Eligibility crisis continues

Posted: August 11, 2019 in Ranting
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Law is a curious creature. It is impassive. It is neutral. And it is this impassive nature that allows it to apply equally to all those under it. Yet it is also this impassivity which can mean problems if the law is ignored, misapplied or corruptly used.

The eligibility crisis in Federal Parliament came about because all too many people decided to ignore the law. Specifically, when signing the relevant forms to stand for election, they happily signed the statement declaring they were eligible under section 44 of the Australian Constitution, without ensuring this was correct.

The likes of Barnaby Joyce simply ignored the requirements of the Constitution. What, Dad was a Kiwi? Nah, won’t apply to me. Malcolm Roberts pulled on his tinfoil hat, decided that he was an Australian and therefore nothing else would apply – presumably the hat was to shield him from dangerous citizenship rays from any other nation. They blatantly ignored the law.

Labor came unstuck by assuming the concept of the reasonable person would be accepted by the High Court. That means that it would be considered reasonable that submission of all required documents to renounce another citizenship and payment of fees to the other nation before the election, renounced other citizenship and satisfied the question of being eligible.

It was the matter of Senator Katy Gallagher which showed just where the courts stand. The Australian Constitution is a foundation of Australian law. The High Court found that as such a foundation document, it was necessary to have applied by it in full, not near enough or close enough. As such, for any other citizenship to have been renounced, to satisfy the requirements of the Constitution, the renunciation had to have been accepted and finalised by the other nation. Consequently, Labor had incorrectly anticipated how the law would be applied.

Things cannot get much clearer than that. If you want to be eligible for election to parliament in Australia and you have another citizenship, that must by renounced in full by both you and the other nation. If not, then you are not eligible for election. It does not matter whether you sought that other citizenship or not. All that matters, is if that other citizenship exists. Importantly, it is not your own view or sense of identification, it is simply a matter of black-and-white law.

It is also important to realise that an individual may be deemed a citizen of another nation without having directly seeking that citizenship. Nor is any allowance given for those who were not aware that they held that other citizenship when they sought election.

Josh Frydenberg (photo credit Alex Ellinghausen)

Unfortunately, there will still be occasions where things can be questioned. And Treasurer Josh Frydenberg falls into this category. His mother arrived in Australia after World War II as a Jewish refugee from Hungary. I understand that she was deemed stateless and therefore on becoming an Australian citizen, there was no question of another citizenship at that time.

The crucial words however are ‘at that time.’

There is no question that the horrors of the Holocaust existed with Nazi occupation of Hungary. I wouldn’t wish that experience on my worst enemy. An entire Jewish branch of my wider family on my father’s side, were wiped out in the Holocaust. After the Soviets occupied Hungarian territory in the defeat of Nazi forces, it was indisputably under Soviet influence with Soviet control formalised in 1949 with the formation of a People’s Republic. And Soviet domiciles hardly had a good reputation for treatment of the Jewish faith. However, the USSR collapsed in 1989, thirty years ago.

While it has been accepted that Frydenberg’s mother was deemed stateless on her arrival in Australia, there seem to have been reforms in more recent years in Hungary. Various rights have been returned to those deprived of them in earlier years. What is not clear is whether Hungarian authorities have possibly awarded citizenship rights back to those previously deprived of them, such as Jewish refugees, or to their progeny.

The simple clarity of the finding of the Australian courts is that the existence of any other citizenship makes any Australian ineligible for election to parliament. Due to the uncertainty of the situation, it is not unreasonable to question whether or not Hungary now considers Josh Frydenberg to be a citizen of that nation.

Given the uncertainty of the situation, noting the various changes made since the end of the Soviet Union control of Hungary, it is not unreasonable to place the question to the Hungarian authorities. They are the only ones who are going to be able to provide a definitive answer. If the answer to that question is no, then the matter is closed with Frydenberg’s eligibility beyond question. But by refusing to clarify the matter, Frydenberg is taking the position that he must be awarded a free ride, a position not given to any other politician in this matter of eligibility.

In the eyes of the law, the matter of Josh Frydenberg’s eligibility under section 44 of the Australian Constitution has not been resolved. Nor can it until such time as Hungarian authorities are consulted about how things stand at this time.

Ross doesn’t bite – a lot – so if you like this piece, feel free to share it and follow Ross’s Rant. But please – don’t use this without contacting me first. And in this specific instance no permission shall be grantedfor any antisemitic use of this material.

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