Andrew Theophanous

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Dr Andrew Charles Theophanous is a controversial Australian politician and a tragic public figure. His supporters have often described him as a “champion of multiculturalism and of an expanded and generous immigration policy in Australia”. To his detractors, he is seen as a disgraced person who has shamed his position in the Australian Federal Parliament in which he served for 21 years. He was an Australian Labor Party member of the Australian House of Representatives from 1980 to 2000, and an independent member from 2000 to 2001. He subsequently achieved notoriety in 2002 when he was convicted on four immigration related charges and sentenced to three and a half years in prison. However his sentence was halved by the Supreme Court of Appeal in Victoria, when they quashed his conviction on the main charge of Conspiracy to defraud the Commonwealth in relation to a Visitor’s visa application. After his release in February 2004 and right up to July 2006, the Prosecutors attempted to force a retrial on the Conspiracy charge.

On 28 July 2006, after a three month Pretrial process, Judge Morrish dismissed the Conspiracy charge and permanently stayed further proceedings. Significantly in dismissing this charge, her Honour was highly critical of the behavior of of the National Crime Authority towards Theophanous. She found that they had been involved in a continuous and deliberate process of cover up and some of their officers had lied in previous court proceedings. As a result Theophanous stated to the media that he would be trying to clear his name and reverse the other three outstanding minor convictions about which he has always professed his innocence. The saga continues.

Theophanous was born at Paphos, Cyprus on 24th March 1946. He migrated to Australia at the age of eight, with his mother, brother and sister; his father had arrived three years earlier. He grew up in the working class suburb of Broadmeadows, where his parents were factory workers. He managed to enter university and graduated with a BA (First Class Hons) (Monash University). He gained a BLitt from Oxford University and a PhD in Philosophy from Melbourne University. In 1980, his first book “Australian Democracy in Crisis: a radical approach to Australian politics” was published by Oxford University Press. Theophanous’s occupation before entering the House of Representatives was as Lecturer in Politics, Melbourne State College; in Social Theory, Melbourne University. He also lectured at University of Nevada, USA, and as Senior Teaching Fellow at Monash University.

Theophanous was first elected as the Labor member for the Melbourne electorate of Burke in 1980. He switched to the new safe Labor electorate of Calwell in 1984. Theophanous became heavily interested in immigration matters, and from 1989 to 1993, was Chairman of the Joint Standing Committee on Migration. In this capacity,Theophanous produced a number of key reports which set directions for Immigration and Refugee policies as adopted by the Labor Government. One of these reports created a great controversy – and is seen by many as the source of his troubles. As Committee chairman, Theophanous recommended that more than 45,000 students who had arrived from China during the Tienanmin Square incident of 1989 be able to stay permanently in Australia. This recommendation was adopted by then Labor government, but created huge opposition in sections of the Australian community, including from Mr Phillip Ruddock, who later became Immigration Minister in the Howard Liberal government elected in 1996.

In 1993, Theophanous was appointed as Parliamentary Secretary to the Minister for Housing, Local Government and Community Services and Parliamentary Secretary to the Minister for Health. In December, he was instead appointed as Parliamentary Secretary to the Minister for Housing, Local Government and Human Services. In March 1994, this was again changed, when Theophanous was appointed as Parliamentary Secretary to Prime Minister Paul Keating. In addition to exercising this large number of responsibilities in the Labor Government during this time, Theophanous published two more books: “Understanding Social Justice: an Australian perspective” (1994) ; and “Understanding Multiculturalism and Australian Identity” (1995). Both books were officially launched by Prime Minister Keating; they were used widely in a number of academic courses. In addition, Theophanous made a number of presentations to conferences – both academic and political – and published many articles in journals.

However it was for his extensive involvement in immigration and multicultural matters - at both the policy level and in terms of assistance to a very large number of people and organizations – that Theophanous was well known in Australian society. His supporters firmly believe that it was this work which led to the series of investigations against him and to his subsequent public humiliation.

During 1998 and 1999, Theophanous came under suspicion for being involved in migration fraud, and the National Crime Authority launched an investigation, codenamed Operation Legume. Firstly, Theophanous' phones were tapped - somewhat controversially, as he remained a sitting MP. When this failed to produce any evidence, the NCA launched a sting operation, with the assistance of an undercover police officer, who was given the fake name of Frank Cheung. The role of Cheung has been very controversial. Cheung was a convicted heroin dealer who was trying to ingratiate himself with the NCA. In the 2006 Retrial proceedings on the conspiracy charge, the Prosecution asserted continuously that Frank Cheung had been a genuine co-conspirator with Theophanous, in trying to falsely pursuade immigration officials to admit his ‘girlfriend’, Ms Chen Qing into Australia on a visitor’s visa. Even though the NCA officially admitted that they had carried out a range of unlawful actions in this matter, they denied that they were involved in any conspiracy themselves.

In throwing out the conspiracy charge, Her Honour Judge Morrish condemned the former NCA. Thus in a critical part of her Judgment, Her Honour said of the documents which she forced the ACC (representing the former NCA) to produce:

“Further, the documents reveal the real potential that a number of witnesses knowingly gave false evidence at the trial before His Honour Judge Crossley or, at the very least, gave misleading answers. For example: (1) the evidence given that effectively no assistance was given to Cheung regarding the travel application; (2) that Cheung's request for Dr Theophanous' help came virtually “out of the blue”, and (3) that the NCA had no intention of letting Cheng Qing travel to Australia.

All of this in turn leads to serious questions concerning the role played by the NCA. All of these matters are potentially relevant to the exercise of a discretion pursuant to the principles enunciated in Ridgeway. Going back further in time, it also raises the propriety of the NCA in its dealings with the DPP who, as I have said, were concerned about the issue regarding Cheung's status as early as January 1999. I should add that as a result of all this new information coming to light, I requested the ACC to again produce the unedited case log for my consideration. By then the case log had apparently been lost.

By June 1999, it was public knowledge that Theophanous was under investigation by the National Crime Authority. On June 28, Theophanous publicly attacked NCA head John Broome and accused the organisation of misusing its powers. Few people believed these assertions of Theophanous at the time. However, the recent Pretrial process has demonstrated that an extensive abuse of powers and process did indeed take place. As her Honour Judge Morrish said in her Judgment:

“I have referred to the new facts and documents –these matters were not known at committal, trial and appeal. I consider that high public policy demands condemnation of the practices that were adopted by the investigating operatives here. That conduct seriously calls into question the integrity of all previous proceedings. There is public interest in the courts’ processes not being used as a forum of oppression and the courts’ protecting accused persons from the excesses of the State. In my judgment the interests of justice require me to dismiss the charge pursuant to s.86(7)”.

Her Honour named several people who were guilty of these practices. She said: “I have serious questions about the actions of the following people on the question of disclosure”. She named a number of former NCA officials; John Broome, then NCA Chairman, was one of the people named.

The Melbourne Herald Sun reported the matter under the following Headline: JUDGE HITS NCA, FREES JAILED MP. The Australian Broadcasting Corporation headline was: “Crime authority blasted as former MP's charge dropped”. Theophanous response to these dramatic developments was reported by the Australian Associated Press so: “As he left the court on Friday evening, Theophanous choked back tears. "After seven years, nearly eight years of torment, and I protested my innocence throughout," he said. "This was the main charge against us. "We fought it, it was dismissed by the Supreme Court, it was brought back again and as you've seen, after seven years what we've maintained all along - there was a conspiracy to withhold major evidence in relation to this matter."

Theophanous, once a parliamentary secretary under Paul Keating, said he would seek legal advice on his three convictions and wanted to pursue an investigation into the former NCA.” Theophanous later announced that he would be making a Submission to the Howard Government on these issues.

The tragedy of Theophanous extended to his political life. Even before he went to trial, the allegations against him had a massive impact on his parliamentary career. Towards the end of 1999, he came into conflict with with the Opposition Leader Kim Beazley over the fact the Labor Party was supporting the new Temporary Protection Visa system for refugees as proposed by the Howard Government. Theophanous was the only person to speak in the House of Representatives against this proposal - which was supported by both parties. He argued that it would be the beginning of a system of intense discrimination against the boat people; this was confirmed in the later Tampa crisis. Not long after, it became clear that Theophanous would not retain Labor pre-selection to retain his seat at the 2001 election.

Because of this and other disagreements over immigration and multicultural poicy, Theophanous resigned from the Labor party on April 15th 2000. However, his detractors claimed that he was unsuccessfully attempting to install his brother Theo, a member of the Victorian Legislative Council, as his replacement. At this time, Theophanous announced that he would serve out his term as an independent. During this period as an independent, Theophanous initiated a number of motions in parliament on immigration, refugees, multicultural affairs and human rights. With the help of the parliamentary library, he researched and introduced a model Australian Bill of Rights.

Theophanous attempted to recontest the seat himself at the 2001 election. Although he was defeated by the new Labor candidate, Maria Vamvakinou, he nevertheless polled 9.6% of the vote, which was the highest independent vote at the federal election for any metropolitan candidate.

Theophanous is married to Dr. Kathryn Eriksson, an Archaeologist specializing on the East Mediterranean societies of the Bronze Age. She became wellknown in the Australian Community for her continuing defence of Theophanous during his incarceration. In November 2005, she was elected as a Brimbank Horseshoe Bend Ward Councillor. Theophanous' brother is the State Upper House ALP MP - the Hon. Theo Theophanous, who is also the Minister for Industry, State Development and Major Projects in the Victorian State Government.

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