The process for applying for legal recognition is now open.
Torres Strait Islander people can apply for legal recognition of Ailan Kastom (Torres Strait Islander) child rearing practice under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.
The application for legal recognition seeks a Cultural Recognition Order to enable a permanent transfer of parentage from the biological (birth) parents to the cultural parents and for the child’s or adult’s legal identity to reflect their cultural identity and lived experience.
In the case of a child, a Cultural Recognition Order allows cultural parents to make legal decisions about their child such as education and health.
It also means the child or adult will have the same legal rights as any other children, including inheritance rights.
Applying for a Cultural Recognition Order is voluntary, consent-based and choosing not to apply will not affect what has happened at a cultural level.
This guide has information about what you need before applying for a Cultural Recognition Order, how to apply, and what happens after you apply.
There are various legal outcomes if a Cultural Recognition Order is made including:
To apply for a Cultural Recognition Order for the legal recognition of Ailan Kastom (Torres Strait Islander) child rearing practice:
There are various reasons for why you might not be eligible to make an application for a Cultural Recognition Order in addition to not meeting the above requirements such as:
If you need further information on the eligibility requirements, please contact the Meriba Omasker Kaziw Kazipa Program Support Office on 1800 571 102 or office@ocmokk.qld.gov.au.
Applying for legal recognition of Ailan Kastom child rearing practice is a consent-based process that requires all parties’ fully informed consent.
In order for the Commissioner (Meriba Omasker Kaziw Kazipa) (the Commissioner) to consider an application for a Cultural Recognition Order, both birth parents and both cultural parents (and any applicable other carers) must provide full, free and informed consent when making the application.
In the case that a birth parent or cultural parent is deceased, an application can still be made as long as consent is provided by the living parents.
If consent is not provided by all living parents, the Commissioner will not be able to consider the application for legal recognition, unless a dispensation of consent order is made by the Court.
It is recognised that there may be circumstances where applicants may be unable to obtain consent.
An application for dispensing with the need for the consent of a parent can be made to the Court. Following consideration of this application, the Court may make a dispensation order which removes the need for that parent’s or another carer’s consent as part of the application for legal recognition.
There are certain criteria which must be met before you apply for a dispensation order.
It is recommended that you seek legal advice about dispensation of consent. Legal services will also be able to provide you with information on how to apply for a dispensation order. You can also contact the Meriba Omasker Kaziw Kazipa Program Support Office on 1800 571 102 or office@ocmokk.qld.gov.au for further information.
It is important to note that family disputes or other family law matters are outside the scope to the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.
The Family Court deals with family law matters and may be of assistance:
Read more about registering a birth in Queensland.
An application for a Cultural Recognition Order can only be made if the child’s or adult’s birth was registered in Queensland.
You can apply for a Cultural Recognition Order for a child once the child's birth has been registered for 30 days or more. Birth registration is free but can sometimes be complicated.
If you need help, speak to your local community organisation, or call the Registry of Births, Deaths and Marriages on 13 74 68.
The birth registration has to name the birth parents as the parents, however there is no rule that the child has to take the surname of the birth parents. They can be registered in the names they use now and will keep in the future.
Read more about applying for a Queensland birth certificate.
To apply for a Cultural Recognition Order, you will need a certified copy of the subject person's Queensland birth certificate.
The person applying for a birth certificate has to provide identification. If you can’t access the kinds of identification that the birth certificate application form is asking for, call the Registry of Births, Deaths and Marriages on 13 74 68 so they can help with alternatives.
Make sure you state that the certificate is for an application for a Cultural Recognition Order as it may be issued at no cost.
An informed person is someone who has knowledge and understanding of the specific Ailan Kastom child rearing practice that occurred in relation to the application and can verify that the arrangements occurred in accordance with Ailan Kastom.
Birth parents and cultural parents need an informed person/s to confirm the Ailan Kastom child rearing practice has occurred.
Informed persons will be required to fill out a section of the application form for a Cultural Recognition Order and make a declaration of consent and statement to the application.
An informed person could be a family member such as a grandparent. The informed person for birth parents and cultural parents can be the same person.
There may be situations where a child is subject to certain orders such as a final adoption orders under the Adoption Act 2009, or an order under the Family Law Act 1975 (C’wlth) or the Child Protection Act 1999.
Persons granted parental responsibility under these orders will also need to provide consent for Cultural Recognition Order applications.
Before you complete an application for a Cultural Recognition Order, it is important that you have considered how this decision will affect everyone involved. Given the permanent nature of a Cultural Recognition Order it is recommended that independent legal advice is sought.
Check that you are eligible to apply for a Cultural Recognition Order.
There are two types of applications for a Cultural Recognition Order, a child application and an adult application.
If you decide to go ahead and submit an application you will need to ensure the correct application form is used, either:
or
As part of the application process, all parties to the application must consent to the application for it to be submitted. Consent must be informed and freely given by each party.
Informed consent is considered to be given when a person (adult applicant, birth parent, cultural parent) fills out the relevant section of the application form and signs the declaration.
Parties to an application relating to a child include both birth parents and both cultural parents. Where an order such as final adoption orders exist, other carers are also considered a party to the application.
Parties to an application relating to an adult include the adult applicant, both birth parents and both cultural parents.
A signed statement is where a section of the application form is filled out by the relevant party and then signed by that party. This signature needs to be witnessed by an authorised person.
For an application relating to a child, the statements made by the birth and cultural parents include:
For an application relating to an adult, the statements made by the birth and cultural parents include:
The cultural parents, birth parents and the informed person are required to provide information about the nature of the Ailan Kastom child rearing practice that occurred. This is information about the specific Ailan Kastom child rearing practice that occurred in relation to the application and to confirm that the transfer of parentage occurred.
Both the cultural and birth parents for a Cultural Recognition Order relating to a child are required to provide in the application reasons why they consider that a Cultural Recognition Order will be in the best interests of the child. They are also required to make a declaration to confirm that they are not aware of any details that may be detrimental to the child’s best interests and wellbeing.
The Commissioner may request a Criminal History Report from Queensland Police Services on a Cultural Parent as part of their consideration of an application for a Cultural Recognition Order relating to a child.
The Application for a Cultural Recognition Order relating to a child requires the Cultural Parents to acknowledge that the Commissioner may request this report. Cultural parents provide their consent to the report by signing the application. This acknowledgement and consent to a criminal history check is made within the statement and declaration section of the Application.
It is important to note that having a Criminal History Report does not mean a Cultural Recognition Order will not be made.
As part of the application form, every person who fills out a section needs to sign the form to declare the information is true. These signatures must be witnessed by an authorised witness such as:
Certified copies of at least 2 documents are required as proof of identity for cultural parents, birth parents, informed persons and other carer (if applicable).
Proof of identity documents may include any two of the following:
(See Schedule 1: Documents for types of documents you may use.)
As part of the application, a hard copy of the certified birth certificate must be provided with the application. A photocopy of a birth certificate can be certified by:
An Addendum form to an application for a Cultural Recognition Order can be filled out and submitted with both child and adult applications for Cultural Recognition Orders.
The information contained in this form will ensure that the Cultural Recognition Order and the new birth certificate about a person who is the subject of a Cultural Recognition Order includes the necessary information to reflect the change in parentage to the cultural parents and other information required in a birth certificate.
The information collected on this form will only be shared by the Commissioner to the Registrar of Births, Deaths and Marriages if a Cultural Recognition Order is made. It is encouraged that this form is completed with the application to allow for the Registrar to make a complete birth entry.
Before you submit an application for a Cultural Recognition Order, it is essential that the application form is completed with all necessary documentation provided.
Also, the information you provide must not be false or misleading as this could result in a Cultural Recognition Order being discharged.
Have you:
A child application checklist and an adult application checklist have been created to assist applicants to ensure all requirements are met before submitting an application.
If you wish to speak with someone before submitting your application you can also contact the Meriba Omasker Kaziw Kazipa Program Support Office on 1800 571 102 or office@ocmokk.qld.gov.au for further information.
It is recommended that before you submit an application for a Cultural Recognition Order all parties seek legal advice given the permanent nature of a Cultural Recognition Order. This advice can be sought from any legal practitioner; however, the following legal service providers have received funding to provide free advice to clients regarding Cultural Recognition Orders:
You can submit your application via post or in person:
Once an application has been submitted each person involved in that application (adult applicant, cultural parents, birth parents, other carer) will receive an acknowledgement confirming that the application has been received by the Office of the Commissioner. This acknowledgement will be sent by letter or email depending on your stated preference.
The application will be stored in a client management system (database) managed by the Office of the Commissioner. The Commissioner will consider each application to decide whether to make a Cultural Recognition Order.
Your receipt of acknowledgment will contain a Unique Identification Number (UIN) and you may use the UIN to check on your application’s progression with the Office of the Commissioner.
There may be circumstances where the Commissioner considers a conflict of interest exist in relation to an application for a Cultural Recognition Order. This may include (but not limited to) having a family or financial relationship with persons involved in an application. Where a conflict of interest exists, an alternative decision maker will be assigned, by the Minister, to consider the application.
If a party to an application has concerns that the Commissioner may have a conflict of interest, such as a familial, financial or some other relationship, there is a designated section on the application forms to detail this information so that the Commissioner is made aware and acts accordingly.
The Commissioner will consider the wellbeing and best interests of the subject person (the child or adult) to an application to determine whether to make or not make a Cultural Recognition Order. Each party to an application for a Cultural Recognition Order must participate in the Commissioner’s consideration of the application in good faith.
The Commissioner will consider applications for Cultural Recognition Orders in accordance with any guidelines and will make a decision in a reasonable time.
Key considerations for the Commissioner will be to ensure all parties have provided full, free and informed consent when making the application and appropriateness of any relevant documentation provided.
The Commissioner may seek further information or documentation from an applicant to assist in deciding whether to make a Cultural Recognition Order. Requests for further information will be provided to applicants by notice in writing via the preferred communication method (post or email).
The notice will outline the information or documents requested by the Commissioner. This may include ID documents, court orders, birth certificate (if there are issues with the birth certificate provided by the applicants—such as not being properly certified or not being a hard copy of the certified document).
The applicant has 30 business days to provide the requested information however, if more time is needed applicants may request an extension or the Commissioner may extend the period on their own initiative.
If the Commissioner requests a Criminal History Report on a cultural parent, the parent will be informed about the request by letter and provided a copy of the report.
A cultural parent has 30 business days after receiving the letter to provide the Commissioner with information or documents about any information contained in the report.
A cultural parent may request to extend the 30 business days. Download a request for an extension template.
Consent to an application can be withdrawn as long as it is before the Cultural Recognition Order has been made. Any party to an application may withdraw their consent, this includes birth parents, cultural parents and adult applicants.
If a party decides to withdraw their consent, they must provide notice of their withdrawal in writing to the Commissioner. Download an example template for the notice of withdrawal.
The application for the Cultural Recognition Order will end once the Commissioner receives the notice of withdrawal and parties to the application will be informed that the application has ended.
The Commissioner will write to all parties to the application on making a Cultural Recognition Order and will provide:
The Commissioner will provide the Cultural Recognition Order to the Registrar of Births, Deaths and Marriages. The Registrar will register the transfer of parentage as stated by the Cultural Recognition Order and close the previous birth entry of the person.
When the Commissioner has made a Cultural Recognition Order and provided it to the Registrar of Births, Deaths and Marriages, the Addendum Form will also be provided. The new birth certificate will include the details on the Cultural Recognition Order, and the additional information in the Addendum Form including listing the name of the cultural parents as the parents.
In order for a new birth certificate to be issued to the cultural parent or adult applicant, they will need to submit an application for a birth certificate to the Registry of Births, Deaths and Marriages.
If you have any questions or require assistance applying for the new birth certificate you can call the Registry of Births, Deaths and Marriages on 13 74 68.
An application to reverse (or discharge) a Cultural Recognition Order can be made by any party to the original Cultural Recognition Order application (including the child or adult subject to the Cultural Recognition Order, birth parents, or cultural parents).
However, an application to reverse (or discharge) a Cultural Recognition Order can only be made:
If a party is considering applying to discharge a Cultural Recognition Order, then an application must be made to the court.
It is recommended that you seek legal advice about reversing a Cultural Recognition Order. Legal services will also be able to provide you with information on how to apply to reverse a Cultural Recognition Order.
The Commissioner will write to all parties to the application if a Cultural Recognition Order is not made and will provide a statement of reasons for this decision.
There is an option for applicants to apply to have the Commissioner’s decision internally reviewed.
An Application for an internal review must be made to the Minister for Aboriginal and Torres Strait Islander Partnerships and must be made on the correct form. The application for an internal review must be made within 20 business days after the Commissioner has provided the statement of reasons for not making a Cultural Recognition Order. Although, you can apply for an extension if needed.
Once you submit an application for internal review, the Minister will appoint a review officer within 20 business days of receiving an application. Following this, the application will be reviewed with fresh eyes as if the first decision never occurred. The review officer will either confirm the Commissioner’s decision or revoke the Commissioner’s decision and make a Cultural Recognition Order.
If applicants are unhappy about the Review Officer’s decision, then they may be able to apply to the Supreme Court of Queensland for a statutory order of review under the Judicial Review Act 1992.
Information relating to an application for a Cultural Recognition Order or the Order made by the Commissioner is restricted.
Adults who were a subject of a Cultural Recognition Order (either as a child or adult), cultural parents, birth parents and guardians are able to request information relating to the Cultural Recognition Order or application as set out by the Act.
Under section 103 of the Act, if you are an applicant to a Cultural Recognition Order application you may apply for access to restricted information relating to that application. If you are an adult who was a subject of a Cultural Recognition Order as a child, you are not able to apply for information under this section of the Act.
Restricted information about the application includes:
To receive a copy of restricted information, you may apply in writing to the Commissioner using the application for information form. You will need to submit certified copies of 2 proof of identity documents as part of your application. The Commissioner will then consider your request and notify you of their decision in writing.
Under section 64 of the Act, a request for information relating to a Cultural Recognition Order which has been made by the Commissioner may be made by the following people:
Information available from Births, Deaths and Marriages includes:
In order to make a request to the Registrar Births, Deaths and Marriages, you must first obtain authorisation from the Commissioner.
You can request authorisation from the Commissioner in writing using the request for Commissioner authorisation form. In your request, you must outline the type of information you are seeking from Births, Deaths and Marriages and provide certified copies of 2 proof of identity documents.
The Commissioner will provide a written response to your request. If authorisation is granted, the written response will include the authorisation letter which you must provide with any application to the Registrar of Births, Deaths and Marriages.
Legal recognition of Torres Strait Islander traditional child rearing practice, 06 Sep 2021, [https://www.qld.gov.au/firstnations/family-social-support/torres-strait-islander-traditional-child-rearing-practice]
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