Consumed with managing the economic consequences of the coronavirus pandemic, Australia's Treasurer, Josh Frydenberg, can be forgiven for taking a sigh of relief following the full Federal Court's finding on Tuesday, sitting as the Court of Disputed Returns, that he is not a dual citizen of Hungary and continues to be eligible to sit in the Australian Parliament.
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A finding that he was a dual citizen under the terms of section 44(i) of the constitution would have meant another messy byelection and an excruciating diversion from the key focus of the times.
Frydenberg and, indeed, the country's relief, however, does not speak more broadly to the health of Australia's citizenship laws in both constitutional and legislative terms. The Court's decision does not protect against the continuing anti-democratic hazards of section 44(i) of the constitution, which Frydenberg was only just cleared of with this decision.
Since 2017, many individuals in Australia (both in Parliament or those thinking of running for Parliament in the recent election and any forthcoming elections) realised they may potentially hold a citizenship of which they were not aware. Frydenberg had been vulnerable to this challenge since first taking his seat in 2010, given the lack of clarity around Hungary's citizenship laws. Indeed, this lack of clarity led Tim Hollo, a candidate in the last federal election, to renounce his Hungarian citizenship as his father had a similar history to Frydenberg's mother.
It took until this Tuesday for Frydenberg's eligibility to be finally determined, although the 46-page decision illustrates it was far from clear, and that even the multitude of experts were not entirely consistent on whether Frydenberg's mother had lost her Hungarian citizenship on fleeing Hungary in 1949. The language of the court, after examining a complex set of citizenship laws, the Hungarian constitution, and historical and social realities of the period, was that it was prepared to "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 [Frydenberg's mother's] family brought an end to their Hungarian citizenship".
This decision, however, does not protect people whose former citizenship, or parents' or grandparents' citizenship, is of any country outside of Australia where citizenship laws may change. Indeed, the 163 paragraphs of the decision highlight the intricacy of facts that needed an army of experts to analyse. Any losing candidate, in any future election and no matter what their motive, will always be able to validly challenge the "winner" of an election if that person's citizenship status is not completely clear. This is often the case in a healthy multicultural society like Australia - and it places too high an onus on anyone considering running for Parliament whose family history involves connections to other countries.
The court's reasoning is also relevant to the capacity of the government to strip a dual citizen of their Australian citizenship under the Australian Citizenship Act 2007, and the power to temporarily exclude Australian citizens from residence in Australia under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019. The Frydenberg decision, like the High Court's recent decision about Indigenous membership of Australia in Love and Thoms, raises questions about the constitutionality of both pieces of legislation that this government enacted.
In the Frydenberg decision, the court drew on the High Court's decision in Re Canavan, and was persuaded that even if there was any form or shell of continuing Hungarian citizenship held by Frydenberg's grandparents and mother, it did not give them a right of residence. This was a lesser form of citizenship than envisaged by Section 44(i), and was similar to Nick Xenophon's British Overseas citizenship which also did not give him a right of residence and therefore protected him from being ineligible to sit in Parliament.
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In other words, full citizenship entitles a person to residence in their country of citizenship. This interpretation of the "rights of citizenship" highlights the questions raised repeatedly by numerous experts about the constitutional validity of stripping dual citizens of their Australian citizenship and removing their right of residence. And it further questions the legality of the temporary exclusion measures enabling the government to prevent Australian citizens returning to "enjoy" their right of residence in Australia.
When the nation's attention is able to return to the health of Australia's constitutional and legislative wellbeing, Frydenberg's experience of section 44(i)'s inherent problems should benefit other Australians by encouraging a bipartisan approach. Rather than Frydenberg's scenario repeating itself endlessly, Parliament should adopt the recommendations of the Joint Standing Committee on Electoral Matters to amend section 44(i) of the constitution.
It should also pay close attention to the judgment's recounting of the steps that led to the break down in the rule of law in Hungary, which included changing their citizenship laws. In addition to amending section 44(i), Frydenberg's imbroglio should instruct the government, of which he is such an important part, to repeal the citizenship-stripping provisions of the Australian Citizenship Act, and the Temporary Exclusion Act.
This would be necessary to immunise Australia's democracy and remove the cloud currently shuttering Australia's citizenship health.
- Kim Rubenstein is a Professor at the Faculty of Business, Government and Law at the University of Canberra, and co-director of the 50/50 by 2030 Foundation. She is the author of Australian Citizenship Law 2017 (Thomson Reuters).
