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.