Aboriginal Law Bulletin
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by Paul Ban
The traditional practice of adoption of children by extended family members and close friends is widespread throughout Torres Strait Island society, both in the Torres Strait and on mainland Australia. Customary adoption is common to all Pacific island societies and has the intention of permanently transferring the care of a child from one set of caregivers to another. The practice of adoption is integral to Islander society and to the development of bonds which occur between the two sets of families. Torres Strait Islanders wish to gain legal recognition of their customary adoption practice as they are finding difficulties dealing with non-Islander bureaucratic and legal structures which exist on mainland Australia. This article will briefly outline the nature of Islander customary adoption and the reasons why State adoption legislation is not applicable to Torres Strait Islanders.
The cultural assumptions of the Queensland Government's definition of adoption will be outlined in relation to its treatment of Islander people, along with the implications of applying that definition to the Islander's request for customary adoption legalisation. Finally, the change of Government in Qld in 1989 has created some optimism for Islanders with positive statements being made regarding the recognition of customary practices of indigenous people. However, the process of recognizing customary adoption has so far been frustrating for Islanders and in danger of simply becoming rhetoric and not a reality.
Torres Strait Islander adoption is characterised by the following:
Islanders perceive that in white society 'adoption' provides adopters with legal security to raise a child as though that child were born to the adoptive family. They consider that their concept of permanence in traditional adoption also means that the adopted child becomes fully a member of the adoptive family; therefore they consider white adoption legislation is the most appropriate avenue by which to apply for recognition of their traditional practice. However, most Islanders are not aware of the confidential and closed nature of white adoption in Qld and are seeking the outcome of an adoption order without understanding the other legal implications of it. These implications include a severing of all ties between birth parent and adopted child and restrictions on private adoptions which have not been assessed and approved by social workers.
The previous Qld Government intended treating Islanders as similar to other Queenslanders wishing to utilise the adoption legislation. While acknowledgement was made that Islanders are culturally distinct from other Queenslanders, the Government did not extend the acknowledgement of the difference to legislation. The only concession was in the policy that cultural factors must be considered when placing an Islander child into a family apart from its family of origin.
Key workers from the Department of Family Services considered that Islanders would be disadvantaged by utilising a dosed system of adoption to legalise their open adoption practice.
Despite this view, Islander, adoptions have been considered eligible for legalisation under the adoption legislation if they conform to the implications of the Adoption of Children Act 1964 -1988 (Qld). These implications are that:
The Qld Government, through the Department of Family Services, stated that Islanders should seek an alternative legal order if they cannot conform to the criteria which form the basis for 'white adoption'. It was expected that Islanders would assimilate then adoption to white practice if in need of legal adoption recognition.
Islanders who chose to retain their traditional adoption practice were permitted to do so but were not given any legal support in doing so. Islanders have been offered the option of seeking guardianship and custody orders by the Government, as this offer is consistent with the option offered to white Queenslanders who wish to adopt a relative.
The Government considered that relative adoption is appropriate only in special circumstances and decided that Islander adoptions should be treated as relative adoptions. The offer of guardianship and custody orders has been rejected by Islanders as they consider that the orders do not provide the legal security they are seeking, and consequently have not pursued guardianship and custody as an alternative to adoption.
The result of the Qld Adoption Act being applied to Torres Strait Islanders is that Islanders do not receive recognition for their traditional adoption practice. Therefore Islanders do not receive an adoption service as their adoption practices are not considered eligible under the Adoption Act. If the Government considers some Islander adoptions to occur between relatives as defined by the Act, then people in those situations are discouraged from seeking adoption and are requested to seek guardianship and custody orders. If the Government considers the remainder of Islander adoptions to occur between non-relatives, then those situations are considered to be private arrangements which are not eligible for adoption legalisation within the white community. The Government applies the same criteria to Islanders as it does to the general population and considers private adoptions to contain inherent problems as they have not been assessed and approved by social workers.
Islander traditional adoption practice is likely to continue despite the absence of an adoption service, because traditional adoption performs a wider social function of reciprocity and obligation between family groups.
It is also likely that the insecurity regarding traditional adoptive arrangements will increase within the Islander community. The policy to treat Islander adoptions according to the same criteria as white adoptions was made by the Department of Family Services in 1985. Since that time there has been a continual build-up of frustration in the Islander community as cases have continued to arise where Islanders have felt insecure with traditional adoption practices which end up in disputes between the family of origin and the adoptive family.
Islanders are likely to develop an increased sense of frustration and powerlessness at not receiving the legal support they consider they need to support their traditional adoption practice. They are likely to experience powerlessness as a result of the Government maintaining social control through Government agencies and bureaucratic processes. The assimilationist stance taken by the Government regarding adoption legislation is likely to lead to tension and conflict between the two groups. Schermerhorn[2] confirms the tendency toward conflict if any government pursues a policy of assimilation while a minority resists that policy.
Beckett[3] has considered Torres Strait Islanders as 'Fourth World' people who have the political leverage to embarrass the Qld Government before national and international opinion.
Gartrell[4] believes that a minority group such as Tones Strait Islanders has the power to challenge the policies of Government and political leaders. This challenge can be effective in bringing about change if national and international audiences are receptive. Consequently, as a situation of conflict builds between Islanders and the Government, Islanders who are powerless to prevent the insecurity developing in their adoption practice may develop strategies to embarrass the Government. Powerless minorities are able to utilise this strategy when their identity and cultural survival are under threat. Islanders who consider traditional adoption as being an integral part of Islander culture under threat, have considered ways to raise their public profile over this and other related issues.
Prior to the change of government in Qld, a group of Torres Strait Islanders attended the Second International Adoption and Permanent Care Conference in Melbourne in November 1988 and presented a workshop on their traditional adoption practice. This event was the first time Torres Strait Islanders had formally described their customary practice to a non-Islander audience, and became the inspiration for further meetings in Qld following change to a more sympathetic government. In early April 1990, a workshop was held in Brisbane by Tones Strait Islanders to present their case for recognition of customary adoption to the Government. Senior members of the Department of Family Services attended, along with Aboriginal members of both the Aboriginal and Islander Child Care Agency and the Brisbane community. The purpose of the workshop was to discuss in some detail the practice of traditional adoption and to propose strategies for legislative change to support the continuation of traditional adoption.
Following the workshop, the Government, through the Department of Family Services, established a working party of Tones Strait Islanders to advise the Government on the most appropriate course of action. Over a twelve month period, the working party met infrequently and there were difficulties in deciding how the Government should appropriately consult Tones Strait Islanders regarding legal recognition.
The first Torres Strait Islander National Conference was held in July 1991 and the topic of recognition of traditional adoption occupied most of the first day of the Conference. A series of recommendations were made following a number of workshops, but the most significant was for Tones Strait Islanders to take control of their own consultation process, and to present the findings to the Government. This suited the Government as it provided them with a reason to abandon their own attempts to devise a consultation process which was acceptable to everyone. While it was appropriate for Islanders to choose to manage their own consultation, no guarantee of funding for consultation was made.
Since July 1991, Tones Strait Islanders have been waiting for the relevant Division of the Department of Family Services and Aboriginal and Islander Affairs to approve adequate funding for consultation. During that time, terms of reference for the consultation have been proposed and jointly agreed upon by the Government and Tones Strait Islanders. The areas to be covered include:
The second Torres Strait Islander National Conference was held in May 1992 and legal recognition of customary adoption was again raised in a shortened session of the Conference. It was evident by the response of Conference participants that they were waiting for action from the Qld Government. The reply from the Government representative at the Conference was that the Islanders should take their own initiative and tell the Government what legislative changes they require.
The Government was able to state that they are committed to recognition of customary adoption but are waiting for advice from Tones Strait Islanders as to how to proceed. Torres Strait Islanders know their own customary practice and the problems they face, but need assistance (primarily financial) to consult with their own people and employ legal and other help to present a submission for change to the Government.
The Qld Government under the National Party dealt with customary law issues from an ideological framework of assimilation. Consequently, requests by Torres Strait Islanders for legal recognition of customary adoption were outside the former Government's policy of dealing with indigenous people. As a result, Islanders knew where they stood, even though they did not agree with the Government's position. It is ironic that although the current Labor Government has publicly stated its support for the recognition of customs of indigenous people, Islanders have found themselves in the same situation as they were previously. While the Government maintains a stalemate position, Islanders are confused by supportive and encouraging rhetoric not backed by action.
[1] Ban, P., The Traditional Adoption Practice of Tones Strait Islanders and Queensland Adoption Legislation, Master of social WorkThrsis, University ofMelbourne,1989.
[2] Schermerhorn, R.A., Comparative Ethnic Relations, Random House, New York, 1970
[3] Beckett, J., Torres Strait Islanders: Custom and Colonialism, Cambridge, New York, 1987.
[4] Gartrell, B., "Colonialism and the Fourth World: Notes on Variations in Colonial Situations", Culture, Volume 6, 1986,3-17.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/2.html