The Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 (Qld) (the Act) provides legal recognition of Ailan Kastom child rearing practices in the Torres Strait.
Background
Shared child rearing – often among extended family members – is a common and enduring Torres Strait Islander cultural practice. The practice is an integral part of Torres Strait Islander community and family life and is strongly connected to other aspects of customary law. Under Ailan Kastom, parentage may be permanently transferred from the biological parents to the cultural parents by way of verbal agreement for a variety of reasons, including to maintain bloodlines, strengthen bonds between families and allow a couple experiencing infertility to raise a child.
Problems addressed by the legislation
Torres Strait Islander people have long called for legal recognition of these practices. The inability to obtain a birth certificate that reflects traditional adoption arrangements can cause a number of issues including:
Uncertainty regarding cultural parents’ authority to make parenting decisions (medical, educational etc.) for their child
Distress where the child is unaware of their traditional adoption
Succession disputes
Custody issues
In 2017 the Queensland government committed to introducing legislation on traditional child rearing practices. The Act was passed after extensive consultations with cultural leaders and experts in the Torres Strait, community meetings and closed meetings with individuals and families. The Act promotes the right of Torres Strait Islanders to enjoy, maintain, control, protect and develop their kinship ties under the Human Rights Act 2019 (Qld).
Provisions
The Act outlines a process by which Torres Strait Islander families caring for non-biological children can apply for legal recognition. They key features of the Act are:
A statutorily appointed and independent Commissioner, who must be a Torres Strait Islander person, decides applications for cultural recognition orders;
A cultural recognition order has the effect of a permanent transfer of parentage from the birth parents to the cultural parents;
The Commissioner, in making their decision, must consider the wellbeing and best interests of the child;
Consent for legal recognition must be provided by the biological parents and cultural parents (where reasonably and appropriately available);
Information is exempt from release through the Right to Information Act 2009 to preserve confidentiality;
The Commissioner has discretion to seek criminal history information about the cultural parents.
Impact
Legal recognition results in a permanent transfer of parentage from the biological parents to the cultural parents. This ensures cultural parents can make parental decisions about their child without difficulty and ensures the child has the same legal rights as other children of the cultural parents, including inheritance rights. It will also make it easier for traditionally adopted children to obtain other legal documents, such as drivers’ licences and passports, in their name. The Act was welcomed by Torres Strait Islander people who said legal recognition of Ailan Kastom child rearing practices was long overdue.