Legal recognition of Torres Strait Islander traditional child rearing practice
The process for applying for legal recognition has not yet commenced. Announcements regarding the application process are expected to be made in the near future.
About the legal recognition of Torres Strait Islander traditional child rearing practice
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 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's education and health (for example).
It also means the child or adult will have the same legal rights as any biological children of their cultural parents, 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.
Outcomes of a Cultural Recognition Order
There are various legal outcomes if a Cultural Recognition Order is made including:
- the person’s parentage being transferred from the birth parents to the cultural parents
- the person becoming a child of the cultural parents
- the cultural parents becoming the parents of the person
- the person stops being a child of the birth parents
- a birth parent stops being a parent of the person.
What you need before you can apply for a Cultural Recognition Order
To apply for a Cultural Recognition Order for the legal recognition of Ailan Kastom (Torres Strait Islander) child rearing practice:
- at least one birth parent and one cultural parent must be a Torres Strait Islander person
- the birth and cultural parents must be adults at the time of the application
- the person's birth was registered in Queensland
- at least one birth and one cultural parent must be living at the time the application is made.
Consent to the application
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, consent must be provided by both birth parents and both cultural parents (and any applicable other carers).
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.
What if someone doesn't consent?
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 is made by the Court.
Dispensation of 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 eligibility criteria which must be met before you apply for a dispensation order.
Further information about the dispensation of consent application process will be made available soon.
Registration of birth
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 only 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.
Certified copy of birth certificate
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.
Birth parents and cultural parents need an informed person 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.
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.