Parentage not parenthood: Ending discriminatory laws and policies regarding the legal recognition of Torres Strait Islander traditional adoption

Abstract

At the time of submission of this article the authors wait in anticipation to see when and how the newly re-elected Queensland Labor government fulfils its promise to introduce legislation to recognise Torres Strait Islander traditional adoption.1 This article examines how the failure of successive governments to act on this issue has led to Torres Strait Islander peoples not having their practises recognised. This has happened while governments have developed detailed legislative schemes for the legal transfer of children for Queenslanders who have chosen to adopt in the Western manner or to engage in an altruistic surrogacy arrangement. The exclusion from legal recognition is a form of discrimination that has led to disadvantage and legal complications for families where traditional adoption has occurred. The article describes Torres Strait adoption, considers the unacceptable policy positions revealed by its absence from adoption and surrogacy laws and its presence in child protection legislation. It also reviews a Queensland succession case and a number of family law decisions where the Family Court of Australia has grappled with the legislative void in Queensland. Finally, it considers some of the matters that will have to be addressed in reform. This article demonstrates the importance of government action on this issue and contributes to the conversation about recognition and acknowledgement of the Indigenous peoples of Australia at a time of change.