Accommodation or appropriation?

Despite claims Queensland’s new child rearing bill will empower communities in the Torres Strait, on closer inspection, its measures have many shortcomings, Jennifer Corrin writes.

Queensland’s Meriba Omasker Kaziw Kazipa (Torres Strait Islander Child Rearing Practice) Bill 2020 has been hailed as ‘a momentous step forward in the (Queensland) government’s journey to a reframed relationship with First Nations’ people which acknowledges the strength of Torres Strait Islander culture.’

It is claimed the Bill will be a ‘step towards legal recognition of Torres Strait Islander families’ continued use of traditional child rearing practice’. However, on close examination it is apparent that, rather than recognising the unique and traditional child-rearing practices of Indigenous communities in the Torres strait, known as ‘Kupai Omasker’, the Bill provides a framework of arrangements that will result in children being ‘registered’, essentially equating to state adoption.

In particular, the Bill provides that on the making of a cultural recognition order a child legally ‘stops being a child of the birthparents’ and a birth parent, ‘stops being a parent’.

So, although the Bill is said to recognise shared child rearing in these communities, the legal relationship between birthparents and members of their extended family, who usually do the shared child rearing, is severed. From a state law perspective, this applies for all purposes, including inheritance.

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For Torres Strait Islanders living in the Torres Strait or the northern peninsula of Queensland, the Bill also presents a stumbling block to registration, in that one of the prerequisites for application is a certified copy of the child’s birth certificate. In fact, a large number of births in the region are unregistered.

On top of this, the Bill dictates that disputes arising in the process of an application to register are to be heard by a Children’s Court judge or a District Court judge, with an appeal to the Court of Appeal. This brings into play complex rules of procedure, including the state’s Uniform Civil Procedure Rules of 1999, and makes proceedings subject to any applicable rules made under the Childrens Court Act of 1992.

Whilst the Bill frees such a court from the shackles of the formal rules of evidence, proceedings will still be underpinned by an adversarial system that pits parties against each other in a manner ill-suited to the determination of disputes involving customary laws and cultural practices.

Further, for those living in the Torres Strait or far-north Queensland, there is the question of practical access. Only Thursday Island has a permanent court building, and there is no resident judge. There is currently no resident magistrate either, but a magistrate from Cairns visits the islands about four times a year on circuit, and sits about once a month on Thursday Island.

However, the Bill requires proceedings to be heard by a Childrens Court judge, and the District Court only sits on Thursday Island about once a year. It also sits on Palm Island and in Bamaga, at the tip of Cape York, from time to time. The nearest practical option outside of this is in Cairns, over 800 kilometres from Thursday Island. This is also the nearest permanent District Court and Supreme Court registry, where applications for a hearing must be filed.

As one positive step, the Bill does step away from the state mould in allowing adults reared in according to traditional custom to be adopted, putting an end to their ambiguous legal status.

Also, getting the issue of recognition of traditional child rearing practice before the Queensland parliament is in and of itself a momentous achievement, and this is the first time that a Queensland Bill has had a title incorporating Indigenous language.

However, despite its intentions, and some positives, the Bill fails to deliver an holistic solution that reflects the unique sharing of responsibility for the child in Torres Strait Islander communities. For now, it merely provides a pathway to the state form of adoption, rather than a vision for a permanent legal framework that understands and recognises Kupai Omasker.