Activist defends failed constitutional challenge against Frydenberg

Michael Staindl has mixed feelings about his controversial and failed attempt to unseat Treasurer Josh Frydenberg from Parliament.

It's two weeks since his legal challenge to Frydenberg's eligibility on the basis of dual-citizenship was dismissed by the Federal Court. Staindl alleged Frydenberg had inherited Hungarian citizenship from his mother, Erica Strausz, a Hungarian-born Holocaust survivor, and as such should be disqualified from Parliament.

The full bench, sitting as the Court of Disputed Returns, was unanimous in dismissing the claim. Its judgment made pointed reference to the backdrop of “catastrophe, anti-Jewish violence and terror” which Strauz's family escaped and noted the “niceties of proof of the production or issue of documents ... can be put aside when one recognises the realities of 1949".

The judges went on to say there was "no evidence to support" the claim and ordered Staindl to pay Frydenberg's costs – likely to amount to hundreds of thousands of dollars. The Treasurer has refused to comment on the case even after it was resolved, but his supporters have been less restrained.

Michael Staindl leaves the Federal Court after the case was heard in February.Credit: AAP

They branded it an orchestrated attack by a network of sophisticated Kooyong residents who seized on anti-Semitic claims as a means to agitate for climate change. “Staindl and his fellow travellers … have stooped to the lowest of the low,” Assistant Treasurer Michael Sukkar said under parliamentary privilege in August 2019.

Sukkar told Parliament he believed Staindl was acting in concert with Kooyong independent and climate campaigner Oliver Yates, The Holocaust Denier author Trevor Poulton, and former Kooyong Greens candidate Julian Burnside, a high-profile human rights lawyer.

“What is it with these pathetic extremists?” Sukkar asked in Parliament. “They just can't accept defeat at the ballot box and are now happy to band together, supporting bigots and anti-Semites who have questioned the Holocaust.”

In an interview with the Sunday Age, Staindl rejects claims he is an anti-Semite. Indeed, he is forceful when saying he thinks the Holocaust is one of the "great catastrophes" of history. "But it’s utterly irrelevant as to whether the Treasurer and the PM follow the law of the land," he said.

“The driving light for me has always been that climate change is such an existential crisis,” Staindl says. “I’ve spent the last 10 years doing everything in my power to make us wake up and act on this issue and to do that, I think, we need to pull on every lever we can, no matter how tenuous and oblique it may seem.”

He says he worked largely alone, with the exception of lawyer Vanessa Bleyer – a return Tasmanian Greens candidate – and 392 supporters who stumped up $33,770 to a crowdfunding account to pay for the case.

Frydenberg suffered a swing of 8 per cent against him in the 2019 federal election, making blue-ribbon Kooyong a marginal seat. Staindl believed that if he succeeded in the legal challenge, it was possible a by-election would produce a bigger swing – perhaps enough to unseat the MP and deliver a symbolic win for activists frustrated by the Coalition's climate change policies.

This much is not in dispute. His links with the "extremists" Sukkar listed in Parliament are far less clear, even if they do point to a history of political and environmental agitation in Kooyong. It is an area in Melbourne’s genteel eastern suburbs where these two interests have long been interlinked.

Staindl spent a decade in a leading role with climate action group Lighter Footprints, which put him in frequent contact with politicians, including Frydenberg.

Kooyong candidates including Josh Frydenberg (right), Oliver Yates (centre) and Julian Burnside (left) attend a Lighter Footprints community climate forum.Credit: Arsineh Houspian

In 2019, as environmental concerns played out as a central political issue across inner Melbourne, Staindl supported Oliver Yates, the Clean Energy Finance Corporation’s former chief executive, who ran as an independent against Frydenberg with a singular focus on climate action.

Staindl was on Yates’ mailing list, and also fixed his distinctive teal corflute to his front fence.

On election day, Yates – who raised more than $360,000 from a broad support network including renewable energy investor Simon Holmes a Court’s Climate 200 fighting fund – secured just under 9 per cent of the vote after preferences. Greens candidate Burnside scored under 45 per cent after preferences, picking up 2.6 per cent.

Mobilised by the election swing, Kooyong residents united by a common goal of environmental action soon had new campaigns to rally behind.

Post election, Yates seized upon a series of Chinese-language signs Liberals used on election day that featured a purple and white colour scheme similar to that used in Australian Electoral Commission notices, which he regarded as misleading and deceptive. The signs became the basis for his legal challenge against Frydenberg’s election. Unionist and environmental campaigner Vanessa Garbett would go on to level the same claim against Liberal’s successful Chisholm candidate Gladys Liu.

Kooyong independent Oliver Yates on the campaign trailCredit: Justin McManus

At the same time, Yates urged his supporters in emails to do their own investigations into candidates and AEC declarations, and to comb section 44 data.

Staindl says it is possible Yates’ mail-out alerted him to the fact constituents had a small window to challenge an MP's election after polling day. It closed on August 7. In Staindl’s words, a combined Greens-independent push against Frydenberg had produced an 8 per cent swing. Now the community was mobilised, surely a by-election in quick succession would bring them closer to ousting Frydenberg.

In the company of two other concurrent cases against Gladys Liu and Frydenberg regarding the AEC signs, Staindl’s case was interpreted as the third prong of a co-ordinated attack on the Liberal Party, even as the petitioners insisted they were working independently.

“Yates and I have not been involved in this together in any way at all,” Staindl said. “I knew what he was doing [regarding the signs] and I was extremely interested in it, but it was apparent he had elected not to [take up the citizenship case] and shied right away from it, and that was part of my reason for stepping up.”

Frydenberg had been prepped for a challenge, just not from Staindl. In mid-July, solicitor Trevor Poulton stepped forward to reveal in a Network Ten report he believed Erica Strausz’s Hungarian heritage may have conveyed citizenship to her son. He was briefing “certain constituents in Kooyong”, he added.

At the time, the then-ALP member was under suspicion of anti-Semitism by some party members regarding his input into policy debates, particularly regarding section 18C of the Racial Discrimination Act, and his novel, The Holocaust Denier.

(Three days after the broadcast, Labor MP Josh Burns pushed to expel the member, citing his views on the Holocaust were inconsistent with the ALP’s national platform. Poulton resigned ahead of the hearing.)

In early August, just as the challenge window was closing, Yates denied he'd had contact with Poulton in a fiery exchange on Sky News.

He admitted he had received group emails from Poulton but denied responding to them. Yates said he did not support the citizenship case against Frydenberg, calling it a “futile exercise”. Staindl was equally forceful in denying any link with Poulton, and says any suggestion he informed his case was “insulting”.

Poulton did not return calls from The Age.

This week, Yates – who was born in Britain and had to renounce his own citizenship – repeated he didn’t agree with the citizenship challenge, called the section 44 clause “stupid" and said Frydenberg has lived in Australia "longer than I have". The case had distracted from his own AEC signs case, Yates said. He repeated he had not worked with Staindl, and said any call for supporters to probe candidates’ citizenship was a national prompt, rather than a targeted attack in Kooyong.

Burnside, who was parachuted in as the Greens candidate for Kooyong in 2019, also rejected Sukkar's claim, and any association with the case.

Oliver Yates (left) and Treasurer Josh Frydenberg at a Kooyong candidates forum during the election.Credit: Arsineh Houspian

"It's simply false and its gutless of him to say it under parliamentary privilege," Burnside said. "I've never met Michael Staindl, and I'm not a denier of the Holocaust ... but to accuse someone of anti-Semitism simply because they challenge Frydenberg on section 44 grounds is despicable.

"The fact he challenged Frydenberg does not make him anti-Semitic."

The case, which wrapped up last month, has been pivotal in its interpretation of section 44 of the constitution. The clause forbids individuals with dual citizenship from holding federal office and has felled 15 MPs who were shown to have unwittingly held two citizenships. To be sure, Frydenberg's position as Treasurer gave the case a particular gravity from the outset.

But it was the nature of his mother Erica Strausz’s arrival in Australia in 1950 as a stateless, Jewish Holocaust survivor that set it apart from the other section 44 cases.

Strausz was born a Hungarian citizen in 1943, and left the Communist-controlled nation with her parents and two sisters in 1949. The family went through Austria and France, before departing Genoa, Italy in late 1950 for Sydney, via Fremantle.

Labor MPs ruled out the challenge against Frydenberg during the height of citizenship scrutiny in 2018, with then deputy leader Tanya Plibersek – herself the child of Slovenian immigrant parents – describing the case a “bridge too far”.

The discomfort in pursuing Frydenberg on the basis of his family’s post-war escape was also echoed by GetUp!, the activist organisation Staindl volunteered with for a decade.

“We condemn it,” national director Paul Oosting said of the action. “No one should be denied a place in Parliament because their family was forced to flee the Holocaust.”

On March 17 as Staindl’s case was handed down, the weary looking environmentalist appeared downcast outside the court.

Staindl is frank about the financial toll the exercise has taken on him and his family.

After the citizenship battle, the climate remains his top priority – even as coronavirus infections soar. “COVID-19 … is a summer's picnic compared to what we’re heading for …. We need to keep working on the environment, while fighting COVID, that’s what we really need to do.”