44(i) provides that: “Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or 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.”
During the crisis which extended into 2018, fifteen sitting politicians were ruled ineligible by the High Court of Australia (sitting as the Court of Disputed Returns) or resigned preemptively.
Hungarian citizenship law is based on the principles of jus sanguinis – ‘right of blood’, meaning that a person acquires Hungarian citizenship by birth from a parent who is a Hungarian citizen.
The Frydenberg family narrative is typical of European families and individuals migrating to Australia during the late 1940s. Frydenberg’s maternal grandfather and grandmother, whose surname is Strausz, were Hungarian Jewish citizens. Their birthplaces are noted on Commonwealth migration documents respectively as Mako and Budapest in Hungary. The couple produced three children, Juditha born in Budapest on 20 January 1941, Josh Frydenberg’s Mother Erika born in Budapest on 3 October 1943, and the youngest Agnes also born in Budapest on 13 May 1948.
The family departed from Europe boarding the S.S. Surriento at the Port of Genoa, Italy, and arrived in Sydney on 30 December 1950, five and a half years after the end of World War Two. Mr and Mrs Strausz signed applications for Certificates of Exemption pursuant to the Immigration Restriction Act 1901 that permitted landing rights for prohibited immigrants for an initial two year period with the potential to become naturalised. In the case of the Strausz family, like hundreds of thousands of other non-British migrants, the exemption was required under the longstanding White Australia Policy.
Migration records stored by the National Archives of Australia[i] disclose on a Medical Examination Declaration by Intending Migrant filled in by a physician in Paris on 28 February 1950 that the residential address of the Strausz family was 11 Rue des Deux Gares, Paris, France (presently the Hotel d’Amiens). Significantly, this infers it was sometime between the birth of Agnes Strausz in May 1948 and the medical examination in February 1950 that the family relocated from Budapest to Paris, which had become a departure hub for Jews preparing to travel to the newly formed state of Israel, and to other destinations such as Australia.[ii] In 1957 Josh Frydenberg’s Mother obtained Australian citizenship.
Dual citizenship provisions can be challenging as was exemplified by a number of stunned federal MPs who painfully vacated their seats. Given Frydenberg had come under scrutiny, it was proper to expect him to deliver an authoritative account as to why he was not a dual citizen. His responses, and those of supporters, however, raised more questions than they answered.
Frydenberg argued that as his Mother’s application for the Certificate of Exemption identified her nationality as ‘stateless’, she could not have been a Hungarian citizen, and this was despite a NSW Boarding Inspector’s report identifying the family’s nationality as Hungarian and noting that the family had a valid passport. In fact, a ‘stateless’ person is not simply a ‘refugee’ or ‘displaced person’, but technically is a person who is not considered as a national or citizen by any state under the operation of its law.
Evidence is yet to be produced to show that as at the time the family arrived in Australia the Hungarian government had passed laws or exercised a discretionary Ministerial Decree that would have deemed the Strausz family ‘stateless’. The categorisation can only be viewed as a personal renunciation, or a label used flexibly by the International Refugee Organisation and other organisations and authorities when issuing various certificates of identity, but having no legal force then under Hungarian citizenship law.
In fact, in terms of the political climate in Hungary in 1948, prior to the Strauszs departure from the country, “Jews were overrepresented among the new cadres, especially in the propaganda sector, in the cultural and economic sphere, in the press, and notably also in the political police.” By the late 1940s the nation’s top government leadership was predominantly Jewish, including Mátyás Rákosi, leader of Hungary's Communist Party from 1945 to 1956.[iii] ( See Cambridge University Press - Late 1940 political climate in Hungary - www.teamlaw.net.au/post-war-politics-hungary.html; Rákosi Mátyás - https://en.wikipedia.org/wiki/M%C3%A1ty%C3%A1s_R%C3%A1kosi )
It is difficult to accept on face value the ‘stateless’ claim. History does tell us that a ‘Cold War’ was budding in 1948 between the West and eastern Soviet bloc nations that witnessed a wave of political and economic post-war migrants surging out of Poland and countries such as Hungary into the diminishing displaced persons camps of Occupied Germany, Austria and Italy, as well as to privately-run migration hostels in France, where the Strauszs ended up.
The surge has been quoted by Australian historian Jayne Persian in her 2012 essay ‘Displaced persons and the politics of international categorisation(s)’ as ‘the phenomenon of “the Voting Feet"'.
It was also in the late 1940s that the Australian Government began an immigration program created to increase its population and labour force for post-war development.
Without any factual evidence to the contrary, it would seem that the family Strausz had elected to leave Hungary sometime after the birth of their youngest child in 1948 for a new life in a new world.
Revisionist political correct MPs
Regardless of the commonly understood political history of the period, on 3 November 2017 a revisionist Prime Minister Malcolm Turnbull, upon returning from a visit to Israel, was quoted in The Guardian stating, “Has this witch hunt become so absurd that people are seriously claiming that Josh Frydenberg is the citizen of a country which has stripped his mother and her family of their citizenship and would have pushed them into the gas chambers had it not been that the war was ended before they had time to do so?"[iv]
And on the same day, The Sydney Morning Herald reported Turnbull stating, “I wish that those who make these allegations could think a little deeper about the history of the Holocaust.”[v]
Prime Minister Turnbull’s public evocation of the Jewish Holocaust that took place during World War Two – a war during which 70-85 million human beings of many races, religions and creeds perished – hinted at anti-Semitic hate-speech by others.
Prime Minister Turnbull was further quoted emotively stating, “Josh Frydenberg’s Mother Erika Strausz was born in 1943 in the Budapest ghetto. That is where the fascists had pushed all the Jews in together, as a prelude to sending them to the gas chamber,” and “She wasn’t a Hungarian citizen when she was born, neither were her parents – you know why? The Hungarian fascist government, allied with Hitler, stripped Jews of all of their rights, the right to citizenship and the right to life. Her family fled Hungary at the end of the war. It was a miracle they weren’t killed as so many of their relatives were.”
According to the authoritative ‘American Jewish Year Book (1940-41)’[vi], restrictive Jewish laws had been passed by a right-wing Hungarian government in 1939 reducing Jewish citizens born in Hungary before WW1 to second class citizens, which included Frydenberg’s grandparents. However, unlike the racist 1935 Nuremberg Laws of National Socialist Germany, the Hungarian laws did not strip them of their citizenships, and the oppressive laws were soon revoked by the Hungarian government elected to power at the end of World War Two.
Further, Turnbull frivolously claimed that Erika Strausz was born in 1943 in the Budapest Ghetto, when in fact the ghetto was set up in Budapest during the final stages of World War Two from 29 November 1944 to 17 January 1945 soon after the Nazi invasion of Hungary.
No evidence has been adduced to show that the Strausz family fled Hungary in the late 1940s for fear of becoming victims of the Holocaust, or that they were being persecuted because of their ethnicity or faith, or that Frydenberg’s Mother was not a Hungarian citizen when she was born or upon arrival in Australia, or that the family had been made stateless by the Hungarian government.
Prime Minister Turnbull seemingly chose to mislead the public in early November 2017, coincidentally at a time when his government was at risk of becoming a minority government. And in fact the government did lose its parliamentary majority on 10 November 2017 after Liberal MP John Alexander became the latest casualty of the dual citizenship saga and resigned his seat.
The invocation of guilt by shaming Frydenberg’s inquisitors ideally needed to be followed up by an exhibition of public atonement to satisfy the political correct equation of guilt followed by atonement.
Rising to the occasion, on 9 November 2017 the Opposition Deputy Leader of the Australian Labor Party, Tanya Plibersek stated to The Jewish News, “These people (Strausz family), like many millions, fled the Holocaust and I really do think that we’re going a bridge too far when we start to pursue people in these circumstances.” [vii]
Ms Plibersek, particularly given her own Eastern European background, would have been capable of distinguishing the timelines of World War Two (including the Holocaust) that ended in Europe with the occupation of Germany in May 1945, and the beginnings of the cold war in 1948 that soon gave birth to a new wave of migrants coming to Australia.
On 4 December 2017 Josh Frydenberg signed a “Statement In Relation To Citizenship – 45th Parliament” – Parliamentary Citizenship Register[viii] – declaring that he had obtained expert legal and consular advice to ensure himself that he had not ‘acquired citizenship of another country by descent, marriage or other means’.
Labor Party MPs had been divided on the issue. It was reported later on 16 August 2018 in The Sydney Morning Herald in an article about the close relationship between Labor MP Ed Husic and Liberal MP Josh Frydenberg, that when others in the Labor Party suggested Frydenberg had questions to answer regarding his citizenship Ed Husic admonished them publicly, telling the members of parliament “to pull their heads in.”[ix]
In an act of collective atonement, Mark Butler MP fronted the media on behalf of the Labor Party to declare that it was not the party’s official position to pursue Josh Frydenberg.
However, the Shadow Attorney General, Mark Dreyfus MP was determined to draw Frydenberg directly back into the drama despite various Labor MPs purportedly requesting he desist.[x]
Mark Dreyfus is an Ashkenazi Jew, same as Frydenberg[xi], and as such would have felt ‘qualified’ to speak out without the risk of being accused of anti-Semitism. On 10 December 2017 he appeared on ABC Insiders to be interviewed by Barrie Cassidy.[xii] The following is an extract of that interview:
Cassidy: “If it's not a partisan debate, why did you throw Josh Frydenberg’s name into the mix? Because his Mother fled persecution in Europe? He was the son of a stateless Holocaust survivor.”
Dreyfus: “Take it from me, Barrie, I have exactly the same horror of the Holocaust in my family too, and I understand as well as anyone what that horror was. We didn't single out anybody here. I referred to some, a group of Liberal MPs, Nola Marino, Mr Falinski, Julia Banks, Alex Hawke, also Josh Frydenberg, who have not made, to our mind, adequate disclosure. If a member of the public was...”
Cassidy: “Why did you put him on that list in that context? Why not a bit of generosity and just leave him alone?”
Dreyfus: “It's about the way that the constitution operates and it's not for me to say because I'm deeply sympathetic to Josh's circumstances that the constitution shouldn't apply to him. I'm very much hoping that he can demonstrate, by just giving some of the material facts, or releasing the legal advice, that he's got nothing to be concerned about. But at the moment, his disclosure statement says nothing. It says that his Mother, who escaped the Holocaust, was born in 1943 in Hungary and that's all it says. It says that he's got legal advice but he doesn't say what it says.”
During a roundup after the interview, Barrie Cassidy relocated to the couch, and the ABC's political editor Andrew Probyn remarked:
“If you look at the spectrum of guilt, if you want to call it like that, you’ve got the four Labor MPs probably over this side so are most likely to go down. Josh Frydenberg as you pointed out he’s not on the list. Now, why wasn’t he? He wasn’t on the list because they were embarrassed by it. That was embarrassing. The first name they raised when Mark Dreyfus did his press conference was Josh Frydenberg!”
Barrie Cassidy added: ‘The law is the law, and then there’s common sense and just a bit of respect.’
The Insiders’ response of elevating Frydenberg above scrutiny, above the Commonwealth Electoral Act (1918), above the Australian Constitution, revealed a complete lack of political and ethical objectivity. In contrast, the Shadow Attorney General Mark Dreyfus was respectful and accountable in his approach.
Other mainstream media, possibly intimidated by the ABC’s strident political correct defence of Frydenberg, followed suit by dropping off on any further questioning of his citizenship status.
Frydenberg’s family narrative is in fact akin to the Liberal National Party senator for Queensland, Senator Canavan’s citizenship case which was referred to the High Court.[xiii] Senator Canavan’s maternal grandparents who were of Italian descent migrated from Europe in 1951, with both politicians’ families sailing out of the Port of Genoa but on different ships that could have almost been part of the one flotilla.
The High Court determined, after examining Italian citizenship laws back to 1912 that it was unlikely that Senator Canavan could be a dual citizen as his maternal grandparents had lost their Italian citizenship under Italian law by being naturalised during the 1950s and the family making Australia their place of residence.
However, the personal histories differ with Frydenberg’s Mother having being born in Hungary and Senator Canavan’s Mother being born in Australia, and different sets of citizenship laws applying to Hungary and Italy respectively.
Section 18(c) of the Racial Discrimination Act
On 24 August 2018 Malcolm Turnbull was ousted by his own party as Prime Minister. To date, Frydenberg has not produced the advices he had relied upon to make his declaration to the parliament. Without the right to question, what remains is indoctrination. Given farcical accounts to date and the muting of MPs who would question Frydenberg’s status, it would not be vexatious to persist in seeking copies of the advices, or to freely ask more questions concerning his eligibility to sit in the parliament.
The Frydenberg case is a stark illustration of how political correctness, and one of its legislative incarnations, Section 18(c) of the Racial Discrimination Act (1975) – added to the Act by the Keating Government in 1995 – operate as a sword in our society, in this case to strike at the very heart of our Constitution’s pivotal prohibition on dual citizens governing our nation.
Section 18(c) is not simply an anodyne shield to give comfort to various minorities who may feel offended by some of the products of free speech.
Regardless of the conflation of historical events, it is hoped, and it may well be the case, that Frydenberg is not a dual citizen by descent. However, for the sake of certainty and national security the imbroglio must now be resolved by the High Court.
Frydenberg’s true citizenship status can only be determined forensically by the court reviewing Hungarian citizenship laws to determine whether his Mother had been deprived of her Hungarian citizenship, or else forfeited her citizenship upon becoming an Australian citizen, by virtue of Hungarian Act X of 1947 and Act XXVI of 1948, of Act LX of 1948 on Hungarian Citizenship or of Act V of 1957 on Citizenship, and by requiring verification from records held by the Hungarian Ministry of Interior Affairs as to whether her Hungarian citizenship had ceased under a Ministerial Decree of expatriation.
Frydenberg, who was promoted to Treasurer in 2018, is the sitting member for the electorate of Kooyong in Victoria and is seeking re-election to the House of Representatives. The major parties’ decision to make an exception for one MP has created a constitutional crisis that may embarrassingly soon be addressed by self-helping members of the public in lieu of an incapacitated politically correct federal parliament.
Under the Commonwealth Electoral Act any question respecting the qualifications of a senator or a member of the House of Representatives may be referred to the Court of Disputed Returns (High Court). A candidate for an electorate, or any person who is qualified to vote in the electorate at a federal election, may challenge a result by a petition to the court. The petition must be filed within 40 days after the polling day.
If Frydenberg is re-elected at the forthcoming election, it is foreseeable that a candidate or an eligible person qualified to vote in the Kooyong electorate may file a petition pursuant to Section 355(c) of the Commonwealth Electoral Act disputing the election on the basis that Joshua Anthony Frydenberg is not qualified under the Constitution to stand as a candidate. If the court were to uphold the petition it would declare the election for the seat of Kooyong absolutely void, in which case a new election would be held.
The Australian public is alert to the fact that with increasing loss of privacy there is less room for free speech. Emerging ‘Neo-Aussie’ [i] extremist right-wing political movements are readily capitalising on government demonization of free speech.
Guilt Trip + Public Atonement = Political Correctness [ii]. The Frydenberg case illustrates the danger for society and our constitutional democracy when politicians engage in tactics of political correctness.
[i] National Archives Australia – Strausz
[ii] Jayne Persian - Australian Historian - article distinguishing 'refugees', 'displaced persons', and 'stateless persons'
[iii] Cambridge University Press - Post-War 1940s politics in Hungary -
Jewish leader of Hungary Matyas Rakosi https://en.wikipedia.org/wiki/M%C3%A1ty%C3%A1s_R%C3%A1kosi
[iv] 3/11/2017 The Sydney Morning Herald
Jacqueline Maley His family stung by dual citizenship claims, Josh Frydenberg comes out fighting
[v] 3/11/2017 Turnbull Hits Out At Claim Josh Frydenberg Is Hungarian Dual Citizen
[vi] American Jewish Year Book (1940-41) pp 335 See extract re 1939 Jewish Laws (note - significantly Frydenberg's grandparents were born pre-WW1 in 1908 and 1912)
[vii] 9/11/2017 The Jewish News - ‘Frydenberg citizenship saga ‘absurd’
[viii] Parliamentary Citizenship Register 2018
[ix] 16/8/2018 - 'If we can do it, why can't the rest of the country?': Inside Parliament's unlikely friendship’
by Stephanie Peatling
[x] 10/12/201 ‘Mark Dreyfus Draws Josh Frydenberg Back Into Citizenship Saga, Divides Labor Party’ - ABC News - by political reporter Caitlyn Gribbin
[xi] ‘Ashkenazi’ - Hebrew/Yiddish noun for Jews with European ethnicity (constituting over 80% of Jews globally)
[xii] 10/12/2017 ABC Insiders program – Watch -
[xiii] High Court of Australia [HCCA] 45 pp 24-27
TREVOR POULTON'S "POLITICAL CORRECT LEXICON" - Neologisms (new words) and new expressions
'Correctspeak' - means language that is manipulated to give rise to feelings of guilt followed by the need for public atonement, in order to control social values, personal and public communication, and political activity. Correctspeak is the language of political correctness. (Trevor Poulton 2008) Guilt Trip + Public Atonement = Political Correctness (formulated by Trevor Poulton 2018)
Correctspeak is distinguished from Orwell’s Newspeak which is controlled language, with restricted grammar and limited vocabulary, designed to limit freedom of thought.
'Political Correct Tactics' - Correctspeak is typically employed strategically as a political correct tactic to achieve personal, social, financial and political outcomes.' (1/4/2019)
"Speech Hate" - neologism of Trevor Poulton 2/11/19 - is speech designed to vilify persons who express views that that question other's opinions and values. "Speech Hate" includes spoken or visual discrimination, harassment, threats or violence
[i] ‘Neo-Aussie’ – neologism of Trevor Poulton (2018) - means a person who identifies him or herself as Australian and supports social or political movements seeking to maintain traditional Anglo-Australian values and beliefs, including sustaining a predominantly white European population. The neologism seeks to resolve the often frivolous or disengaging use of the label 'Neo-Nazi' that nowadays means many things to many people, and is often deployed flippantly or negatively to obstruct any kind of debate and civil discussion. The classification makes no judgement, good or evil or otherwise, about this particular identifiable group of Australians. The classification is intended to facilitate constructive social, political and academic debate, instead of deflection, confusion, abuse, and hate that is tearing our society apart, regardless of the issues.
[ii] Guilt Trip + Public Atonement = Political Correctness (formulated by Trevor Poulton 2018)
"Political Correct Thriller" - a suggested new genre of fiction writing in which political correct strategies of inducing guilt and public atonement are utilized to produce sinister outcomes. It shall include drama and satire. (Trevor Poulton 6/5/19)
Aphorism of Trevor Poulton (2014) - 'Without the right to question, what remains is indoctrination.'
Neologism of Trevor Poulton - 'Hard-Wing' 17/7/2019
COMMENTARY ON STATELESSNESS
After World War II
The United Nations (UN) was set up in 1945, immediately after the end of World War II. From its inception, the UN had to deal with the mass atrocities of the war, including the huge refugee populations across Europe. To address the nationality and legal status of these refugees, the United Nations Economic and Social Council (ECOSOC) requested that the UN Secretary-General carry out a study of statelessness in 1948.
In 1948, the Universal Declaration on Human Rights (UDHR) was adopted. It provided both a right to asylum (Article 14) and a right to nationality (Article 15). The declaration also expressly prohibited arbitrary deprivation of nationality, which had affected many of the wartime refugees.
In 1949, the International Law Commission put "Nationality, including statelessness", on its list of topics of international law provisionally selected for codification. In 1950, at the behest of ECOSOC, that item was given priority, and ECOSOC appointed an ad hoc Committee on Refugees and Stateless People to draft a convention. A treaty on refugees was prepared with a draft protocol addressing the status of stateless persons.
The Convention Relating to the Status of Refugees was adopted on 28 July 1951. As of January 2005, it had attracted the signatures of 145 state parties.Since the International Refugee Organization—the predecessor to the United Nations High Commissioner for Refugees (UNHCR)—was in the process of being dissolved, the convention was adopted without the protocol addressing statelessness.
The International Law Commission, at its fifth session in 1953, produced both a Draft Convention on the Elimination of Future Statelessness and a Draft Convention on the Reduction of Future Statelessness. ECOSOC approved both drafts. In 1954, the UN adopted the Convention relating to the Status of Stateless Persons. This convention provided a definition of a stateless person (which has since become part of customary international law, according to the International Law Commission) and set out a number of rights that stateless persons should enjoy. The convention thus became the basis for an international protection regime for stateless persons. However, in order to ensure that the rights enumerated in the convention are protected, states need to be able to identify stateless individuals.
Seven years later, in 1961—only one year after the 1954 convention entered into force—the UN adopted the Convention on the Reduction of Statelessness.