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Australia: Bill Recognizing Indigenous Adoption Practices Passed in Queensland

(Sept. 15, 2020) On September 8, 2020, the Queensland Parliament passed the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, which legally recognizes for the first time in Australia the child adoption practices of Torres Strait Islanders, the indigenous people of the Torres Strait Islands in Queensland. “Meriba Omasker Kaziw Kazipa” translates to “For Our Children’s Children.”

The Act enables the family relationships of children traditionally adopted by relatives or other community members, through a practice called “Kupai Omasker,” to be formally recognized. Previously, children adopted in this way “could only take the name of their biological parents as cultural or kinship relationships were not recognised,” meaning that such children faced ”a myriad of identification and legal issues, resulting in difficulty getting a passport or drivers license or access to education, health, banking and housing services.”

The Queensland Department of Aboriginal and Torres Strait Islander Partnerships explained that

[t]he Act gives Torres Strait Islander families a process for making an application for legal recognition. If granted this will result in a permanent transfer of parentage from the biological parents to the cultural parents. Further announcements will be made in 2021 when applications open, and the Act comes into force.

The process to apply for a cultural order will ensure receiving parents can make parental decisions (for example, education and health) about their child without difficulty and the child will have the same legal rights as other children of the cultural parents, including inheritance rights.

The Act also promotes the right of Torres Strait Islanders to enjoy, maintain, control, protect and develop their kinship ties under the Human Rights Act 2019 [Qld], while still ensuring the protection of children in their best interests.

The key features of the Act are as follows:

  • A statutorily appointed and independent Commissioner, who is appropriately qualified and a Torres Strait Islander person, and who will decide an application for a cultural recognition order;
  • A cultural recognition order has the effect of a permanent transfer of parentage from the birth parents to the cultural parents;
  • Any decision under the Bill, including deciding to make a cultural recognition order, must be for the wellbeing and best interests of a person who is the subject of an application for a cultural recognition order and must be made for the wellbeing, and in the best interests, of the child;
  • Consent for legal recognition must be provided by the biological parents and cultural parents (where reasonably and appropriately available);
  • Suitability of the cultural parents means that the cultural practice as occurred has been verified by persons with knowledge and understanding of the cultural practice specific to the family’s community);
  • Information will be exempt from release through the Right to Information Act 2009 to preserve confidentiality; and
  • The Commissioner will have discretion to seek criminal history information about the cultural parents.

Upon the passage of the Act, Cynthia Lui, the first Torres Strait Islander elected to any Australian parliament, stated that

[f]or generations, Torres Strait Islanders have supported their children and each other in loving, supportive extended families.

Until now, these family relationships have never been fully recognised in law. This Act means children and adults who’ve grown up with traditional adoptive parents will finally have their legal identity match their cultural identity.

This supports and strengthens people’s connection to community and culture.

The Queensland parliamentary committee that considered that bill noted “the historic nature of this Bill, the first legislation in any Australian Parliament to include Torres Strait Islander languages, and the ‘first legal framework of its kind in Australia’.”