It was an Australian citizenship challenge no other, pitting an ordinary citizen against the Treasurer Josh Frydenberg in the High Court. Frydenberg’s challenger, the activist Michael Staindl, finds out in the coming week if he loses his house in legal costs. Mark Sawyer delves into a case which repelled the mainstream media.
Google the name of Michael Staindl and the number of references doesn’t crack three figures (even with variations of spelling). Nowadays that’s about as many as your family cat might get.
Staindl is certainly not in the league of other legal adversaries of the Australian government, such as Bernard Collaery, David McBride or, in a roundabout way, Julian Assange.
Staindl, 68, lives in Hawthorn, in Melbourne’s eastern suburbs. Journalists are apt to use terms such as respectable, affluent and genteel when describing that part of the world. In fact it’s pretty motivated politically, as the 2019 election proved, and the 2022 election will prove.
Whether Staindl stays in such ”leafy” environs is a matter of doubt, because he may be about to lose his house. The reason: a court case which he fought, and lost, against Treasurer Josh Frydenberg.
His case says a lot about the interplay of politics, law and social standards. Staindl would prefer it was about climate change, but it starts with him challenging the right of Frydenberg to sit in the Australian Parliament on the basis of citizenship.
The way it looks to Staindl and his supporters, one Australian seeking to do right for his country.
Frydenberg’s people see it another way. Frydenberg himself is silent, and remains so as Standl’s supporters try to shame him into having the costs order of $410,000 (plus interest) lifted. (The amount was reduced from $855,000 in court-ordered mediation). The deadline for the payment is next Friday.
Who is fit to sit in this place?
The case is not connected to the citizenship crisis that engulfed federal parliamentarians, but it likely drew inspiration from it. In 2017-18, a series of legal challenges were brought against federal politicians who had fallen foul of section 44 of the constitution, which forbids MPs from holding any citizenship but Australian.
Fifteen politicians, including ‘’New Zealander’’ Barnaby Joyce, had apparently unwittingly held more than one citizenship and surrendered their seats. Most were returned in by-elections. And in May 2019, Frydenberg was re-elected in his seat of Kooyong as part of the Morrison government’s unexpected victory.
This ‘’miracle’’ brought about a range of legal disputes in eastern Melbourne electorates, based on such issues as Liberal Party Chinese-language election material and corflutes imitating the style of official election material.
Enter Michael Staindl. The retired IT executive is, in the words of supporter Sandi Keane, a ”much loved climate hero”. He has had a lot to say about the climate emergency, but that was not the grounds on which he sought to take the Treasurer out of Parliament.
The big play
In July 2019, Staindl brought an action in the High Court against Frydenberg, claiming he was ineligible under s44 because he was a citizen of Hungary, conferred via his mother, the former Erica Strausz.
In December 2019 the High Court referred the case to the Federal Court because factual as well as legal issues remained unresolved.
Law firm Arnold Bloch Leibler represented Frydenberg pro bono, for free in other words. The court lists Staindl as being represented by Bleyer Lawyers, counsel A. Aleksov.
On March 17, 2020 the Federal Court (sitting as the Court of Disputed Returns) found that Frydenberg’s maternal family had lost their citizenship upon leaving Hungary. Therefore, he was eligible to sit in the parliament.
In a 163-paragraph judgment, the court examined the status of Frydenberg’s mother Erica Strausz. Born a Hungarian citizen in 1943, she left the nation with her parents and two sisters in 1949. The family passed through Austria and France. They departed Genoa, Italy in late 1950, arriving in Sydney in December.
The court noted that:
On 8 February 1951, Erica was granted a certificate of exemption (No. 51/2058) under the Immigration Act 1901-1949 as a stateless person.
This, on the face of it, negates any idea that she was a Hungarian citizen.
The three judges describe the plight of Hungarian Jews such as Erica’s family in the Holocaust. ”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.”
The judgment observes:
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.
In August 2021, the court ordered Staindl to pay Frydenberg’s costs.
A matter of motivation
Staindl and his supporters emphatically deny anti-Semitism on his part, but it was inevitable that his case would be tainted. Not only was his mother born into the nightmare of anti-Jewish Hungary, Frydenberg is the first Jewish representative of the Liberal Party to sit in Parliament. Elected by the people of Kooyong, he would have been unseated by a court because of murderous events in Europe three decades before he was born.
Upon news of the challenge, Staindl was blasted in Parliament by Assistant Treasurer Michael Sukkar as ”a pathetic extremist”. Left-wing activist lobby GetUp condemned the court action; Labor frontbencher Tanya Plibersek called it ”a bridge too far”.
“I was probably a bit naive,” Staindl told The Age. ”I thought Frydenberg’s side would be covered by the government. I didn’t realise that I would potentially be liable for Frydenberg’s case.” One can only wonder at the calibre of the advice he was receiving.
Staindl’s supporters believe the odds were stacked unfairly against him. ”Michael’s was not a quixotic quest but a matter of public duty,” Keane states. She maintains that the mainstream media ”ran for cover”; true enough, except for stories about Staindl’s financial plight.
Supporters also see links between the Liberal Party and right-wingers in Hungary, citing a visit by Tony Abbott (no longer in parliament) and Kevin Andrews (no longer a minister) in 2019.
And, perhaps bravely, Keane asserts that Erica was not fleeing the Holocaust when she came to Australia. ”For the record, [the family] left under a communist regime which took over in 1945 and were led by then Prime Minister, Mátyás Rákosi , who was Jewish by birth.” This is true, although such an argument would negate the refugee claims of victims of the Taliban who fled via Pakistan and ended up in Indonesia for a period before hopping a boat for Australia.
And the court is no help with that argument:
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.
The case does involve a cast of exotic contemporary Australian characters, too many to describe here. Nonetheless it’s impossible to imagine any of them had an effect on the judgment.
Star witness AWOL
Then there’s Staindl’s ”star witness”, Dr Peter Lang, described by the Staindl camp as a legal expert from Hungary on dual citizenship. The university professor Lang withdrew, citing illness. Attempts by the Staindl team to contact him were unsuccessful. Their honours gave short shrift (three paragraphs) to Dr Lang.
The court noted:
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.
This is not the article Staindl’s supporters wanted MWM to write, although it might generate sympathy and donations assuming the court order stays. It is hard to reconcile the professed naivete of Michael Staindl, and his ”oblique” methods of raising awareness of the climate danger, with the nature of his quest and the single-mindedness with which it was pursued.
He brought a case against one of the nation’s highest officials in the highest court of the land, and lost.
I am left with the sinking feeling that Staindl was used and is now being hung out to dry.
Others have rendered a harsher verdict. Joe Aston, Australian Financial Review, February 2: ”Arnold Bloch Leibler performed an honourable public service representing Josh Frydenberg in the abhorrent challenge … What a pity we did away with debtors’ prisons …”
Little else for Staindl to do but throw himself on the mercy of the man he pursued. He has made this plea to Frydenberg:
“I realise that my legal action against you was hurtful, and for that pain I am truly sorry. Please, may I ask you again to look into your heart and consider that Kay and I have suffered enough. We are literally at your mercy. As constituents, and as fellow humans, I ask you to please exercise your discretion and terminate bankruptcy proceedings so we can all move on and focus on what’s important.”
Staindl told The Age the Treasurer had not responded.
For his part, Staindl has been left with no choice but to crowd fund his legal costs or lose his house. The case presents a warning to those who would take on powerful people, or institutions, in the courts; no matter the principle.
What should never be forgotten is the suffering of so many Hungarians, and the people who never had a chance to start a new life in Australia.
Mark Sawyer is a journalist with extensive experience in print and digital media in Sydney, Melbourne and rural Australia.