Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020
Plain English Summary
Overview
This bill creates a legal framework to recognise Torres Strait Islander traditional child rearing practice (Ailan Kastom), under which children are permanently placed with cultural parents within the extended family. It establishes a new Commissioner to decide applications for cultural recognition orders that transfer legal parentage, so that a child's birth certificate and legal identity match their cultural reality. This is the first legislation of its kind in Australia.
Who it affects
Torres Strait Islander families who practise Ailan Kastom child rearing are most affected. Children and adults raised under the practice can have their legal identity updated to reflect their cultural parents, and cultural parents gain workplace leave entitlements.
Key changes
- Creates cultural recognition orders that legally transfer parentage from birth parents to cultural parents, with a new birth certificate issued to reflect the change
- Establishes an independent Commissioner (Meriba Omasker Kaziw Kazipa), who must be a Torres Strait Islander, to consider and decide applications
- Applications require consent from birth parents and cultural parents, verification by informed persons with knowledge of the practice, and a decision based on the child's wellbeing and best interests
- Adults who were raised under the practice as children can also apply in their own right
- Creates cultural parent leave entitlements of up to 8 weeks short leave and 52 weeks long leave, plus 2 days unpaid leave to prepare application materials, with dismissal protections for employees
- Strong confidentiality protections with penalties of up to 100 penalty units or 2 years imprisonment for unauthorised disclosure of information
Bill Story
The journey of this bill through Parliament, including debate and recorded votes.
▸Committee16 July 2020View Hansard
Referred to Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee
The Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee examined this historic bill, which is the first legislation in Australia to formally recognise Torres Strait Islander traditional child rearing practice (Ailan Kastom). The committee held public hearings across five locations including Townsville, Cairns, Bamaga, Thursday Island and Saibai Island, and unanimously recommended the bill be passed. While supporting the bill, the committee made five additional recommendations addressing education programs, Commissioner independence, birth certificate amendments, and criminal history information handling.
Key findings (5)
- The bill is the first of its kind in Australia to legally recognise Torres Strait Islander traditional child rearing practice and to incorporate Indigenous language into legislation.
- Stakeholders broadly supported the bill's intent, though some community members raised concerns about the complexity of the proposed legal process potentially deterring families from engaging with it.
- The committee found that the existing legal framework caused significant distress to Torres Strait Islander families by breaching community confidentiality through birth certificate documentation.
- Concerns were raised about the breadth of the 'best interests of the child' principle and whether it could import considerations from other legislation that may undermine the bill's intent.
- Some witnesses and LNP committee members expressed concern that the bill was rushed through Parliament with insufficient time for community consultation and understanding.
Recommendations (7)
- The committee recommends the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 be passed.
- The committee recommends that the Department of Aboriginal and Torres Strait Islander Partnerships prioritise the implementation of culturally appropriate, independent and supportive education programs, mindful of the sensitive nature of the Ailan Kastom process.
- The committee recommends that the department explore opportunities for independent counselling and support for people who may experience trauma as a result of their interaction with the legal recognition process.
- The committee recommends that the Department of Aboriginal and Torres Strait Islander Partnerships establish the offices for the Office of the Commissioner, in both Cairns and Thursday Island, in facilities separate to departmental offices to uphold the Commissioner's independence.
- The committee recommends that clause 124 of the Bill be amended so that section 44 of the Births, Deaths and Marriages Registration Act 2003 is further amended to explicitly instruct the Registrar to remove the names of the birth parents from the new birth certificate.
- The committee recommends that clause 124 of the Bill be amended so that section 44 of the Births, Deaths and Marriages Registration Act 2003 is further amended to ensure that the Registrar may give requested information relating to a closed entry for a person (who is the subject of the traditional recognition order, and while still a child) only with the consent of one or more of the cultural parents (and/or guardian).
- The committee recommends that proposed section 45 of the Bill be amended to ensure the destruction of any criminal history information received by the Commissioner occurs as soon as practicable after the information is no longer needed for the purpose for which it was requested.
Committee report tabled
▸Second Reading8 Sept 2020View Hansard
▸10 members spoke6 support4 mixed
As Minister for Aboriginal and Torres Strait Islander Partnerships, moved the second reading and outlined the bill's provisions, committee recommendations, and government amendments. Emphasised the bill as a historic milestone in recognising Torres Strait Islander cultural practice.
“The bill marks a historic and significant milestone in bringing together island custom with Queensland law, delivering on our commitment to reframe the relationship with First Nation Queenslanders and move forward with mutual respect and recognition of a Torres Strait Islander cultural practice that deepens and enriches the lives of our Queensland communities.”— 2020-09-08View Hansard
Confirmed the LNP would not oppose the legislation but raised concerns about the complexity of the process, the rushed time frames, the breadth of the 'best interests of the child' principle, criminal history check provisions, and unquantified implementation costs.
“Whilst the Liberal National Party will be supporting the passage of this legislation, there remain aspects and unaddressed concerns which could ultimately and adversely impact the intent of the legislation as well as the community's engagement with this proposed process.”— 2020-09-08View Hansard
As the bill's sponsor and the first Torres Strait Islander member of parliament, spoke passionately about the significance of legally recognising traditional child-rearing practice and the practical benefits for families who cannot obtain identity documents.
“At the end of the day, this bill means so much to those who are in a situation where they cannot get a passport or obtain identity documents we take for granted every day, like a driver's licence.”— 2020-09-08View Hansard
Congratulated the member for Cook and said it would be wrong to oppose the bill, but expressed concern that the process imposes an overly complex western legal system on an already established cultural practice, citing a simpler Canadian model as an alternative.
“If we are going to say to Torres Strait Islanders, 'We accept that what you have done has been happening since time immemorial and we accept that that decision includes the best interests of the child as part of the determination,' why are we imposing a western system of law which relitigates that and, in fact, gives the commissioner the right to refuse that application?”— 2020-09-08View Hansard
As Premier, spoke of the bill as the culmination of 30 years of work by Torres Strait Islander elders. Highlighted the practical hardships caused by the lack of legal recognition, such as inability to obtain driver's licences or vote.
“The sleepless nights of parents with adopted children are over. No longer will they toss and turn, worrying about having to produce identification documents to enrol their children in school or in TAFE.”— 2020-09-08View Hansard
Supported the bill but expressed fears it was rushed with only 90 minutes of debate, that the process is overly complex, and that the community may not widely engage with it. Cited community witnesses who expressed concerns about complexity.
“I really do hope that this bill and this process work for the people of the Torres Strait. They have been waiting a long time for legal recognition of their traditional adoption and child-rearing practices. I fear that it was rushed, I fear that it has not undergone proper consideration and consultation and I fear that as a result the community is settling for second best.”— 2020-09-08View Hansard
Spoke in support of the bill as a landmark achievement, emphasising that it demonstrates why inclusion and diversity in parliament matters. Praised the member for Cook and the Labor Party's championing of First Nation peoples' rights.
“If ever there was an example of why the principles of inclusion and diversity are so important in this place in terms of making laws for all Queenslanders then it is this bill delivered by the member for Cook, the first Torres Strait Islander elected to any parliament in Australia.”— 2020-09-08View Hansard
Supported the bill's passage but criticised the government for leaving the bill until the last possible day, calling it disrespectful to the communities it seeks to benefit. Raised concerns about the complexity of the process and the rushed committee inquiry.
“It is inexcusable for the government to have left this issue until so late in the term. This was a 2017 election commitment, but the bill was introduced on literally the last possible day for it to pass in this term of government without an urgency motion.”— 2020-09-08View Hansard
As ministerial champion for the Torres Strait, spoke of her personal engagement with Torres Strait Islander communities and the advocacy that led to the bill. Acknowledged the elders and working party members present in the gallery.
“I remember one particular meeting at the DATSIP office on Thursday Island where a passionate group of Torres Strait women said to me, 'Minister, we are Queenslanders and we are part of this country. Why do our laws not recognise us?'”— 2020-09-08View Hansard
As committee chair, spoke of the committee being deeply humbled to examine the bill. Noted the overwhelming support from Torres Strait Islander communities and addressed LNP concerns about rushing by citing Pastor David Gela's evidence that the bill had been 30 years in the making.
“I believe this bill also signals a significant and important step in our ongoing efforts of reconciliation between Aboriginal and Torres Strait Islander First Nations peoples and the broader Australian population.”— 2020-09-08View Hansard
▸In Detail8 Sept 2020View Hansard
Amendment to clause 36 to require information about how long the child has lived with cultural parents rather than how long the child has lived at the address, and amendment to clause 45 to require the commissioner to destroy criminal history information as soon as practicable after it is no longer needed.
Amendment to the preamble to replace 'been practised in the Torres Strait since time immemorial' with 'always been practised in the Torres Strait', in response to community feedback that the legal term was not culturally appropriate.