Ceilia Divakaran

Barristers/Legal Firms
Winter 2015

My hunger to become immersed in the coalface of the law found me in this most eclectic of working environments; contemplating legal principles, defending the rights and interests of the first Australians, recollecting Maralinga and the A bomb tests whilst punctuated by rainy day music in the background. The cosy inner city cottage is a vibrant hub where Andrew exercises his legal prowess, generously imparts his vast knowledge to those desirous of learning, engages clients and associates and thrives on a staple of sushi. 

Andrew has a long history of working with Aboriginal peoples and it was unsurprising to me that he was awarded an Order of Australia for his contributions in this arena. I have long admired Andrew for his work which at different times intersected with mine in criminal justice administration and the Aboriginal Affairs policy domain. The Aurora Internship Program presented an ideal opportunity to interrogate his legal mind and gain an insight into the life and times of a barrister at large.

The learning experience occurred at three levels; firstly, the fundamentals of legal work-receiving a brief, undertaking the legal research, being emotionally detached and governed only by legal principles, engaging the solicitor and court attendance; secondly, gleaning insight into the world of a senior barrister who is on talking and nodding terms with legal luminaries, his sphere of influence cautiously exercised but never exceeded, the embedded thinking to remain objective at all times in the client relationship, the scope and complexity of cases being handled; and thirdly, the making of a successful individual at law, clever time management, being thorough, analytical and disciplined, a mixture of good humour to release work pressure, genuine investment in crafting respectful and enduring professional relationships and a dose of fine wine.

During my internship Andrew would discuss the cases he was managing and the legal issues they entail. Some of the plaintiffs were known to me which made the cases just that much more interesting whilst reminding me of my ethical obligations for confidentiality. I had the opportunity to peruse a number of briefs of cases that Andrew was legal counsel for, including a stolen generations case, a claim under Torts, and a major Native Title case. The tortious claim was interesting on a point of law as to whether police actions are immune to ‘duty of care’ provisions. The argument put forward was the breach had occurred whilst police were undertaking administrative duties and not in line with investigative/prosecution work. 

I had the opportunity to attend a meeting with a General Manager from a land holding authority seeking advice on a number of administrative matters in relation to legal responsibilities and obligations of the organisation. The discussion was interesting in respect of how legal advice provides good foundation for administrative decision making. It is apparent how communities and their administration are juggling many complex issues simultaneously and the value access to good counsel provides.

Just prior to my internship commencing the South Australian Government had announced a Royal Commission into the Nuclear Fuel Cycle, a precursor to the State’s consideration of a waste repository in this jurisdiction. As legal counsel for the Maralinga people, Andrew was instructed to prepare a submission on behalf of Maralinga Tjarutja Inc to the Royal Commission. Assisting Andrew on this interesting piece of work combined my knowledge of the Maralinga clean up, considerations in the engagement of traditional Aboriginal peoples in government business and, significant to me, the learning on how to prepare affidavits that gives good standing to a submission for a Royal Commission.

Preparing the submission required a good deal of legal and anthropological research and Andrew’s library provided most of the source documents for this. In fact, in the office I occupied hangs a framed photograph of three Maralinga Traditional Owners with a backdrop of Big Ben, taken when Andrew and these old men were in London negotiating with the British administration for compensation and clean-up from the nuclear tests on Maralinga Lands. Andrew spent a lot of time guiding me through the basis of the submission, whilst liaising with the General Manager and Traditional Owners on the general direction that submission was to take. 

The importance of government having a deep understanding of traditional Aboriginal peoples and their cultures and how best to engage with them ‘in good faith’, to obtain ‘free, prior and informed consent’ and their ‘right to negotiate’ were strong features in the body of the submission to the Royal Commission. In doing this task it brought home how there is no word in Pitjantjatjara Language, the language spoken by Maralinga people, for the word ‘radioactive’ as it is a foreign concept. The word adopted by Maralinga people to describe this is ‘poison’ or ‘iranti’ which literally translates to ‘killing magic, deadly magical weapon’.

The Royal Commission triggered lobbyists vying for traditional Aboriginal people’s affection to support the conservationists and anti-nuclear agenda, creating another layer of political sensitivity to the task of preparing the submission. 

The affidavits were drafted by gathering information from five individuals, eminent in their fields of Aboriginal administration, anthropology, geology and traditional Aboriginal culture. A questionnaire was administered and information was then extracted to support statements made in the submission proper. Given the basic requirement for statements to be asserted based on expert knowledge and primary experience and not generalised opinions on issues, Andrew’s editorial pen on the draft was part of the learning process. Maralinga Tjarutja Inc was pleased with the final submission and it was lodged.

I feel fortunate to have had the Aurora Internship experience and for this to have been with an ‘unstaid’ barrister like Andrew. 

For more information about the Aurora Internship Program, please visit http://www.auroraproject.com.au/aurorainternshipprogram.