Parliamentary Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 - for our children's children Report No. 40, 56th Parliament Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee August 2020 Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee Chair Mr Aaron Harper MP, Member for Thuringowa Deputy Chair Mr Mark McArdle MP, Member for Caloundra Members Mr Martin Hunt MP, Member for Nicklin Mr Michael Berkman MP, Member for Maiwar Mr Barry O’Rourke MP, Member for Rockhampton Ms Joan Pease MP, Member for Lytton Committee Secretariat Telephone +61 7 3553 6626 Fax +61 7 3553 6699 Email [email protected] Technical Scrutiny +61 7 3553 6601 Secretariat Committee Web Page www.parliament.qld.gov.au/Health Acknowledgements The committee acknowledges the participation of Ms Cynthia Lui MP, Member for Cook at the regional hearings in Bamaga, Thursday Island and Saibai Island from 5 to 7 August 2020. The committee also acknowledges the assistance provided by the Department of Aboriginal and Torres Strait Islander Partnerships and the Queensland Parliamentary Library. Images of woven mat provided with courtesy of, and consent from, Ms Isadora Akiba, Saibai Island, on 7 August 2020. Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 Contents Abbreviations iv Chair’s foreword v Recommendations vi 1 Introduction 1 Role of the committee 1 Inquiry process 2 1.2.1 Recognition of private nature of Ailan Kastom 2 Policy objectives of the Bill 3 An integration of traditional lore into law 3 Government consultation on the Bill 3 Estimated cost for implementation 4 Should the Bill be passed? 5 2 Background to the Bill 7 Cultural tradition and extended family 7 Current legal status of traditional adoption 9 2.2.1 Birth certificates 10 2.2.2 Succession law and disputes over estates 10 2.2.3 Challenge by birth parents of the custody of traditional parents 11 Variation in Ailan Kastom child rearing practice 12 2.3.1 Stakeholder views 12 2.3.2 Language of the Torres Strait Islands 13 2.3.3 Unity in traditional Ailan Kastom practice 14 3 Examination of the Bill 15 Definitions and terminology 15 3.1.1 Stakeholder views 15 Recognition of Ailan Kastom 16 3.2.1 Stakeholder views 16 3.2.2 Best interests principle 18 Commissioner (Meriba Omasker Kaziw Kazipa) and Office of the Commissioner 20 3.3.1 Establishment and appointment 20 3.3.2 Functions and powers 24 3.3.3 Office of the Commissioner (Meriba Omasker Kaziw Kazipa) 25 3.3.4 Independence of the Commissioner and Office of the Commissioner 27 3.3.5 Disclosure of conflicts of interest 28 3.3.6 Processing applications before the Commissioner 29 Application for cultural recognition orders 29 3.4.1 Stakeholder views 29 3.4.2 Eligibility and criteria 30 3.4.3 Dispensing with a person’s consent 35 3.4.4 Non-adult biological parents 37 Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee i Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 3.4.5 Withdrawal of application 38 Decision making process 38 3.5.1 Information to assist the Commissioner: criminal history report 38 3.5.2 Proposed process for deciding whether to make cultural recognition orders 41 3.5.3 What a cultural recognition order must state 43 3.5.4 Internal review 43 Issuing a birth certificate 44 3.6.1 Access to birth certificate and other information 45 3.6.2 Effect of cultural recognition orders 47 Discharge of a cultural recognition order 50 3.7.1 Stakeholder views 51 3.7.2 Department response 51 Appeals 51 Court proceedings 51 3.9.1 Stakeholder views 52 3.9.2 Department response 52 3.9.3 Court appointed experts 52 3.9.4 Right of representation 53 3.9.5 Evidence of a child 54 3.9.6 Other parties 55 3.9.7 Court record of proceedings 55 3.9.8 Offences and legal proceedings 56 Decisions and persons with impaired capacity 57 3.10.1 Stakeholder views 57 3.10.2 Department response 58 Confidentiality and access to information 58 3.11.1 Stakeholder views 60 3.11.2 Department response 61 Civil liability 62 Relationship with the Adoption Act 2009 and other laws 62 Unregistered births and engagement with cultural recognition process 63 3.14.1 Stakeholder views 63 Births, Deaths and Marriages Registration Act 2003 64 3.15.1 Stakeholder views 65 Consequential amendment of Acts 66 4 Compliance with the Legislative Standards Act 1992 67 Fundamental legislative principles 67 4.1.1 Rights and liberties of individuals 67 4.1.2 Institution of Parliament 74 Explanatory notes 75 5 Compliance with the Human Rights Act 2019 76 Human rights compatibility 76 ii Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 5.1.1 Equality Rights 76 5.1.2 Freedom of Expression 81 5.1.3 Taking part in public life 84 5.1.4 Property rights 87 5.1.5 Privacy and reputation 89 5.1.6 Protection of families and children 93 5.1.7 Cultural rights of Aboriginal peoples and Torres Strait Islander peoples 101 5.1.8 Right to a fair hearing 104 5.1.9 Precedents from Queensland or other jurisdictions 107 Statement of compatibility 108 Appendix A – Submitters 109 Appendix B – Participants at public departmental briefings 110 Appendix C – Witnesses at public hearings 111 Statement of Reservation 114 Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee iii Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 Abbreviations Adoption Act Adoption Act 2009 ARA Adoption Rights Australia ATSILS Aboriginal and Torres Strait Islander Legal Service Queensland Bill Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 BDMRA/BDMR Births, Death and Marriages Registration Act 2003 Commissioner Commissioner (Meriba Omasker Kaziw Kazipa) committee Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee CPA Child Protection Act 1999 CRC United Nations, Convention on the Rights of the Child DATSIP/department Department of Aboriginal and Torres Strait Islander Partnerships DDG Deputy Director-General HRA Human Rights Act 2019 ICCPR International Covenant on Civil and Political Rights LSA Legislative Standards Act 1992 PJCHR Parliamentary Joint Committee on Human Rights QIFVS Queensland Indigenous Family Violence Legal Service QHRC Queensland Human Rights Commission QLS Queensland Law Society Succession Act Succession Act 1981 TSRA Torres Strait Regional Authority UNDHR Universal Declaration of Human Rights UNDRIP United Nations Declaration on the Rights of Indigenous Peoples VCAT Victorian Civil and Administrative Tribunal iv Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020 Chair’s foreword This report presents a summary of the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee’s examination of the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) 2020. The Bill is truly historic as it is the first of its kind in Australia to ever recognise Torres Strait Islander traditional child rearing practice, or Ailan Kastom, and to also incorporate Indigenous language in an integration of ‘lore’ and ‘law’. I believe this Bill indeed also signals a significant step with regards to ongoing efforts of reconciliation between Aboriginal and Torres Strait Islander First Nations peoples and the broader Australian population. Only our collective efforts of truly recognising Indigenous and Torres Strait Islander traditional language and cultural practices will move us forward together as one, and this Bill certainly achieves all of these. I acknowledge the Torres Strait Islander communities of Townsville, Cairns, Bamaga, Thursday Island and Saibai Island for welcoming the committee and sharing their stories. For many submitters, recounting their deeply personal experiences of private and confidential family agreements was a traumatic process. On behalf of the committee, I wish to thank those individuals who generously provided their own stories to the committee. I am extremely thankful of the assistance provided by members of the Eminent Persons and the Kupai Omasker Working Party, who consulted extensively with communities prior to the introduction of this legislation, and for sharing their extensive knowledge of Ailan Kastom with the committee. We were assisted greatly by having Ms Ivy Trevallion not only appear at a public briefing in Brisbane, but also being in attendance at the Thursday Island hearing. We thank and acknowledge Ms Trevillion for her for ongoing advocacy and guidance provided to the committee. I also thank Hon Alistair Nicholson AO RFD QC and Paul Ban for their invaluable contribution to the committee’s inquiry. I wish to personally thank Ms Cynthia Lui MP, Member for Cook, for her participation in the inquiry and her attendance at the regional hearings in Bamaga, Thursday Island and Saibai Island. Our Committee learnt so much from these hearings, we are far better informed and deeply appreciative of the many shared personal and sacred stories told to us by many Torres Strait Islanders, who also shared their rich culture and traditions with members. I would like to thank our Parliamentary Service staff and the Department of Aboriginal and Torres Strait Islander Partnerships for their assistance throughout the committee’s inquiry. The words ‘Meriba Omasker Kaziw Kazipa’ are from the languages of the Eastern and Western islands of the Torres Strait, and can be translated as ‘for our children’s children’. The title of the Bill reminds us of the importance and significance of legally recognising Torres Strait Islander child rearing practice, an affirmation of Torres Strait Islander children’s cultural identity in Australian society.