Ban, Paul --- "Developments in the Legal Recognition of Torres Strait Islander Customary Adoption" [1996] AboriginalLawB 5; (1996) 3(79) Aboriginal Law Bulletin 14

Developments in the Legal Recognition of Torres Strait Islander Customary Adoption

by Paul Ban

This topic has been discussed in two previous articles in the Aboriginal Law Bulletin. The first, `The Recognition of Torres Strait Islander Customary Adoption Practice' (Vol 2, 60 ALB 4), outlined the characteristics of Torres Strait Islander customary adoption, and explained how it differs from the notion of adoption as defined by the Adoption of Children Act 1964 (Qld) and other State adoption legislation. The second, `Torres Strait Islander Customary Adoption: Legal Recognition' (Vol 3, 66 ALB 8), discussed problems identified by Torres Strait Islanders in areas relating to birth certificates, inheritance, and disputes over the custody of children. This article summarises developments which have occurred over the past 18 months.

Presentation of the The Tree of Life report

Although Torres Strait Islanders live in all States of Australia, the majority live in mainland Queensland within reasonable proximity of their homelands in the Torres Strait. Consequently, the Queensland Government has had primary responsibility for administering the Torres Strait Islands and the needs of Islanders living in mainland Queensland. Throughout the 25 years of National Party Government in Queensland, the Commonwealth Government was strongly discouraged by the State from taking an active interest in Torres Strait Islander affairs. Although not the stated policy of the Labor Party, there has been little proactive cooperation between Queensland and the Commonwealth in the improvement of services to Torres Strait Islanders.

In June 1994, a report entitled The Tree of Life (Danalgau Pui in Western Island language and Idid Ira Lu in Eastern Island language) was handed via ceremonial presentation to the Queensland Minister for Family Services in the presence of senior public servants from departments affected by the report, and Justice Colleen Moore of the Family Court of Australia. This ceremony marked the first time the Family Court, a State Minister and State public servants had come together to receive information about Torres Strait Islander customary family practices.

The report was developed after extensive consultation with Torres Strait Islanders regarding the difficulties they experience arising from legal non-recognition of their customary adoption practices. The consultation process was funded by the Queensland Department of Family Services and Aboriginal and Islander Affairs (now the Department of Family and Community Services). There was an expectation by the Torres Strait Islander community of a reasonable response time, as their concerns had been acknowledged by the Goss Government as soon as it came to power in Queensland in 1989.

Response from the Family Court of Australia

Disputes have continually arisen between Torres Strait Islander families over the custody of children who have been traditionally adopted. The Family Court has not been considered by Islanders as being helpful in resolving these disputes, partly through ignorance of the services of the Court, and partly because of the inaccessibility provided by the Court to Islander families, particularly those living in the Torres Strait. Another contributing factor has been concern as to how Family Court judges may interpret the validity of arrangements made under customary law.

Torres Strait Islanders had presented workshops and a plenary seminar at the Family Court's National Conferences in 1993, 1994 and 1995, where their customary adoption practices and traditional family life were represented using the metaphor of a coconut palm tree. The Chief Justice of the Family Court, Justice Alastair Nicholson, showed his personal commitment to Islanders' concerns by visiting the Torres Strait for two weeks in September 1994 (see `Family Court Initiatives with Aboriginal and Torres Strait Islander communities', Vol 3, 76 ALB 15). His representative at the presentation of The Tree of Life report, Justice Moore, is the Chair of a Family Court committee established to discover more effective ways of servicing the needs of Aboriginal and Torres Strait Islander people.

Following a presentation by Nicholson CJ at the Fourth Torres Strait National Conference, held in Sydney in October 1994, two Torres Strait Islanders from IINA Torres Strait Islander Corporation, Mr Steve Mam and Mr Bill Lowah, visited the Chief Justice in Melbourne in January 1995 to confirm support from the Family Court. Proactive interest in Torres Strait issues by the Chief Justice has paved the way for the Court to become more accessible: the Cairns Registry Office has been instructed to develop a service plan for the Torres Strait, and communication channels have been developed between Islander leaders and Family Court judges. While these developments have been welcomed by Torres Strait Islanders, the Family Court cannot respond to requests for birth certificates to be amended, or inheritance rights of traditionally adopted children to be legally recognised.

Response from the Queensland Government

Fifteen months after receiving The Tree of Life, the Queensland Government, through the Office of Aboriginal and Torres Strait Islander Affairs (within the Family and Community Services Department) began the first of two meetings to coordinate the response of State Government public servants to the report. The second meeting, held in December 1995, was significant as it involved a Family Court judge and Regional Director of Family Court Counselling, along with officers from the Public Trustee (Estates and Wills), the Registrar-General of Births, Deaths and Marriages, the Adoptions and Child Protection Section of Family and Community Services, and policy officers from the Office of Aboriginal and Torres Strait Islander Affairs. The purpose of the meeting was for the various representatives to consider how their agencies could serve the requests of Torres Strait Islanders for legal recognition of their customary practices.

While no clear plan emerged from the meeting, a number of significant issues were raised. One strategy suggested was amendment of the Adoption of Children Act 1964 (Qld) to include a separate section for Torres Strait Islanders. It was suggested that the legal effect of Islanders' customary adoption should be the same as western adoption (new birth certificate, inheritance rights for adoptees), but that the definitions and purposes section of the legislation for Torres Strait Islander adoption should be unique and distinct from the rest of the Act. There was resistance to this suggestion on the basis that Torres Strait Islander customary adoption is not really `adoption' as the term is understood in the Australian legal world. However, it was pointed out that `adoption' has anthropological definitions, and takes many forms throughout different cultures. The word `adoption' has been borrowed from the dominant and colonising western world, but does not have to bring with it western definitions.

While changes to the Adoption of Children Act in Queensland would overcome birth certificate and inheritance problems, only Torres Strait Islanders living in Queensland would be beneficiaries of the changes. The problem of coordination between all States and Territories to amend adoption legislation was discussed. An alternative was suggested, amending the Succession Act, the Births, Deaths and Marriages Act and Public Trustees Act to reflect the needs of Torres Strait Islanders, and leaving the Adoption Act as being only relevant to western adoptions. This option also has the problem of coordination between all jurisdictions, as well as lacking a piece of legislation which is the `trigger' to effect other pieces of legislation.

Possible strategies

The solution to the legislative problem may well be to have a separate piece of legislation regarding Torres Strait Islander customary adoption, and for a Torres Strait Islander advisory body to confirm whether a customary adoption has taken place. The legislation could provide for registration of the adoption and for other relevant pieces of legislation to be amended accordingly (those relating to birth certificates, inheritance etc). Again, there would be coordination difficulties if each State were to pass separate legislation for Torres Strait Islanders, leaving aside the question of each State having the political will to undertake what may be seen as a `preferential treatment' exercise for Torres Strait Islanders.

The Commonwealth Government has the power to pass legislation for Torres Strait Islanders, which can have the effect of amending relevant legislation in all the States and Territories of Australia. Torres Strait Islanders need to maintain pressure for Commonwealth and State Governments to coordinate on this issue, which is of particular significance to the expression of their family life. They have the goodwill at present of the Queensland Office of Aboriginal and Torres Strait Islander Affairs and the Family Court of Australia, but would benefit from obtaining their own legal advice on strategies and coordination.

Further consultation

Both Nicholson CJ and the Office of Aboriginal and Torres Strait Islander Affairs have suggested further consultation be undertaken in the Torres Strait Islander community to clarify certain issues. These include Islanders providing some definitions of customary adoption, and confirming when a customary adoption, as opposed to other forms of child care, has taken place. Islanders need to decide what authority structure in their own community should confirm adoptions and advise legal authorities if disputes arise over customary adoption. In addition, this authoritative body (possibly a Council of Elders) would need to reassure legislators and Government authorities that customary adoption is in the best interests of the children concerned. It is likely the Queensland Government will fund a further consultation covering these areas in 1996.

International significance

At the time of publication of this article, a Torres Strait Islander woman, McRose Elu, has received scholarship funding to undertake research on customary adoption at the University of Hawaii. Indigenous Hawaiians have always had customary adoption as an integral part of their family life, with the term hánai being the practice which approximates the permanent transfer of a child to another family member. However, while the term described a permanent arrangement in traditional times, it may be used to describe a more fluid arrangement in modern times. Although Hawaiian Courts have recognised traditional adoption in judgements since the mid-nineteenth century, there has been no legal effect given to the adoptions. Consequently, indigenous Hawaiians are in the same predicament as Torres Strait Islanders, as they continue to retain a customary family practice with no assistance from the dominant legal system.

Ms Elu intends to research the similarities between hánai and her own customary adoption practice from Saibai Island. While developing her knowledge of the significance of hánai and other forms of child care to indigenous Hawaiian society, she will be documenting the difficulties Hawaiians experience through having their traditional adoption practice excluded from the dominant legal system. As Ms Elu has been a member of the Traditional Adoption Islander Working Group for a number of years, she will maintain links with the developments in Australia, and hopes to inspire indigenous Hawaiians to take a similar proactive position with their own Government.

Conclusion

Torres Strait Islanders have a strong sense of identity as a people and a clear sense of their connections to each other and to their homeland islands. Customary adoption is a practice which contributes significantly to this sense of identity and connectedness, and Torres Strait Islanders fear an erosion of their identity will happen unless their traditional practices are given legal recognition. The link with Hawaii has developed due to an understanding of similar Island customs. Torres Strait Islanders will be interested to learn from McRose Elu whether over 100 years of legal recognition with no legal effect has altered traditional Hawaiian family life to a stage where their sense of identity and connection has been significantly affected.