Ban, Paul --- "Slow Progress: the Legal Recognition of Torres Strait Islander Customary Adoption Practice" [1997] IndigLawB 100; (1997) 4(7) Indigenous Law Bulletin 11

Slow Progress: The Legal Recognition of Torres Strait Islander Customary Adoption Practice

By Paul Ban

This article should be read in conjunction with three previous articles which outlined the developments regarding legal recognition of Torres Strait Islander customary adoption practice (Aboriginal Law Bulletin (‘ALB’) Vols 2(60), 3(66) and 3(78)). Following almost three years of little activity, since Torres Strait Islanders presented a consultation report on customary adoption (‘The Tree of Life’)[1] to the Queensland Government, there has finally been some progress. This article summarises the dealings of Torres Strait Islanders with the Queensland Government surrounding this issue over the past thirty years, and outlines developments which have occurred this year.

Torres Strait Islander identity

Torres Strait Islander people number approximately 38,000, comprising 10% of Australia’s indigenous population, which, in turn, is around 2% of the Australian population. Although small in number, Torres Strait Islanders have a strong determination to be recognised as a people with a unique Torres Strait Islander identity. This was clearly evident during the border dispute between Australia and Papua New Guinea in 1975, when they lobbied successfully against a proposal to move the border 10° to the south, right through the middle of the Torres Strait Islands.

Torres Strait Islander customary adoption involves the permanent rearing of children by extended family members on a frequent basis, as opposed to adoptions in the wider Australian community, which occur relatively infrequently and which involve legal transactions between strangers (see ALB 2(60)). It is an integral part of Torres Strait Islander family life, and is strongly connected to wider aspects of customary law which define the identity of Torres Strait Islander people. Its legal recognition would thus affirm and strengthen the identity of Torres Strait Islanders as a unique indigenous minority within Australian society.

Historical treatment by Queensland Government

Torres Strait Islanders have requested that the Queensland government recognise their customary adoption practices since the 1960s. Since that time, they have been repeatedly assured that the government was attempting to address their concerns. Until 1985, government policy was to ‘rubber stamp’ Torres Strait Islander adoption practices, whilst insisting that they were subject to the same adoption laws as everyone else and should not receive separate services. The differences between a custom which ensured that children remained within their extended family, and the effect of the adoption legislation which severed the links between natural and adoptive parents, were overlooked.

In 1985, the Queensland Government, through the Department of Family Services, withdrew its inadequate ‘rubber stamping’ service, refusing to process adoption applications unless they were processed formally and publicly through social workers, rather than privately within the family.

Since that time, under mounting pressure from Torres Strait Islanders for legal security regarding their custom, there has been a developing understanding of the lack of fit between Torres Strait Islander customs and adoption legislation. In the late 1980s, a Torres Strait Islander Working Party was formed to work toward legislative recognition following a Masters of Social Work thesis which I com-pleted.[2] After a long period of National Party government under the leadership of Joh Bjelke–Petersen, a change of government at the end of 1989 to the Australian Labour Party (ALP) led by Wayne Goss, gave Torres Strait Islanders hope that effective political action reflecting indigenous customs might follow.

The Goss ALP government committed itself to the issue, and various meetings and workshops aimed at finding ways of using the existing legal system to assist the Torres Strait Islanders were held between the Islanders and Queensland Government bureaucrats in the early 1990s. Terms such as ‘custody’, ‘guardianship’ and ‘fostering’ were discussed in the search for appropriate legal terminology, but these were rejected by Torres Strait Islanders, who insisted upon the greater legal security and permanence which accompanied the term ‘adoption’.

In 1993, the consultation process which led to the ‘The Tree of Life’ Report was conducted. The Report outlined the problems Torres Strait Islanders were facing trying to maintain customary adoption without appropriate legal recognition, such as disputes over adopted children where there was no documented indication as to whether the child was meant by the natural parents to be raised by the caregivers (almost always the extended family) on a temporary or permanent basis (see ALB 3(66)). It discussed a range of options available to them and to the Queensland Government including, for example, amendments to birth certificates, and was officially handed to the Queensland Government for a response in June 1994 (see ALB 3(78)).

In early 1996, however, there was another change of government in Queensland which brought the National Party back into power, and progress was minimal until early 1997. Meanwhile, information and documentation on this issue had been accumulating in an ever–expanding file over a period of thirty years. Whilst the legal recognition of a customary family practice had sounded so straightforward, this was certainly not the case in its bureaucratic implementation.

Workshop on Customary Adoption, April 1997

On 15–17 April 1997, a statewide Workshop on Customary Adoption, funded by the Queensland Government’s Office of Aboriginal and Torres Strait Islander Affairs and Department of Family Youth and Community Care, was held in Townsville. It represented the most progressive advance since ‘The Tree of Life’ consultations, as Torres Strait Islanders from the mainland and the Islands and from interstate came together to focus specifically on customary adoption over a three day period. Whilst traditional adoption had always been on the agenda at the previous six Torres Strait Islander National Conferences, insufficient time had been allowed for participants to fully address the issues. Building on discussion concerning issues such as birth certificates, wills and inheritance, and disputes over the custody of adopted children, which had occurred in relation to ‘The Tree of Life’ report, strategies were developed to resolve customary adoption issues, such as the setting up of a Tribunal of Torres Strait Islander elders to resolve adoption disputes or to confirm adoptions formally. The workshop confirmed previous findings on the high frequency of customary adoption within the community, and provided direction to the Queensland Government regarding legislative and non–legislative change, including that legislative recognition of this issue be considered by both the Commonwealth and the Queensland Governments.

Three options for legislative change were put to participants to discuss:

1. To pursue new separate Commonwealth legislation regarding all of Torres Strait Islander customary law, with customary adoption being considered as part of the total package.
2. To pursue new separate legislation for only customary adoption:
3. State by State beginning with Queensland; and/or
4. at Commonwealth level—bearing in mind new Commonwealth legislation could trigger changes to State legislation.
5. To pursue amendments to existing legislation on a State by State basis commencing with Queensland.

After considerable discussion, although participants preferred Option 1 as the ultimate goal, followed by Option 2 and then Option 3, they believed they had a more realistic chance of political acceptance if they pursued the latter two options. They decided to pursue all three options simultaneously.

Following the Workshop in July 1997, a group of Torres Strait Islanders, most of whom have been members of the Torres Strait Islander Working Party on adoption practices since the late 1980s, travelled to some Torres Strait and mainland communities in Queensland. In their consultations, they met with widespread support regarding the outcome of the workshop.

The Office of Aboriginal and Torres Strait Islander Affairs (OTSIA) has also prepared a progress report—The Legal Recognition of Torres Strait Islander Traditional Adoption (‘the Report’)—regarding its views of proposed changes to legislation, which was endorsed by the Torres Strait Islander community at their Seventh National Conference in Rockhampton in late September 1997. The Report is now being reviewed for its legal implications, after which it will be circulated within Queensland to interested parties and finally revised.

Hopefully, the Cabinet of the Queensland Government will consider its response to this ongoing problem for Torres Strait Islanders in early 1998.

Conclusion

It is commendable that both the ALP and current National Party Governments have not dismissed Torres Strait Islander claims for legal recognition of customary adoption, as was the case under the previous Bjelke–Petersen National Party Government. But, unless the Commonwealth Government plays a co–ordinating role, it is possible that Torres Strait Islanders living in other States of Australia will be disadvantaged should the Queensland Government propose either separate legislation or amendments to existing legislation. Whilst OTSIA, with the Aboriginal and Torres Strait Islander Commission, has demonstrated an ongoing interest in proceedings and has provided some financial assistance for some consultation meetings, interest in and resourcing of workshops and consultations over the past seven years has come mainly from the Queensland Government.

Both State and Commonwealth Governments now have the opportunity to use the information gathered to help the Torres Strait Islanders, an Australian indigenous minority, to retain their unique family customary practices. If there is political motivation, there appears to be little to stop them, since the legal recognition of Torres Strait Islander customary adoption practices does not appear to disadvantage the wider community. Nevertheless, this issue has not been resolved since it was first raised over thirty years ago. The first positive reception which Torres Strait Islanders received in asserting the need for the legal recognition of their customary adoption practices was seven years ago. To ensure that progress is not even slower, it is crucial that Torres Strait Islanders lobby both State and Federal politicians once the Queensland Government Cabinet has sufficient information to consider appropriate legislative options.

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[1] Report to Queensland Government on Legal Recognition of Torres Strait Islander Customary Adoption, 1993.

[2] P Ban, Traditional Adoption Practice of Torres Strait Islanders—Queensland Adoption Legislation, Master of Social Work, University of Melbourne, 1989.