This article was co-authored with Ming Kalanon.
On 16 July 2020, Cynthia Lui, the first Torres Strait Islander person elected to the Queensland Parliament, introduced a Private Member’s Bill supported by the Queensland Government to legally recognise the Torres Strait Island practice of customary adoption, titled Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 (For Our Children’s Children).
The Bill: Recognising Ailan Kastom
The Bill’s preamble recognises this Ailan Kastom (Island Custom), known as Kupai Omasker, as a custom that is ‘unique, ancient, integral and enduring’ and has been practised on the Torres Strait since ‘time immemorial’.1 This practice involves the permanent transfer of a child from their ‘birth parents’ to another family (‘cultural parents’ under the Bill), who become the child’s primary carers. The transfer is consensual, and the child adopts the name of the cultural parents.
The Bill also deals with numerous amendments to other legislation, relating to parental and annual leave entitlements and payroll tax, guardianship and powers of attorney, and the treatment of incest and child-stealing in Criminal Code Act 1899.2
Why is this Bill important?
Cultural and practical consequences
Under current law, where Kupai Omasker is not recognised, a child’s legal status is fundamentally misaligned with their actual family identity. This has cultural, social and practical legal implications, including difficulties associated with the child’s birth certificate, school enrolments, the issuing of drivers licences and passports, and inheritance and succession.
Under the current system, to try to rectify this situation, families are required to go to the Family Court to obtain a parenting order,3 which may “result in significant unfairness and undervaluing of traditional Aboriginal and Torres Strait Islander approaches to child rearing and shared ‘parenting’”. Further, going to Court may be associated with significant costs, in particular to adduce the relevant evidence that is capable of bridging across the cultural divide.4
The purpose of the Bill is to “enable Torres Strait Islander children who have been given under the cultural practice to participate fully in the political, economic, social and cultural life of Queensland”.5 The Bill achieves this by establishing a legal framework for recognising the cultural practice of Kupai Omasker – without determining whether it should or should not have occurred.6 Under the Bill, Torres Strait Island families can apply for a ‘cultural recognition order’, which if granted transfers the child’s parentage from the birth parents to the cultural parents,7 as if an adoption order had been made.8
Importantly the Bill establishes a new Office and Commissioner (Meriba Omasker Kaziw Kazipa),9 who must be a Torres Strait Islander person,10 who is empowered to decide applications for cultural recognition orders.
The first of its kind
That this Bill recognises Torres Strait Islander custom is reflected in the Bill’s title, the first to incorporate Torres Strait Islander language.11 The Bill is also the first of its kind in Australia, and one of few international examples,12 to ‘legally recognise Ailan Kastom of child rearing practice’.13
The origins of the Bill
The introduction of this Bill was a historic event, resulting from over thirty years of advocacy from Torres Strait Islander Elders, and in particular the late Uncle Steve Mam and the Kupai Omasker Working Party.14 Its introduction also fulfils a campaign promise from the Queensland Labor Government.
More broadly, this Bill follows numerous reports that considered the issue of recognising Aboriginal and Torres Strait Islander cultural practices in general law. For example, the 1991 Royal Commission into Aboriginal Deaths in Custody found that the responsibility of close kin is “probably one of the major mechanisms of social control in Aboriginal societies, but one that is least recognised or tolerated by the broader legal system”.15 In 1997, the Bringing Them Home report recommended that the Family Law Act 1975 (Cth) be amended to recognise and acknowledge the rights of Indigenous children to enjoy their own culture,16 a recommendation which the Family Law Council Report reiterated in 2004. This report also recommended that the Family Law Act be amended to recognise the “unique kinship obligations and child-rearing practices of Aboriginal and Torres Strait Islander culture”.17
While these recommendations were implemented in 2006,18 the current Bill progresses recognition of Indigenous customary practice further by providing an ‘administrative solution’ to recognise general parental responsibility for all purposes that circumvents the need to obtain a court order.19
Applying for a Cultural Recognition Order
To apply for a cultural recognition order for a child, the child’s birth must be registered in Queensland and at least one birth parent and one cultural parent must be a Torres Strait Islander person.20 Each of the child’s parents (birth and cultural parents) must apply,21 meaning that the full, free and informed consent of the parties is central to the application.22 However, where an application is blocked because consent from one of the parties cannot be obtained, the applicants may seek a Court order to dispense with the need for that consent.23
Importantly, a person may also apply for a cultural recognition order for themselves, to recognise their cultural parentage if they are an adult at the time of the application.24 This means that the Bill will apply to both current and future generations of Torres Strait Islander people.
In administering the Act and determining applications for cultural recognition orders, the Commissioner must apply the Act’s main principle:25 the wellbeing and best interests of the child or person the cultural recognition order is made for, including, amongst other factors, the legal and cultural benefit for the child or adult if the Ailan Kastom is recognised.