Hilbert Wienekamp

Justice Agencies
Summer 2010

Working for the Northern Australian Aboriginal Justice Agency (NAAJA, www.naaja.org.au ) in Darwin for just over three months has been both a challenge and a privilege. Above all, it was an exciting and rewarding experience.

At the time of my placement with NAAJA, I was employed as an articled clerk in Germany. German articled clerks work for the courts, the prosecution, solicitors etc on a rotational system. Towards the end of that course, the clerks get to pick one placement themselves, no matter where or in which jurisdiction – as long as the work is of a legal nature. This gave me the chance to combine my education with my passion for Australia and my interest in Aboriginal cultures. I am deliberately using the plural for the term culture here. Once more was I shown the diversity of Aboriginal people living in different areas. Already having gathered a superficial notion of this diversity on previous journeys around Australia, I had a rough idea of what to expect. However, this time I experienced these differences in much greater detail and got at least a bit of an insight into the social structures. I realised how much I don’t know and cannot know – due to these vast complexities which vary between all the cultures, I do not dare to imagine that I will ever be capable of knowing everything.

Hence, one of my key experiences was – once more – the importance of always being open-minded and not to judge Indigenous behaviours, customs and beliefs. No matter how strange they may seem at first glance: Behind everything there might be more wisdom than I may ever know.

I) How did I get all this to work?

My own contribution towards getting this placement was rather minor. Most credits go to the Aurora Project’s Native Title Internship Program (www.auroraproject.com.au). Based in Sydney, it has been founded for the benefit of assisting NTRBs as well as other organisations including Indigenous corporations, government bodies, community groups, not-for-profit and policy organisations. One of its tasks is to recruit legal, anthropology and some
social science volunteers (students and graduates) and permanent staff for organisations and programs whose work targets issues such as native title, social justice, policy development and human rights. The Aurora Project also examines why organisations like NAAJA have such a high turnover in staff (80 to 90 per cent a year) and tries to develop ways to keep them on more permanently.

The application process for the placement starts with an online application to the Aurora Project. They provide all the relevant information on their website. A phone interview followed, and I was proposed for a 3 month internship at NAAJA as part of my practical legal training. During this placement, the people at the Aurora Project looked after me and maintained a regular contact. I felt that at all times I had competent and genuinely caring partners who could have been a great support had any serious issues arisen. The only thing they couldn’t do for me was to find a place to stay in Darwin. A couple of NAAJA internal emails sorted that problem out very quickly though – the people at NAAJA were really helpful!

NAAJA has quite a lot of capacity to take on volunteers. During my placement, there were always several other volunteers. Some were Australian; some came from the US and the UK. It was not an issue that I am German and therefore my legal background is in a Civil Code System, not Common Law.

II) The structure of NAAJA

With approximately 40 lawyers and three offices in Darwin, Katherine and Nhulunbuy, NAAJA is currently the biggest law firm in the NT.
NAAJA is a non governmental, non profit organisation. It is funded by the Commonwealth Attorney General.  Being the Aboriginal legal aid for the Top End, NAAJA is an all rounder. In order to provide the best possible legal services to their clients, this all rounder is split into three sections: Criminal law, civil law, and the advocacy section. A Chinese Wall policy runs between the civil section and the criminal section, which essentially divides NAAJA into two legal practices. This is to avoid conflicts between clients and maintain confidentiality even for clients with competing interests. Thus, the criminal section can represent an offender, while it is still possible for the civil section to represent the client in a compensation claim for the crime. The Chinese Wall policy does not apply to the relationship of either the criminal section or the civil section towards the advocacy department.  However, due to this setup, volunteers can only work in either the criminal or the civil section, but must not rotate between these two. The exchange into Advocacy from either of the other two divisions is, however, possible. It is therefore helpful to make clear which of the divisions you will want to work in prior to the commencement of your placement. I had the impression that otherwise volunteers seem to end up in crime by default.

III) Tasks

The criminal section mostly deals with criminal defences, the Civil section with just about any civil matter, i.e. police complaints, motor accident compensation, worker’s compensation, coronial inquests, victims of crime compensation and family law. The Advocacy division establishes and runs a lot of programs targeting the prevention of alcohol and substance abuse as well as rehabilitation and integration of ex-prisoners.
I am only aware of two areas of law that NAAJA does not engage in: native title and purely commercial matters. Don’t worry, other organisations have taken on these tasks. The Aurora Project works together with most of them.

NAAJA offers its services in two ways: Clients can come to NAAJA, and NAAJA comes to the clients. They can come into the offices and get advice there, but the lawyers also do a lot of bush trips to remote communities on a regular basis. During these bush trips, the civil lawyers mostly provide legal advice in the communities. Their court appearances are usually limited to the courts which are located in Darwin.

The main task of the criminal lawyers during these trips is to defend their clients in bush courts.

NAAJA also visits clients in prison. They not only look after those people who were clients prior to their incarceration, but also take on new matters from inmates who have not been NAAJA clients before. Since approx. 85 per cent of all prisoners in the NT are Indigenous, the number of prison visits is significant.

Being the all-rounder described above, the lawyers deal with just about any legal issue that can arise for Aboriginal people. Hence, they encounter a lot of issues which one may consider as everyday law. However, an organisation like NAAJA is essential because the staff are aware of the difficulties which Indigenous people may encounter when dealing with legal issues, particularly when they live in remote communities and do not have the same access to resources and services as in larger cities.

The communities which get serviced by NAAJA are set out in the funding agreement. Other communities must not be serviced as they may not meet the criteria of being remote (i.e. the people can easily get access to other legal services), or they receive their legal services from another organisation similar to NAAJA.

IV) The NAAJA staff

While most of the NAAJA lawyers are not Indigenous, a significant number among the support staff are Aboriginal.

The Aboriginal people employed with NAAJA are usually the point of first contact. In the Darwin office, the receptionist, an Aboriginal lady, is a very friendly, highly competent and at all times calm. During bush trips, the Indigenous field officers are the ones to round up the people the lawyer needs to see. Thus, NAAJA takes care that during initial contact Aboriginal people look after Aboriginal people.

V) My tasks, responsibilities, and experiences

a) Office work
After a quick stint in crime, I worked in the Civil section which was a requirement for my German course.

Despite the Chinese Wall this transfer was possible. I immediately raised the issue and we agreed upon me working in Crime for two weeks and then moving into Civil. I was to keep away from intensive case work in order to avoid violating the Chinese Wall upon my transferral.
During these first two weeks I researched case law. I got to know the filing system and found the key to a defense of a NAAJA client (whose identity was not revealed to me – remember the Chinese Wall) by analyzing CCTV footage. In another instance I was more of a technological support staff member and got the CCTV footage DVD of a different case to work.

The crim team is a bit like a bunch of parrots in a positive sense: They’re all quite loud, joking and teasing each other and generally fun loving. The atmosphere in the office is quite vibrant. The crim team also has a duty office in the Magistrate’s building. The atmosphere there is quite electric, solicitors coming and going, rushing from one hearing to the next, clients dropping in and being interviewed just outside in the waiting area of the court.

Having worked there, I would never have expected that the variety of tasks in civil appeared to be even greater. It is much quieter in this section and the office atmosphere seems to have less thrill. The new desk was a bit crammed, just opposite the photocopier. Due to my work and the increasing responsibilities I was given over the time, I didn’t mind these circumstances at all.
In civil, my tasks varied a lot. I had to write a chronology on a case from the material on file, wrote memos to go on the internal wiki, consolidated a summary of evidence to be handed out to the relatives of a victim, checked a writ against the Coroner’s findings, drafted letters for the correspondence of solicitors with their clients. At some stage I was even trusted to draft an affidavit together with a client.

The above tasks were performed in the office. I always enjoyed being sent out or taken along to work elsewhere as well. A solicitor took me with her when discovering a large volume of documents which another party was in possession of. I delivered files and folders to Barristers and was trusted to inspect large volumes of documents at the Coroner’s office on my own.

b) Bush trips
Then, of course, there were the bush trips. Out there, my work adopted a much less academic nature – but was just as enjoyable!

The communities are all very different. I have seen those with no litter lying around at all, lush green lawns instead and plenty of sprinklers in order to keep it that way. Then there were communities with skeletons of dead Toyota Land Cruisers decorating the front yards. The camp dogs that walked around had holes in their ears, chewed in there by parasites.

During the first few trips I was probably more of a spectator, than of any actual use, except for the fact that I drove us out there in the 4WD. You travel through an absolutely amazing scenery. I still remember the magic of the moment when approaching the Arnhem Plateau in the early morning light on our way from Jabiru to Oenpelli. This meant getting us (and much more important: The vehicle! I would have hated to lose a Four Wheel Drive on NAAJA) through the East Alligator River at Cahill Crossing. And yes, the crocodiles are all over the place. Sometimes they even lie right in the ford.

aa) Preparation
Hanging out with the Client Services Officer (a respected Aboriginal man) whose job it was to organise everything in advance, paid off during my last two trips. He had fallen sick. The solicitors relied on me to fill his role. It was rewarding to be trusted with that job, but it does get you going!

A couple of days in advance I was given the names of the clients to be seen. Liaising with the council office in the relevant community and passing these names on to them was essential so that the council staff could assist us in notifying these people prior to our arrival. Just sending them a letter and announcing a date when the solicitor will be in town is not the most reliable method as clients may not pick up their mail at the post office or may have gone walkabout. Tracing them down can therefore be quite a challenge.

The locals, along with many other Indigenous peoples around the world, seem to have a different handling of time, which is why making an appointment with a client even just a couple of weeks in advance is not very effective. Dates and times according to the clock or the calendar do not seem to mean a lot to non-urban Aboriginal people. Their concept of time, and also their memory, appears to work a lot more along the lines of other circumstances which “frame” an incident. I saw it happen that when we asked a client about “the time of day” at which a car accident had occurred. She did not seem to understand the question. It was only when I asked her questions about where the sun was, or if the moon was shining, when all of a sudden she perked up and replied: “Ah, it was in the afternoon!”
Similar observations have been made during trials when Indigenous witnesses gave evidence. In one case, the evidence on the time of day was very inconsistent with all the other proof. It only started to make perfect sense when a lawyer stopped asking about the time according to the clock, but started asking about framing circumstances, i.e. whether it was the time of day when the children usually come home from school. In another incident, it was essential to have the Indigenous witness draw a picture of the moon.

bb) Bear in mind
Aboriginal people are peoples of story tellers. That’s how they pass on their knowledge and myths. That’s how they orientate themselves in the landscape, according to their traditional songs – they travel along the songlines!

I found it helpful to bear this in mind when communicating with people in the communities. Being story tellers, it can be of a great advantage if you give them a story, too. Your story. We needed help from a local person to find clients. Normally, in each community we have one or two locals to turn to and who NAAJA has worked with before. This time, they were unavailable. It was lunch time, hardly anyone around. One lady sat in the shade. I walked up to her, introduced myself, told her my name, that I worked for NAAJA in Darwin at the moment, whereas usually I work and live in Germany. I tried to give her information about my background, my “story”. Social structures can be very complex and may involve rules of not being allowed to talk to each other. Giving people your “story” helps them to allocate you within a social system, and thus enables them to talk to you more easily. After I had given this information to that lady, she seemed to open up. We sat down together, told her what we needed in order to do our work. She was a great support!

Another thing to consider when talking to clients is that sometimes you need to give them time to answer. Remaining quiet for maybe half a minute or a minute after being asked a question is their way of answering respectfully.

When going out to the communities, be open-minded. There may be a lot more behind the traditional laws, customs and beliefs, no matter how strange they may seem and regardless of whether they make sense at the time.

In particular, I am talking about legends and myths. At a number of occasions the investigation of those myths revealed an immense knowledge.

There is a certain terrain near Kakadu National Park. According to the locals, Namarrgon, the Lightning Man, lives there. He must not be disturbed. You may pass through his country, but you must neither take anything from that land nor leave anything behind. The country of another Indigenous clan is bordering onto this region. Within the area inhabited by this neighbouring tribe, there is a region called sickness country – you must not live on it. The locals believe that you will fall ill if you spend too much of your lifetime on that land. With these stories both tribes try to prevent their people from gathering the plants growing there or hunting the animals. Namarrgon must not be disturbed. It is Sickness country. A look at the map shows that both these “forbidden countries” are under the influence of a third terrain – where today there is the Ranger Uranium Mine.

cc) Check list before going out bush
Back to the preparation of the bush trips: Is the work mobile phone charged? Did we pack the laptop computer? Are all the accessories complete (charger, aircard, additional mouse)? It was my responsibility to ensure that we had enough pens, paper, forms. Send out the odd email to “All Staff” informing them about where we are going and giving them our work mobile number. Make sure that you have all the files you need to take – another email to “All Staff”, kindly reminding them to return the relevant files that you need to take and to put the files into the relevant tray by a certain time. Is there a fuel purchase card in the 4WD? And where do our staff live who we need to pick up on our way out of town? Are the interpreters booked?!

dd) Interpreters
Interpreters are a topic which is also quite relevant. NAAJA uses the services of the Aboriginal Interpreter Service (AIS, www.dlgh.nt.gov.au/ais ). Interpreters who have an AIS accreditation have sat interpreter exams in the relevant languages, which ensures a high standard. There are several hundred Indigenous languages and dialects. For some languages and dialects, there still may be no one who has obtained an AIS accreditation. At the time of my placement, AIS only had two interpreters who were qualified for the language Kunwinjku. This language is spoken in parts of Kakadu and Western Arnhem Land and therefore is relevant to a lot of NAAJA clients. If one interpreter is working in court while the other one is on duty out bush in Oenpelli, the NAAJA solicitor who needs to see a Kunwinjku client in jail has no chance of getting an interpreter, not to mention all the Aboriginal Legal Services which might also need a Kunwinjku interpreter.
When working together with interpreters, however, I had to forget a lot of what I’ve learnt before. I hold a NAATI interpreter accreditation myself and am familiar with the professional Code of Ethics. Essentially, an interpreter is just a voicebox in the other language and must not interfere with the communication between the parties as such. What the parties exchange, is not the interpreter’s information. The interpreter therefore has to refrain from developing or showing an interest in the information that is being exchanged. I am absolutely grateful that an AIS interpreter actually broke this rule during one of my client interviews. She suggested a few more questions to me which were really helpful and which I hadn’t thought of.

ee) Out bush
We did not always take the 4WD. One time I had to make sure that a taxi was booked to pick us up and take us to the airport. We flew into the community. Upon arrival, we got picked up and taken to the NAAJA donga (a kind of tin shed or container serving as an office and accommodation for the team of criminal lawyers). They exist only in some communities. The communities are on Aboriginal land. Remember that you are a guest wandering on their country. Therefore it is a matter of courtesy that at least one team member goes to see someone at the local council to announce that you have arrived. I also wanted to follow up the previous correspondence with the council office, find out how many of our clients they had managed to chase up. It was all looking very good. Once I had left the building again, still checking my list of names, an Aboriginal man approached me. He was not quite as tall as myself. The hair on his head and his beard were grey and slightly curly. I am hopeless at guessing someone’s age, but if you gave me a shot, I would say that he was in his fifties, more senior than myself. He looked at my name list and introduced himself by name. I tried not to look him straight in the eye. I had read in my introduction materials for this placement, that it is considered disrespectful among Aboriginal people if the younger ones look the elders straight into their eyes. I tried to adhere, but gee, it was hard.

I briefly blinked up and immediately turned my eyes back towards the ground, looking at the feet and legs belonging to the man I was talking to. But during that one blink into his face I had seen enough. He was looking straight into my face. This was his signal to me: It’s okay to look up. What followed then was a sentence from him that made me feel extraordinarily privileged:
“I am a traditional owner of this land, and I welcome you to my country.”
After a sincere handshake, we dedicated our attention towards the people on my list again. He was really helpful in rounding up the clients. As a traditional owner, he would have known at least a few of them!

I believe that he and the other people I worked with during the rest of that day, could sense my genuine respect. Maybe it was the efforts not to look them straight into the eyes, or they had some kind of an antenna for all the things that went on in my head, reminding myself that I was only a guest and hardly knew anything about them, their customs, that I didn’t dare to judge them. Or they could tell from the shape of my lips that I know how to play the didgeridoo all right. However, the cooperation between the locals and us on that day worked really well. Mind you, it was a mad house nonetheless. The majority of our clients dropped in, all of them at once, of course. With the donga already occupied, we sat in the dust or on the lawn outside. On my knees I tried to balance the form that needed to be filled in, interviewing clients. Children ran up behind me, tapped on the brim of my Akubra, giggled and dashed off again. Phone calls to the office, conflict checks on the laptop in the meantime. No time to eat. Sips of Powerade every now and then kept me going. A big Thankyou to the lab that invented this stuff! I was smart enough to put a bottle into the freezer on the night before. By now it was slightly thawed up, but still refreshingly cool.

One of the last clients for the day. NAAJA lawyers had seen her before. According to her file she spoke English well enough to go without an interpreter. As we discussed more and more issues regarding her matter, she started to struggle. I re-phrased the essential questions, tried to explain their contents. The lawyer back in Darwin desperately needed the answers. Stuck. Our interpreter had already left for the day, was caught up in an assignment at the bush court that was running at the same time. A solicitor, who noticed my troubles came in, asked the client whether there was anybody else outside the donga whom she would be comfortable with as an interpreter. Yes. We called him in. He sat down. I told him what I needed to know. His interpretation which followed amazed me. I was expecting to hear a language completely new to me, sounds amongst which I could not even determine single words. I was wrong. I understood every single word of what he said. The words were all in English. But the grammar was – strange. He repeated my questions, but only spoke in grammatically incorrect, sometimes even incomplete sentences. I am still not sure whether it was some kind of Pidgin English, maybe Kriol, or Creole? It doesn’t matter. His interpretation absolutely did the trick. Questions, which took me several minutes each to be asked and rephrased, were interpreted and answered within seconds.

When we were finished, the client smiled at me:
“Sometimes my English is good, and then again, for some matters, it is not. Normally, I speak Aboriginal language.”

I smiled back at her: “I am German. English is not my first language either. I know exactly what you mean.”

One client had not shown up. Someone knew where she lived. We went for a walk. She was not at home. My guide knew where she worked, so we walked on. She wasn’t there either. The guide wanted to ask one particular person about the whereabouts of the client. We stood at an intersection. Maybe twenty metres away from us, there was a house, with thick brick walls. The person who my guide wanted to ask could not be seen. It was quite noisy. Voices were in the air, mostly getting drowned by the sounds of a steamroller working nearby. I stood close enough to the guide to hear his gentle whistle, too gentle for me to attach any importance to it. The next thing that happened was that someone exited the brick house, looked at the guide and asked him what we wanted! The whistle was the call, perceived despite brick walls and noises. Until then, I only knew about this kind of communication from movies like “Follow the Rabbit Proof Fence”!

From what I have seen, a day out in the community is quite different for the NAAJA crime staff. Apart from rounding up clients, sometimes even taking them to neighbouring communities so that they have a place to stay without breaching a bail condition or a Domestic Violence Order, the solicitors mostly spend their time at the bush court which is usually held in a council building. These bush courts are held by the Magistrate, his or her clerk, and the Prosecutor, all of whom have made their way out to the community as well.  The court lists can be so long that, in ratio to the NAAJA solicitors who are currently out there, they may only have 15 minutes to deal with each client, including seeking instructions, representing him or her and explaining what it all means afterwards.

VI) Lasting impressions
The placement with NAAJA exceeded my expectations. As a volunteer, I tried to keep my expectations low, not eliminating the possibility that I might not have had the chance to do and experience anything of what I have described above. I was constantly impressed and overwhelmed in a positive way with everything that involved working for NAAJA. Looking at this article now, I think that the density and length reflect this.

I can only corroborate what a dear friend of mine said when he resigned from his job with NAAJA: “They throw you in at the deep end and give you more responsibility than you are really capable of handling. You then stuff up, but it’s okay. They pick you up again and you move on together.”  And guess what? I would have never thought that it would be my law degree that would take me out to Arnhem Land!

For further information on the Aurora Native Title internships program, take a look at their website at