Preliminary

sec.1 Short title

This Act may be cited as the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020 .

sec.2 Commencement

This Act commences on a day to be fixed by proclamation.

sec.3 Act binds all persons

This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. However, the State, the Commonwealth or another State can not be prosecuted for an offence against this Act. (sec.3-ssec.1) This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. (sec.3-ssec.2) However, the State, the Commonwealth or another State can not be prosecuted for an offence against this Act.

sec.4 Main purpose of Act

The purpose of this Act is to— recognise Ailan Kastom child rearing practice; and establish a process for making applications for, and decisions about, the legal recognition of the practice.

• (a) recognise Ailan Kastom child rearing practice; and
• (b) establish a process for making applications for, and decisions about, the legal recognition of the practice.

sec.5 How purpose is achieved

The purpose is to be achieved by providing for the appointment of a commissioner to consider and decide applications for cultural recognition orders.

sec.6 Main principle

The main principle for administering this Act is that any decision made under this Act in relation to a person who is the subject of an application for a cultural recognition order must be for the wellbeing and best interests of the person. Without limiting subsection (1) — in deciding what is for the wellbeing and best interests of a child who is the subject of an application for a cultural recognition order, the decision-maker must have regard to the following matters— the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular; the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice; the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice; recognition of the birth parents’ assessment of the suitability of the cultural parents; decisions must be made in a fair, timely and consistent manner; any other matter that is directly related to the child’s wellbeing and best interests; and in deciding what is for the wellbeing and best interests of an adult who is the subject of an application for a cultural recognition order, the decision-maker must have regard to— the matters mentioned in paragraph (a) (i) , (ii) , and (v); and the legal and cultural benefits for the adult if the cultural recognition order is made recognising Ailan Kastom child rearing practice. (sec.6-ssec.1) The main principle for administering this Act is that any decision made under this Act in relation to a person who is the subject of an application for a cultural recognition order must be for the wellbeing and best interests of the person. (sec.6-ssec.2) Without limiting subsection (1) — in deciding what is for the wellbeing and best interests of a child who is the subject of an application for a cultural recognition order, the decision-maker must have regard to the following matters— the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular; the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice; the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice; recognition of the birth parents’ assessment of the suitability of the cultural parents; decisions must be made in a fair, timely and consistent manner; any other matter that is directly related to the child’s wellbeing and best interests; and in deciding what is for the wellbeing and best interests of an adult who is the subject of an application for a cultural recognition order, the decision-maker must have regard to— the matters mentioned in paragraph (a) (i) , (ii) , and (v); and the legal and cultural benefits for the adult if the cultural recognition order is made recognising Ailan Kastom child rearing practice.

• (a) in deciding what is for the wellbeing and best interests of a child who is the subject of an application for a cultural recognition order, the decision-maker must have regard to the following matters— (i) the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular; (ii) the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice; (iii) the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice; (iv) recognition of the birth parents’ assessment of the suitability of the cultural parents; (v) decisions must be made in a fair, timely and consistent manner; (vi) any other matter that is directly related to the child’s wellbeing and best interests; and
• (i) the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular;
• (ii) the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice;
• (iii) the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice;
• (iv) recognition of the birth parents’ assessment of the suitability of the cultural parents;
• (v) decisions must be made in a fair, timely and consistent manner;
• (vi) any other matter that is directly related to the child’s wellbeing and best interests; and
• (b) in deciding what is for the wellbeing and best interests of an adult who is the subject of an application for a cultural recognition order, the decision-maker must have regard to— (i) the matters mentioned in paragraph (a) (i) , (ii) , and (v); and (ii) the legal and cultural benefits for the adult if the cultural recognition order is made recognising Ailan Kastom child rearing practice.
• (i) the matters mentioned in paragraph (a) (i) , (ii) , and (v); and
• (ii) the legal and cultural benefits for the adult if the cultural recognition order is made recognising Ailan Kastom child rearing practice.
• (i) the need to ensure appropriate recognition and preservation of Ailan Kastom in general and Ailan Kastom child rearing practice in particular;
• (ii) the need to perform the powers and functions under this Act having regard to the sensitivity and cultural practices associated with Ailan Kastom child rearing practice;
• (iii) the legal and cultural benefits for the child if the cultural recognition order is made recognising Ailan Kastom child rearing practice;
• (iv) recognition of the birth parents’ assessment of the suitability of the cultural parents;
• (v) decisions must be made in a fair, timely and consistent manner;
• (vi) any other matter that is directly related to the child’s wellbeing and best interests; and
• (i) the matters mentioned in paragraph (a) (i) , (ii) , and (v); and
• (ii) the legal and cultural benefits for the adult if the cultural recognition order is made recognising Ailan Kastom child rearing practice.

Interpretation

sec.7 Definitions

The dictionary in schedule 1 defines particular words used in this Act.

sec.8 Meaning of Ailan Kastom child rearing practice

Ailan Kastom child rearing practice is the practice recognised by Ailan Kastom under which a child’s birth parents and the child’s cultural parents agree in accordance with Ailan Kastom that the parental rights and responsibility for the child are permanently transferred from the birth parents to the cultural parents.

sec.9 Meaning of birth parent

A birth parent of a child, means a person who is recognised at law as being a parent of the child at the time the child is born.

sec.10 Meaning of cultural parent

A cultural parent is a person who, in accordance with Ailan Kastom child rearing practice, agrees to accept the permanent transfer of the parental rights and responsibility for a child from the child’s birth parents to the person.

Commissioner and office of commissioner

Commissioner

sec.11 Commissioner

There is to be a commissioner (Meriba Omasker Kaziw Kazipa). The commissioner is appointed by the Governor in Council on the recommendation of the Minister. The Minister may recommend a person for appointment only if— the person is a Torres Strait Islander; and the Minister is satisfied the person is appropriately qualified. (sec.11-ssec.1) There is to be a commissioner (Meriba Omasker Kaziw Kazipa). (sec.11-ssec.2) The commissioner is appointed by the Governor in Council on the recommendation of the Minister. (sec.11-ssec.3) The Minister may recommend a person for appointment only if— the person is a Torres Strait Islander; and the Minister is satisfied the person is appropriately qualified.

• (a) the person is a Torres Strait Islander; and
• (b) the Minister is satisfied the person is appropriately qualified.

sec.12 Commissioner appointed under this Act

The commissioner is appointed under this Act and not the Public Sector Act 2022 . s 12 amd 2022 No. 34 s 365 sch 3

sec.13 Term of appointment

The commissioner holds office for the term stated in the commissioner’s instrument of appointment. The term must not be more than 3 years. The commissioner may be reappointed. (sec.13-ssec.1) The commissioner holds office for the term stated in the commissioner’s instrument of appointment. (sec.13-ssec.2) The term must not be more than 3 years. (sec.13-ssec.3) The commissioner may be reappointed.

sec.14 Conditions of appointment

The commissioner is to be paid the remuneration and allowances decided by the Governor in Council. The commissioner holds office on the terms and conditions, not otherwise provided by this Act, that are decided by the Governor in Council. (sec.14-ssec.1) The commissioner is to be paid the remuneration and allowances decided by the Governor in Council. (sec.14-ssec.2) The commissioner holds office on the terms and conditions, not otherwise provided by this Act, that are decided by the Governor in Council.

sec.15 Preservation of rights of commissioner

This section applies if a public service officer is appointed as the commissioner. The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer. At the end of the person’s term of office, or on resignation as the commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer. (sec.15-ssec.1) This section applies if a public service officer is appointed as the commissioner. (sec.15-ssec.2) The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer. (sec.15-ssec.3) At the end of the person’s term of office, or on resignation as the commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.

sec.16 Leave of absence

The Minister may approve a leave of absence for the commissioner. The Minister may appoint another person to act in the office of the commissioner during the leave of absence. Subsection (2) does not limit the Governor in Council’s power under the Acts Interpretation Act 1954 , section 25 (1) (b) (v) . (sec.16-ssec.1) The Minister may approve a leave of absence for the commissioner. (sec.16-ssec.2) The Minister may appoint another person to act in the office of the commissioner during the leave of absence. (sec.16-ssec.3) Subsection (2) does not limit the Governor in Council’s power under the Acts Interpretation Act 1954 , section 25 (1) (b) (v) .

sec.17 Resignation

The commissioner may resign by signed notice given to the Minister. The resignation takes effect on— the day the notice is given; or if a later day is stated in the notice—the later day. (sec.17-ssec.1) The commissioner may resign by signed notice given to the Minister. (sec.17-ssec.2) The resignation takes effect on— the day the notice is given; or if a later day is stated in the notice—the later day.

• (a) the day the notice is given; or
• (b) if a later day is stated in the notice—the later day.

sec.18 Disclosure of conflict of interests

If the commissioner considers that the commissioner can not independently consider and decide a particular application for a cultural recognition order, the commissioner must give the Minister a notice (a disclosure notice ) stating— the particular application in sufficient detail to enable the Minister to identify the application; and the reasons the commissioner is not able to independently consider and decide the application; and that the commissioner will not participate in the process leading to a decision for the application. Without limiting subsection (1) , the commissioner must give a disclosure notice to the Minister if— the commissioner becomes aware of a direct or an indirect interest the commissioner has in the application; and the interest could conflict with the proper performance of the commissioner’s functions and powers. In this section— interest , in relation to an application, includes a familial interest or a financial interest. (sec.18-ssec.1) If the commissioner considers that the commissioner can not independently consider and decide a particular application for a cultural recognition order, the commissioner must give the Minister a notice (a disclosure notice ) stating— the particular application in sufficient detail to enable the Minister to identify the application; and the reasons the commissioner is not able to independently consider and decide the application; and that the commissioner will not participate in the process leading to a decision for the application. (sec.18-ssec.2) Without limiting subsection (1) , the commissioner must give a disclosure notice to the Minister if— the commissioner becomes aware of a direct or an indirect interest the commissioner has in the application; and the interest could conflict with the proper performance of the commissioner’s functions and powers. (sec.18-ssec.3) In this section— interest , in relation to an application, includes a familial interest or a financial interest.

• (a) the particular application in sufficient detail to enable the Minister to identify the application; and
• (b) the reasons the commissioner is not able to independently consider and decide the application; and
• (c) that the commissioner will not participate in the process leading to a decision for the application.
• (a) the commissioner becomes aware of a direct or an indirect interest the commissioner has in the application; and
• (b) the interest could conflict with the proper performance of the commissioner’s functions and powers.

sec.19 Effect of disclosure notice

As soon as practicable after the Minister receives a disclosure notice, the Minister must appoint a person (the appointed person ), other than the commissioner, to decide the application. The Minister may appoint a person as an appointed person if the Minister is satisfied the person is appropriately qualified. The appointed person must— consider and decide the application under part 5 as if the appointed person had the powers and functions of the commissioner; and give a statement of reasons for the decision to— each party to the application; and the commissioner. The appointed person’s decision— is taken to be a decision of the commissioner; and takes effect as if the decision were the commissioner’s decision. (sec.19-ssec.1) As soon as practicable after the Minister receives a disclosure notice, the Minister must appoint a person (the appointed person ), other than the commissioner, to decide the application. (sec.19-ssec.2) The Minister may appoint a person as an appointed person if the Minister is satisfied the person is appropriately qualified. (sec.19-ssec.3) The appointed person must— consider and decide the application under part 5 as if the appointed person had the powers and functions of the commissioner; and give a statement of reasons for the decision to— each party to the application; and the commissioner. (sec.19-ssec.4) The appointed person’s decision— is taken to be a decision of the commissioner; and takes effect as if the decision were the commissioner’s decision.

• (a) consider and decide the application under part 5 as if the appointed person had the powers and functions of the commissioner; and
• (b) give a statement of reasons for the decision to— (i) each party to the application; and (ii) the commissioner.
• (i) each party to the application; and
• (ii) the commissioner.
• (i) each party to the application; and
• (ii) the commissioner.
• (a) is taken to be a decision of the commissioner; and
• (b) takes effect as if the decision were the commissioner’s decision.

sec.20 Vacancy in office

The office of the commissioner becomes vacant if the commissioner— gives notice of resignation under section 17 ; or is convicted of an indictable offence; or is removed from office by the Governor in Council under subsection (3) . Also, if the commissioner is suspended by the Minister under subsection (5) , the office is vacant during the period of suspension. The Governor in Council may, at any time, remove the commissioner from office on the recommendation of the Minister. The Minister may recommend the commissioner’s removal if the Minister is satisfied the commissioner— is guilty of misconduct; or is incapable of performing the functions or exercising the powers of the office of the commissioner; or has neglected the functions or powers of the office of the commissioner or performed or exercised them incompetently. The Minister may suspend the commissioner for up to 60 days by signed notice to the commissioner if— there is an allegation of misconduct against the commissioner; or the Minister is satisfied a matter has arisen in relation to the commissioner that may be grounds for removal under this section. (sec.20-ssec.1) The office of the commissioner becomes vacant if the commissioner— gives notice of resignation under section 17 ; or is convicted of an indictable offence; or is removed from office by the Governor in Council under subsection (3) . (sec.20-ssec.2) Also, if the commissioner is suspended by the Minister under subsection (5) , the office is vacant during the period of suspension. (sec.20-ssec.3) The Governor in Council may, at any time, remove the commissioner from office on the recommendation of the Minister. (sec.20-ssec.4) The Minister may recommend the commissioner’s removal if the Minister is satisfied the commissioner— is guilty of misconduct; or is incapable of performing the functions or exercising the powers of the office of the commissioner; or has neglected the functions or powers of the office of the commissioner or performed or exercised them incompetently. (sec.20-ssec.5) The Minister may suspend the commissioner for up to 60 days by signed notice to the commissioner if— there is an allegation of misconduct against the commissioner; or the Minister is satisfied a matter has arisen in relation to the commissioner that may be grounds for removal under this section.

• (a) gives notice of resignation under section 17 ; or
• (b) is convicted of an indictable offence; or
• (c) is removed from office by the Governor in Council under subsection (3) .
• (a) is guilty of misconduct; or
• (b) is incapable of performing the functions or exercising the powers of the office of the commissioner; or
• (c) has neglected the functions or powers of the office of the commissioner or performed or exercised them incompetently.
• (a) there is an allegation of misconduct against the commissioner; or
• (b) the Minister is satisfied a matter has arisen in relation to the commissioner that may be grounds for removal under this section.

sec.21 Acting commissioner

If there is a vacancy in the office of the commissioner or the commissioner is absent for any other reason or is unable to perform the functions of the office, the Minister may appoint a person to act as the commissioner for a period of not more than 6 months. A person may only be appointed to act as the commissioner if the Minister is satisfied the person is appropriately qualified. (sec.21-ssec.1) If there is a vacancy in the office of the commissioner or the commissioner is absent for any other reason or is unable to perform the functions of the office, the Minister may appoint a person to act as the commissioner for a period of not more than 6 months. (sec.21-ssec.2) A person may only be appointed to act as the commissioner if the Minister is satisfied the person is appropriately qualified.

sec.22 Functions

The commissioner has the following functions— to independently consider and decide each application for a cultural recognition order; to ensure the proper, efficient and effective performance of the office; to provide advice, or make recommendations, to the Minister about the operation of this Act and the office; to promote public awareness of the commissioner’s functions and the office; to advise the registrar of each cultural recognition order made by the commissioner; any other function conferred on the commissioner under this Act or another Act.

• (a) to independently consider and decide each application for a cultural recognition order;
• (b) to ensure the proper, efficient and effective performance of the office;
• (c) to provide advice, or make recommendations, to the Minister about the operation of this Act and the office;
• (d) to promote public awareness of the commissioner’s functions and the office;
• (e) to advise the registrar of each cultural recognition order made by the commissioner;
• (f) any other function conferred on the commissioner under this Act or another Act.

sec.23 Obligation in performing functions

The commissioner must, in performing the commissioner’s functions, act in accordance with the main principle of this Act.

sec.24 Powers

The commissioner has power to do all things necessary or convenient to perform the commissioner’s functions.

sec.25 Commissioner not subject to direction

The commissioner is not subject to direction by any person about the way the commissioner performs the commissioner’s functions or exercises the commissioner’s powers.

Office of the commissioner

sec.26 Office of the commissioner

An office called the Office of the Commissioner (Meriba Omasker Kaziw Kazipa) is established. The office’s function is to help the commissioner perform the commissioner’s functions. The office consists of the commissioner and the officers of the office. (sec.26-ssec.1) An office called the Office of the Commissioner (Meriba Omasker Kaziw Kazipa) is established. (sec.26-ssec.2) The office’s function is to help the commissioner perform the commissioner’s functions. (sec.26-ssec.3) The office consists of the commissioner and the officers of the office.

sec.27 Control of the office

The commissioner controls the office.

sec.28 Officers

Officers of the office are appointed under the Public Sector Act 2022 . s 28 amd 2022 No. 34 s 365 sch 3

sec.29 Officers not subject to outside direction

An officer of the office is not subject to direction by any person, other than from within the office, about the way the commissioner’s functions or powers under this Act are performed or exercised.

sec.30 Staffing arrangements and administrative support

The commissioner may ask the chief executive to give or make available to the office the administrative support services and facilities the office requires to perform its functions effectively. The commissioner may arrange with the chief executive for the services of officers or employees of the department to be made available to the commissioner. An officer or employee whose services are made available under subsection (2) — continues to be an officer or employee of the department; and continues to be employed or otherwise engaged by the department on the same terms and conditions applying to the officer or employee before the services were made available; and is, for the period the services are made available and for carrying out the office’s functions, taken to be an officer of the office. (sec.30-ssec.1) The commissioner may ask the chief executive to give or make available to the office the administrative support services and facilities the office requires to perform its functions effectively. (sec.30-ssec.2) The commissioner may arrange with the chief executive for the services of officers or employees of the department to be made available to the commissioner. (sec.30-ssec.3) An officer or employee whose services are made available under subsection (2) — continues to be an officer or employee of the department; and continues to be employed or otherwise engaged by the department on the same terms and conditions applying to the officer or employee before the services were made available; and is, for the period the services are made available and for carrying out the office’s functions, taken to be an officer of the office.

• (a) continues to be an officer or employee of the department; and
• (b) continues to be employed or otherwise engaged by the department on the same terms and conditions applying to the officer or employee before the services were made available; and
• (c) is, for the period the services are made available and for carrying out the office’s functions, taken to be an officer of the office.

sec.31 Office not a statutory body for particular Acts

To remove any doubt, it is declared that the office is not a statutory body for the Financial Accountability Act 2009 or the Statutory Bodies Financial Arrangements Act 1982 .

Applications for cultural recognition orders

Eligibility and criteria

sec.32 Preliminary criteria for making application for cultural recognition order

An application for a cultural recognition order about a person may be made only if— at least 1 birth parent is a Torres Strait Islander; and the person’s birth was registered in Queensland; and at the time the person’s parentage is transferred in accordance with Ailan Kastom child rearing practice, at least 1 cultural parent is a Torres Strait Islander. Also, an application for a cultural recognition order about a person who is a child at the time the application is made may be made only— by each of the child’s birth parents and cultural parents; and if each applicant is an adult; and 30 days, or more, after the child’s birth is registered. For subsection (2) , nothing prevents the application from being made if— a birth parent or cultural parent is deceased; or at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent. However, if a birth parent or cultural parent is deceased, the application can be made only if— at least 1 birth parent is an applicant for the order; and at least 1 cultural parent is an applicant for the order. An application for a cultural recognition order about a person who is an adult at the time the application is made only by the person. For subsection (5) nothing prevents the application from being made if— a birth parent or cultural parent is deceased; or at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent. (sec.32-ssec.1) An application for a cultural recognition order about a person may be made only if— at least 1 birth parent is a Torres Strait Islander; and the person’s birth was registered in Queensland; and at the time the person’s parentage is transferred in accordance with Ailan Kastom child rearing practice, at least 1 cultural parent is a Torres Strait Islander. (sec.32-ssec.2) Also, an application for a cultural recognition order about a person who is a child at the time the application is made may be made only— by each of the child’s birth parents and cultural parents; and if each applicant is an adult; and 30 days, or more, after the child’s birth is registered. (sec.32-ssec.3) For subsection (2) , nothing prevents the application from being made if— a birth parent or cultural parent is deceased; or at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent. (sec.32-ssec.4) However, if a birth parent or cultural parent is deceased, the application can be made only if— at least 1 birth parent is an applicant for the order; and at least 1 cultural parent is an applicant for the order. (sec.32-ssec.5) An application for a cultural recognition order about a person who is an adult at the time the application is made only by the person. (sec.32-ssec.6) For subsection (5) nothing prevents the application from being made if— a birth parent or cultural parent is deceased; or at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent.

• (a) at least 1 birth parent is a Torres Strait Islander; and
• (b) the person’s birth was registered in Queensland; and
• (c) at the time the person’s parentage is transferred in accordance with Ailan Kastom child rearing practice, at least 1 cultural parent is a Torres Strait Islander.
• (a) by each of the child’s birth parents and cultural parents; and
• (b) if each applicant is an adult; and
• (c) 30 days, or more, after the child’s birth is registered.
• (a) a birth parent or cultural parent is deceased; or
• (b) at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent.
• (a) at least 1 birth parent is an applicant for the order; and
• (b) at least 1 cultural parent is an applicant for the order.
• (a) a birth parent or cultural parent is deceased; or
• (b) at the time the person’s parentage was transferred in accordance with Ailan Kastom child rearing practice—there was only 1 cultural parent.

sec.33 Making an application

An application for a cultural recognition order must be— made in the approved form; and if the person the subject of the application is a child— accompanied by— a certified copy of the child’s birth certificate; and if a final adoption order has been made in relation to the child under the Adoption Act 2009 , part 9 —a copy of that order; and if an order has been made in relation to the child under the Family Law Act 1975 (Cwlth) —a copy of that order; and if an order has been made in relation to the child under the Child Protection Act 1999 —a copy of that order; and the statements or information required under section 34 ; and any other document or information prescribed by regulation; and if the person the subject of the application is an adult—accompanied by— a certified copy of the person’s birth certificate; and the statements or information required under section 34 . Some requirements may be dispensed with if a court makes a dispensation order under section 52 . The commissioner must make a record of each application. (sec.33-ssec.1) An application for a cultural recognition order must be— made in the approved form; and if the person the subject of the application is a child— accompanied by— a certified copy of the child’s birth certificate; and if a final adoption order has been made in relation to the child under the Adoption Act 2009 , part 9 —a copy of that order; and if an order has been made in relation to the child under the Family Law Act 1975 (Cwlth) —a copy of that order; and if an order has been made in relation to the child under the Child Protection Act 1999 —a copy of that order; and the statements or information required under section 34 ; and any other document or information prescribed by regulation; and if the person the subject of the application is an adult—accompanied by— a certified copy of the person’s birth certificate; and the statements or information required under section 34 . Some requirements may be dispensed with if a court makes a dispensation order under section 52 . (sec.33-ssec.2) The commissioner must make a record of each application.

• (a) made in the approved form; and
• (b) if the person the subject of the application is a child— accompanied by— (i) a certified copy of the child’s birth certificate; and (ii) if a final adoption order has been made in relation to the child under the Adoption Act 2009 , part 9 —a copy of that order; and (iii) if an order has been made in relation to the child under the Family Law Act 1975 (Cwlth) —a copy of that order; and (iv) if an order has been made in relation to the child under the Child Protection Act 1999 —a copy of that order; and (v) the statements or information required under section 34 ; and (vi) any other document or information prescribed by regulation; and
• (i) a certified copy of the child’s birth certificate; and
• (ii) if a final adoption order has been made in relation to the child under the Adoption Act 2009 , part 9 —a copy of that order; and
• (iii) if an order has been made in relation to the child under the Family Law Act 1975 (Cwlth) —a copy of that order; and
• (iv) if an order has been made in relation to the child under the Child Protection Act 1999 —a copy of that order; and
• (v) the statements or information required under section 34 ; and
• (vi) any other document or information prescribed by regulation; and
• (c) if the person the subject of the application is an adult—accompanied by— (i) a certified copy of the person’s birth certificate; and (ii) the statements or information required under section 34 .
• (i) a certified copy of the person’s birth certificate; and
• (ii) the statements or information required under section 34 .
• (i) a certified copy of the child’s birth certificate; and
• (ii) if a final adoption order has been made in relation to the child under the Adoption Act 2009 , part 9 —a copy of that order; and
• (iii) if an order has been made in relation to the child under the Family Law Act 1975 (Cwlth) —a copy of that order; and
• (iv) if an order has been made in relation to the child under the Child Protection Act 1999 —a copy of that order; and
• (v) the statements or information required under section 34 ; and
• (vi) any other document or information prescribed by regulation; and
• (i) a certified copy of the person’s birth certificate; and
• (ii) the statements or information required under section 34 .

Documents and signed statements

sec.34 Application to include particular documents and information

An application for a cultural recognition order about a person who is a child at the time the application is made must include— a signed statement from each birth parent addressing the matters mentioned in section 35 ; and a signed statement from each cultural parent addressing the matters mentioned in section 36 ; and a signed statement from the birth parents’ nominated informed person and the cultural parents’ nominated informed person addressing the matters mentioned in section 38 ; and if the child has an other carer—a signed statement from the other carer addressing the matters mentioned in section 39 . Also, the application may be accompanied by any other information or document the applicant reasonably considers may help the commissioner in deciding whether to make a cultural recognition order. An application for a cultural recognition order about a person who is an adult at the time of the application must include— a signed statement from the person addressing the matters mentioned in section 37 ; and a signed statement from each birth parent addressing the matters mentioned in section 35 (1) (a) , (b) , (f) , (g) and (h) ; and a signed statement from each cultural parent addressing the matters mentioned in section 36 (1) (a) , (b) , (e) , (f) and (j) ; and a signed statement from the birth parents’ nominated informed person and cultural parents’ nominated informed person addressing the matters mentioned in section 38 . Also, the application may be accompanied by any other information or document the applicant reasonably considers may help the commissioner in deciding whether to make a cultural recognition order. (sec.34-ssec.1) An application for a cultural recognition order about a person who is a child at the time the application is made must include— a signed statement from each birth parent addressing the matters mentioned in section 35 ; and a signed statement from each cultural parent addressing the matters mentioned in section 36 ; and a signed statement from the birth parents’ nominated informed person and the cultural parents’ nominated informed person addressing the matters mentioned in section 38 ; and if the child has an other carer—a signed statement from the other carer addressing the matters mentioned in section 39 . (sec.34-ssec.2) Also, the application may be accompanied by any other information or document the applicant reasonably considers may help the commissioner in deciding whether to make a cultural recognition order. (sec.34-ssec.3) An application for a cultural recognition order about a person who is an adult at the time of the application must include— a signed statement from the person addressing the matters mentioned in section 37 ; and a signed statement from each birth parent addressing the matters mentioned in section 35 (1) (a) , (b) , (f) , (g) and (h) ; and a signed statement from each cultural parent addressing the matters mentioned in section 36 (1) (a) , (b) , (e) , (f) and (j) ; and a signed statement from the birth parents’ nominated informed person and cultural parents’ nominated informed person addressing the matters mentioned in section 38 . (sec.34-ssec.4) Also, the application may be accompanied by any other information or document the applicant reasonably considers may help the commissioner in deciding whether to make a cultural recognition order.

• (a) a signed statement from each birth parent addressing the matters mentioned in section 35 ; and
• (b) a signed statement from each cultural parent addressing the matters mentioned in section 36 ; and
• (c) a signed statement from the birth parents’ nominated informed person and the cultural parents’ nominated informed person addressing the matters mentioned in section 38 ; and
• (d) if the child has an other carer—a signed statement from the other carer addressing the matters mentioned in section 39 .
• (a) a signed statement from the person addressing the matters mentioned in section 37 ; and
• (b) a signed statement from each birth parent addressing the matters mentioned in section 35 (1) (a) , (b) , (f) , (g) and (h) ; and
• (c) a signed statement from each cultural parent addressing the matters mentioned in section 36 (1) (a) , (b) , (e) , (f) and (j) ; and
• (d) a signed statement from the birth parents’ nominated informed person and cultural parents’ nominated informed person addressing the matters mentioned in section 38 .

sec.35 Birth parent’s statement

A birth parent’s signed statement must address the following matters— the nature and details of the Ailan Kastom child rearing practice that occurred; that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parent to the cultural parents in accordance with Ailan Kastom child rearing practice; the reasons the birth parent considers a cultural recognition order will be in the best interests of the child; whether, to the birth parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred; that the birth parent is not aware of any matter that might be detrimental to the wellbeing and best interests of the child; the name and address of a person both birth parents nominate as the informed person for the application; that the birth parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order; that the birth parent gives their informed consent to the application being made. Without limiting subsection (1) (c) , the birth parent’s statement may include the following matters— the nature of any relationship the birth parent has with the child; if the birth parent provides any financial support for the child—details of that support; if the birth parent is involved in any decisions in relation to the child—details of that involvement. details of the birth parent’s ability to decide or influence a decision about the child’s education or medical treatment (sec.35-ssec.1) A birth parent’s signed statement must address the following matters— the nature and details of the Ailan Kastom child rearing practice that occurred; that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parent to the cultural parents in accordance with Ailan Kastom child rearing practice; the reasons the birth parent considers a cultural recognition order will be in the best interests of the child; whether, to the birth parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred; that the birth parent is not aware of any matter that might be detrimental to the wellbeing and best interests of the child; the name and address of a person both birth parents nominate as the informed person for the application; that the birth parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order; that the birth parent gives their informed consent to the application being made. (sec.35-ssec.2) Without limiting subsection (1) (c) , the birth parent’s statement may include the following matters— the nature of any relationship the birth parent has with the child; if the birth parent provides any financial support for the child—details of that support; if the birth parent is involved in any decisions in relation to the child—details of that involvement. details of the birth parent’s ability to decide or influence a decision about the child’s education or medical treatment

• (a) the nature and details of the Ailan Kastom child rearing practice that occurred;
• (b) that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parent to the cultural parents in accordance with Ailan Kastom child rearing practice;
• (c) the reasons the birth parent considers a cultural recognition order will be in the best interests of the child;
• (d) whether, to the birth parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred;
• (e) that the birth parent is not aware of any matter that might be detrimental to the wellbeing and best interests of the child;
• (f) the name and address of a person both birth parents nominate as the informed person for the application;
• (g) that the birth parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order;
• (h) that the birth parent gives their informed consent to the application being made.
• (a) the nature of any relationship the birth parent has with the child;
• (b) if the birth parent provides any financial support for the child—details of that support;
• (c) if the birth parent is involved in any decisions in relation to the child—details of that involvement. Example— details of the birth parent’s ability to decide or influence a decision about the child’s education or medical treatment

sec.36 Cultural parent’s statement

A cultural parent’s signed statement must address the following matters— the nature and details of the Ailan Kastom child rearing practice that occurred; that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parents to the cultural parents in accordance with Ailan Kastom child rearing practice; the reasons the cultural parent considers a cultural recognition order will be in the best interests of the child; the period the child has lived with the cultural parent; the name and address of a person both the cultural parents nominate as the informed person for the application; that the cultural parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order; whether, to the cultural parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred; that the cultural parent consents to the commissioner— requesting a copy of the cultural parent’s criminal history; and relying on information contained in the cultural parent’s criminal history to decide whether to make a cultural recognition order; that the cultural parent is not aware of any matter that might be detrimental to the well being and best interests of the child; that the cultural parent gives their informed consent to the application being made. Without limiting subsection (1) (c) , the cultural parent’s statement may include the following matters— the nature of any relationship the birth parent has with the child; the nature of the relationship the cultural parent has with the child; how the child refers to the cultural parent and other family members details of the child’s current living arrangements; the number and ages of other children living with the cultural parent details of the financial support provided by the cultural parent for the child; details of how any decision is made in relation to the child. who makes decisions about the child’s education or medical treatment (sec.36-ssec.1) A cultural parent’s signed statement must address the following matters— the nature and details of the Ailan Kastom child rearing practice that occurred; that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parents to the cultural parents in accordance with Ailan Kastom child rearing practice; the reasons the cultural parent considers a cultural recognition order will be in the best interests of the child; the period the child has lived with the cultural parent; the name and address of a person both the cultural parents nominate as the informed person for the application; that the cultural parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order; whether, to the cultural parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred; that the cultural parent consents to the commissioner— requesting a copy of the cultural parent’s criminal history; and relying on information contained in the cultural parent’s criminal history to decide whether to make a cultural recognition order; that the cultural parent is not aware of any matter that might be detrimental to the well being and best interests of the child; that the cultural parent gives their informed consent to the application being made. (sec.36-ssec.2) Without limiting subsection (1) (c) , the cultural parent’s statement may include the following matters— the nature of any relationship the birth parent has with the child; the nature of the relationship the cultural parent has with the child; how the child refers to the cultural parent and other family members details of the child’s current living arrangements; the number and ages of other children living with the cultural parent details of the financial support provided by the cultural parent for the child; details of how any decision is made in relation to the child. who makes decisions about the child’s education or medical treatment

• (a) the nature and details of the Ailan Kastom child rearing practice that occurred;
• (b) that the parental rights and obligations for the child were transferred under Ailan Kastom from the birth parents to the cultural parents in accordance with Ailan Kastom child rearing practice;
• (c) the reasons the cultural parent considers a cultural recognition order will be in the best interests of the child;
• (d) the period the child has lived with the cultural parent;
• (e) the name and address of a person both the cultural parents nominate as the informed person for the application;
• (f) that the cultural parent consents to the making of inquiries of, and the exchange of information with, the informed person for the purpose of helping the commissioner decide whether to make a cultural recognition order;
• (g) whether, to the cultural parent’s knowledge, the child is aware that the Ailan Kastom child rearing practice occurred;
• (h) that the cultural parent consents to the commissioner— (i) requesting a copy of the cultural parent’s criminal history; and (ii) relying on information contained in the cultural parent’s criminal history to decide whether to make a cultural recognition order;
• (i) requesting a copy of the cultural parent’s criminal history; and
• (ii) relying on information contained in the cultural parent’s criminal history to decide whether to make a cultural recognition order;
• (i) that the cultural parent is not aware of any matter that might be detrimental to the well being and best interests of the child;
• (j) that the cultural parent gives their informed consent to the application being made.
• (i) requesting a copy of the cultural parent’s criminal history; and
• (ii) relying on information contained in the cultural parent’s criminal history to decide whether to make a cultural recognition order;
• (a) the nature of any relationship the birth parent has with the child;
• (b) the nature of the relationship the cultural parent has with the child; Example— how the child refers to the cultural parent and other family members
• (c) details of the child’s current living arrangements; Example— the number and ages of other children living with the cultural parent
• (d) details of the financial support provided by the cultural parent for the child;
• (e) details of how any decision is made in relation to the child. Example— who makes decisions about the child’s education or medical treatment

sec.37 Signed statement of adult who was subject to Ailan Kastom child rearing practice

A signed statement of an adult who was subject to Ailan Kastom child rearing practice must address the following matters— how the person was made aware that they were the subject of Ailan Kastom child rearing practice; what information the person was provided with about the Ailan Kastom child rearing practice; the nature of the relationship the person has with their cultural parents; how the person refers to the cultural parents the nature of any relationship the person has with their birth parents; how the person refers to the birth parents that the person consents to the making of inquiries of, and the exchange of information with, the person’s birth parents, cultural parents and informed person for the purpose of deciding whether to make a cultural recognition order; that the person gives their informed consent to the application.

• (a) how the person was made aware that they were the subject of Ailan Kastom child rearing practice;
• (b) what information the person was provided with about the Ailan Kastom child rearing practice;
• (c) the nature of the relationship the person has with their cultural parents; Example— how the person refers to the cultural parents
• (d) the nature of any relationship the person has with their birth parents; Example— how the person refers to the birth parents
• (e) that the person consents to the making of inquiries of, and the exchange of information with, the person’s birth parents, cultural parents and informed person for the purpose of deciding whether to make a cultural recognition order;
• (f) that the person gives their informed consent to the application.

sec.38 Informed person’s signed statement

An informed person’s signed statement must address the following matters— the person’s understanding of the Ailan Kastom child rearing practice that occurred in relation to the application; whether the Ailan Kastom child rearing practice occurred in accordance with Ailan Kastom; the person’s relationship, if any, to the birth parents, the cultural parents and the person the subject of the application.

• (a) the person’s understanding of the Ailan Kastom child rearing practice that occurred in relation to the application;
• (b) whether the Ailan Kastom child rearing practice occurred in accordance with Ailan Kastom;
• (c) the person’s relationship, if any, to the birth parents, the cultural parents and the person the subject of the application.

sec.39 Other carer’s statement

An other carer’s signed statement must address the following matters— the other carer’s relationship to the child; that the other carer gives their informed consent to the application being made; the reasons the other carer considers a cultural recognition order will be in the best interests of the child.

• (a) the other carer’s relationship to the child;
• (b) that the other carer gives their informed consent to the application being made;
• (c) the reasons the other carer considers a cultural recognition order will be in the best interests of the child.

Cultural recognition orders

Applications for cultural recognition order

sec.40 Commissioner must deal with applications

The commissioner must deal with an application for a cultural recognition order by considering and deciding the application under this part.

sec.41 Commissioner may request additional information

The commissioner may, by notice given to an applicant for a cultural recognition order, ask the applicant for further information or a document the commissioner reasonably requires to decide whether to make a cultural recognition order. The notice— must state a reasonable period of at least 30 business days within which the applicant must give the information or document to the commissioner; and must state that an applicant may request that the commissioner extend the period mentioned in paragraph (a) ; and may require the information or document be verified by statutory declaration. The commissioner may extend the period mentioned in subsection (2) (a) by notice given to the person— on the commissioner’s own initiative; or if an applicant makes a request under subsection (2) (b) . The commissioner may decide whether to make a cultural recognition order regardless of whether the applicant gives the further information or document requested. (sec.41-ssec.1) The commissioner may, by notice given to an applicant for a cultural recognition order, ask the applicant for further information or a document the commissioner reasonably requires to decide whether to make a cultural recognition order. (sec.41-ssec.2) The notice— must state a reasonable period of at least 30 business days within which the applicant must give the information or document to the commissioner; and must state that an applicant may request that the commissioner extend the period mentioned in paragraph (a) ; and may require the information or document be verified by statutory declaration. (sec.41-ssec.3) The commissioner may extend the period mentioned in subsection (2) (a) by notice given to the person— on the commissioner’s own initiative; or if an applicant makes a request under subsection (2) (b) . (sec.41-ssec.4) The commissioner may decide whether to make a cultural recognition order regardless of whether the applicant gives the further information or document requested.

• (a) must state a reasonable period of at least 30 business days within which the applicant must give the information or document to the commissioner; and
• (b) must state that an applicant may request that the commissioner extend the period mentioned in paragraph (a) ; and
• (c) may require the information or document be verified by statutory declaration.
• (a) on the commissioner’s own initiative; or
• (b) if an applicant makes a request under subsection (2) (b) .

sec.42 Withdrawal of application

An applicant for a cultural recognition order may withdraw the application by giving written notice (a notice of withdrawal ) to the commissioner. On the commissioner’s receipt of the notice of withdrawal, the application ends. As soon as practicable after receiving the notice of withdrawal, the commissioner must give the applicant, and each other party to the application, notice that the application is withdrawn. (sec.42-ssec.1) An applicant for a cultural recognition order may withdraw the application by giving written notice (a notice of withdrawal ) to the commissioner. (sec.42-ssec.2) On the commissioner’s receipt of the notice of withdrawal, the application ends. (sec.42-ssec.3) As soon as practicable after receiving the notice of withdrawal, the commissioner must give the applicant, and each other party to the application, notice that the application is withdrawn.

sec.43 Duty of parties to application

Each applicant for a cultural recognition order must participate in the commissioner’s consideration of the application in good faith.

sec.44 Consideration procedure

Subject to this Act, the commissioner must consider an application for a cultural recognition order in accordance with any guidelines made by the commissioner under section 108 . Also, the commissioner, in considering the application— must act in a way that is fair and reasonable; and must maintain confidentiality; and must comply with natural justice; and may have regard to any matter the commissioner considers relevant to the application, including any previous applications made in relation to the person the subject of the application; and may make inquiries the commissioner considers appropriate. (sec.44-ssec.1) Subject to this Act, the commissioner must consider an application for a cultural recognition order in accordance with any guidelines made by the commissioner under section 108 . (sec.44-ssec.2) Also, the commissioner, in considering the application— must act in a way that is fair and reasonable; and must maintain confidentiality; and must comply with natural justice; and may have regard to any matter the commissioner considers relevant to the application, including any previous applications made in relation to the person the subject of the application; and may make inquiries the commissioner considers appropriate.

• (a) must act in a way that is fair and reasonable; and
• (b) must maintain confidentiality; and
• (c) must comply with natural justice; and
• (d) may have regard to any matter the commissioner considers relevant to the application, including any previous applications made in relation to the person the subject of the application; and
• (e) may make inquiries the commissioner considers appropriate.

Information to assist commissioner

sec.45 Criminal history report

This section applies for deciding an application for a cultural recognition order if the person the subject of the application is a child. The commissioner may ask the police commissioner for a written report about a cultural parent’s criminal history that includes a brief description of the circumstances of a conviction mentioned in the criminal history. The police commissioner must comply with the request. The duty to comply applies only to information the police commissioner has possession of or to which the police commissioner has access. The commissioner must ensure the report is destroyed as soon as practicable after it is no longer needed for the purpose for which it was requested. (sec.45-ssec.1) This section applies for deciding an application for a cultural recognition order if the person the subject of the application is a child. (sec.45-ssec.2) The commissioner may ask the police commissioner for a written report about a cultural parent’s criminal history that includes a brief description of the circumstances of a conviction mentioned in the criminal history. (sec.45-ssec.3) The police commissioner must comply with the request. (sec.45-ssec.4) The duty to comply applies only to information the police commissioner has possession of or to which the police commissioner has access. (sec.45-ssec.5) The commissioner must ensure the report is destroyed as soon as practicable after it is no longer needed for the purpose for which it was requested.

sec.46 Dealing with criminal history report

This section applies if the commissioner receives a report about a cultural parent’s criminal history. As soon as practicable after receiving the report the commissioner must give written notice to the cultural parent. The written notice must include a copy of the report and state— that the cultural parent may within 30 business days after receiving the notice give the commissioner information or documents about any information contained in the report; and that the cultural parent may request that the commissioner extend the period mentioned in paragraph (a) . If the cultural parent makes a request to extend the period mentioned in subsection (3) (a) , the commissioner may extend the period by notice given to the person. (sec.46-ssec.1) This section applies if the commissioner receives a report about a cultural parent’s criminal history. (sec.46-ssec.2) As soon as practicable after receiving the report the commissioner must give written notice to the cultural parent. (sec.46-ssec.3) The written notice must include a copy of the report and state— that the cultural parent may within 30 business days after receiving the notice give the commissioner information or documents about any information contained in the report; and that the cultural parent may request that the commissioner extend the period mentioned in paragraph (a) . (sec.46-ssec.4) If the cultural parent makes a request to extend the period mentioned in subsection (3) (a) , the commissioner may extend the period by notice given to the person.

• (a) that the cultural parent may within 30 business days after receiving the notice give the commissioner information or documents about any information contained in the report; and
• (b) that the cultural parent may request that the commissioner extend the period mentioned in paragraph (a) .

Dispensing with a person’s consent

sec.47 Application of division

This division applies if an applicant for a cultural recognition order is not able to make the application for the order with the consent of any of the following persons— a birth parent; a cultural parent; if the child has an other carer—the other carer.

• (a) a birth parent;
• (b) a cultural parent;
• (c) if the child has an other carer—the other carer.

sec.48 Application for dispensation

If an applicant for a cultural recognition order is not able to apply for a cultural recognition order with the consent of a party whose consent is otherwise required, the applicant may apply to a court for an order dispensing with the need for the consent of the party (the stated party ). The application must state the grounds on which it is made. (sec.48-ssec.1) If an applicant for a cultural recognition order is not able to apply for a cultural recognition order with the consent of a party whose consent is otherwise required, the applicant may apply to a court for an order dispensing with the need for the consent of the party (the stated party ). (sec.48-ssec.2) The application must state the grounds on which it is made.

sec.49 Notice of application

As soon as practicable after filing an application for an order dispensing with the need for the consent of a stated party, the applicant must serve a copy of the application on— the stated party; and each other party who is an applicant for the cultural recognition order; and the commissioner. A served copy must state where and when the application is to be heard. A copy served on the stated party must also state that the application may be heard and decided even though the party does not appear in court. The court may dispense with the requirement to serve a copy of the application on the stated party if the court is satisfied of any of the following matters— the applicant can not establish the identity of the party after making all reasonable enquiries; the applicant can not locate the party after making all reasonable enquiries; the conception of the person the subject of the application for a cultural recognition order was a result of an offence committed by the party; there would be an unacceptable risk of harm to the birth mother of the person the subject of the application for a cultural recognition order if the party were made aware of the person’s birth or the application for a cultural recognition order; there are other special circumstances for dispensing with the requirement to serve a copy of the application. (sec.49-ssec.1) As soon as practicable after filing an application for an order dispensing with the need for the consent of a stated party, the applicant must serve a copy of the application on— the stated party; and each other party who is an applicant for the cultural recognition order; and the commissioner. (sec.49-ssec.2) A served copy must state where and when the application is to be heard. (sec.49-ssec.3) A copy served on the stated party must also state that the application may be heard and decided even though the party does not appear in court. (sec.49-ssec.4) The court may dispense with the requirement to serve a copy of the application on the stated party if the court is satisfied of any of the following matters— the applicant can not establish the identity of the party after making all reasonable enquiries; the applicant can not locate the party after making all reasonable enquiries; the conception of the person the subject of the application for a cultural recognition order was a result of an offence committed by the party; there would be an unacceptable risk of harm to the birth mother of the person the subject of the application for a cultural recognition order if the party were made aware of the person’s birth or the application for a cultural recognition order; there are other special circumstances for dispensing with the requirement to serve a copy of the application.

• (a) the stated party; and
• (b) each other party who is an applicant for the cultural recognition order; and
• (c) the commissioner.
• (a) the applicant can not establish the identity of the party after making all reasonable enquiries;
• (b) the applicant can not locate the party after making all reasonable enquiries;
• (c) the conception of the person the subject of the application for a cultural recognition order was a result of an offence committed by the party;
• (d) there would be an unacceptable risk of harm to the birth mother of the person the subject of the application for a cultural recognition order if the party were made aware of the person’s birth or the application for a cultural recognition order;
• (e) there are other special circumstances for dispensing with the requirement to serve a copy of the application.

sec.50 Respondent

If a stated party is served with a copy of an application for an order dispensing with the need for the stated party’s consent to an application for a cultural recognition order, the stated party is a respondent in the proceeding.

sec.51 Hearing of application in absence of stated party

The court may hear and decide an application for an order dispensing with the need for the consent of a stated party in the absence of the party only if— the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or the court dispenses with the requirement to serve a copy of the application on the party under section 49 (4) . Subsection (1) does not limit the court’s jurisdiction to exclude a person from a proceeding. (sec.51-ssec.1) The court may hear and decide an application for an order dispensing with the need for the consent of a stated party in the absence of the party only if— the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or the court dispenses with the requirement to serve a copy of the application on the party under section 49 (4) . (sec.51-ssec.2) Subsection (1) does not limit the court’s jurisdiction to exclude a person from a proceeding.

• (a) the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or
• (b) the court dispenses with the requirement to serve a copy of the application on the party under section 49 (4) .

sec.52 Court may dispense with need for consent

The court may make an order (a dispensation order ) dispensing with the need for the consent of a stated party as part of the application for a cultural recognition order if— the court is satisfied of a matter stated in section 49 (4) (a) to (d) ; or QCAT has made a declaration that the party does not have capacity to give the consent; or a court or tribunal of another jurisdiction has made an order or other direction, however called, that the party does not have capacity to give the consent; or the court is satisfied there are other special circumstances for giving the dispensation. However, if the person the subject of the application for a cultural recognition order is a child and the stated party is or is believed to be the person’s birth parent, the court must not give the dispensation— within 30 days after notice is given to the party under section 49 ; or if the court has reason to believe there is— a current application under the Status of Children Act 1978 , section 10 , by the party or another person, for a declaration of parentage for the child; or a current application under the Family Law Act 1975 (Cwlth) by the party for a parenting order for the child. (sec.52-ssec.1) The court may make an order (a dispensation order ) dispensing with the need for the consent of a stated party as part of the application for a cultural recognition order if— the court is satisfied of a matter stated in section 49 (4) (a) to (d) ; or QCAT has made a declaration that the party does not have capacity to give the consent; or a court or tribunal of another jurisdiction has made an order or other direction, however called, that the party does not have capacity to give the consent; or the court is satisfied there are other special circumstances for giving the dispensation. (sec.52-ssec.2) However, if the person the subject of the application for a cultural recognition order is a child and the stated party is or is believed to be the person’s birth parent, the court must not give the dispensation— within 30 days after notice is given to the party under section 49 ; or if the court has reason to believe there is— a current application under the Status of Children Act 1978 , section 10 , by the party or another person, for a declaration of parentage for the child; or a current application under the Family Law Act 1975 (Cwlth) by the party for a parenting order for the child.

• (a) the court is satisfied of a matter stated in section 49 (4) (a) to (d) ; or
• (b) QCAT has made a declaration that the party does not have capacity to give the consent; or
• (c) a court or tribunal of another jurisdiction has made an order or other direction, however called, that the party does not have capacity to give the consent; or
• (d) the court is satisfied there are other special circumstances for giving the dispensation.
• (a) within 30 days after notice is given to the party under section 49 ; or
• (b) if the court has reason to believe there is— (i) a current application under the Status of Children Act 1978 , section 10 , by the party or another person, for a declaration of parentage for the child; or (ii) a current application under the Family Law Act 1975 (Cwlth) by the party for a parenting order for the child.
• (i) a current application under the Status of Children Act 1978 , section 10 , by the party or another person, for a declaration of parentage for the child; or
• (ii) a current application under the Family Law Act 1975 (Cwlth) by the party for a parenting order for the child.
• (i) a current application under the Status of Children Act 1978 , section 10 , by the party or another person, for a declaration of parentage for the child; or
• (ii) a current application under the Family Law Act 1975 (Cwlth) by the party for a parenting order for the child.

sec.53 Notice of court order

If a court makes a dispensation order, the applicant must give the commissioner a copy of the order.

sec.54 Effect of order

This section applies if the commissioner is given a copy of a dispensation order under section 53 . The commissioner must continue to consider and decide the application for a cultural recognition order without the need for the consent of the stated party. (sec.54-ssec.1) This section applies if the commissioner is given a copy of a dispensation order under section 53 . (sec.54-ssec.2) The commissioner must continue to consider and decide the application for a cultural recognition order without the need for the consent of the stated party.

Discharge of dispensation order

sec.55 Discharge of dispensation order if stated party not served with application

This section applies if— a court makes a dispensation order; and a copy of the application for the order was not served on a stated party. The party may apply to the court to discharge the dispensation order. The applicant must serve a copy of the application for discharge of the dispensation order on each other person who was a party to the proceeding for the dispensation order. The court may discharge the dispensation order if— a cultural recognition order has not been made; and the court is satisfied a ground on which the dispensation order was made under section 52 does not apply. (sec.55-ssec.1) This section applies if— a court makes a dispensation order; and a copy of the application for the order was not served on a stated party. (sec.55-ssec.2) The party may apply to the court to discharge the dispensation order. (sec.55-ssec.3) The applicant must serve a copy of the application for discharge of the dispensation order on each other person who was a party to the proceeding for the dispensation order. (sec.55-ssec.4) The court may discharge the dispensation order if— a cultural recognition order has not been made; and the court is satisfied a ground on which the dispensation order was made under section 52 does not apply.

• (a) a court makes a dispensation order; and
• (b) a copy of the application for the order was not served on a stated party.
• (a) a cultural recognition order has not been made; and
• (b) the court is satisfied a ground on which the dispensation order was made under section 52 does not apply.

Deciding whether to make cultural recognition orders

sec.56 Considerations before making decision

Before deciding to make a cultural recognition order the commissioner must be satisfied— that, subject to any dispensation order, each birth parent and cultural parent gave full, free and informed consent to the making of the application for the order; and if the application contains a signed statement from an other carer—the other carer gave full, free and informed consent to the making of the application; and if the person the subject of the application for the order is a child—that the making of the order is for the wellbeing and in the best interests of the child; and that the transfer of parentage occurred in accordance with Ailan Kastom child rearing practice; and that each applicant was entitled to apply under section 32 ; and that the requirements mentioned in section 34 are satisfied; and that each applicant has provided the required information or statement.

• (a) that, subject to any dispensation order, each birth parent and cultural parent gave full, free and informed consent to the making of the application for the order; and
• (b) if the application contains a signed statement from an other carer—the other carer gave full, free and informed consent to the making of the application; and
• (c) if the person the subject of the application for the order is a child—that the making of the order is for the wellbeing and in the best interests of the child; and
• (d) that the transfer of parentage occurred in accordance with Ailan Kastom child rearing practice; and
• (e) that each applicant was entitled to apply under section 32 ; and
• (f) that the requirements mentioned in section 34 are satisfied; and
• (g) that each applicant has provided the required information or statement.

sec.57 Notice of intention before deciding not to make cultural recognition order

If the commissioner is considering not making a cultural recognition order, the commissioner must give each party to the application for the order a notice (a notice of intention ) that states— the reasons the commissioner is considering not making the order; and that an applicant may within 30 business days after receiving the notice of intention give the commissioner information or documents not included in the application that support the making of the order; and that an applicant may request that the commissioner extend the period mentioned in paragraph (b) . If an applicant makes a request under subsection (1) (c) , the commissioner may extend the period mentioned in subsection (1) (b) by notice given to the applicant. (sec.57-ssec.1) If the commissioner is considering not making a cultural recognition order, the commissioner must give each party to the application for the order a notice (a notice of intention ) that states— the reasons the commissioner is considering not making the order; and that an applicant may within 30 business days after receiving the notice of intention give the commissioner information or documents not included in the application that support the making of the order; and that an applicant may request that the commissioner extend the period mentioned in paragraph (b) . (sec.57-ssec.2) If an applicant makes a request under subsection (1) (c) , the commissioner may extend the period mentioned in subsection (1) (b) by notice given to the applicant.

• (a) the reasons the commissioner is considering not making the order; and
• (b) that an applicant may within 30 business days after receiving the notice of intention give the commissioner information or documents not included in the application that support the making of the order; and
• (c) that an applicant may request that the commissioner extend the period mentioned in paragraph (b) .

sec.58 Deciding about cultural recognition order

After having regard to the information in an application for a cultural recognition order and information or documents given under section 57 , the commissioner must decide— to make a cultural recognition order; or not to make a cultural recognition order. If the person the subject of the application for the cultural recognition order is a child, the commissioner must give each party to the application— a statement of reasons for the decision; and if the decision is to make an order—a copy of the order. If the applicant is an adult who is the subject of the application, the commissioner must give to the applicant and the applicant’s birth parents and cultural parents— a statement of reasons for the decision; and if the decision is to make an order—a copy of the order. (sec.58-ssec.1) After having regard to the information in an application for a cultural recognition order and information or documents given under section 57 , the commissioner must decide— to make a cultural recognition order; or not to make a cultural recognition order. (sec.58-ssec.2) If the person the subject of the application for the cultural recognition order is a child, the commissioner must give each party to the application— a statement of reasons for the decision; and if the decision is to make an order—a copy of the order. (sec.58-ssec.3) If the applicant is an adult who is the subject of the application, the commissioner must give to the applicant and the applicant’s birth parents and cultural parents— a statement of reasons for the decision; and if the decision is to make an order—a copy of the order.

• (a) to make a cultural recognition order; or
• (b) not to make a cultural recognition order.
• (a) a statement of reasons for the decision; and
• (b) if the decision is to make an order—a copy of the order.
• (a) a statement of reasons for the decision; and
• (b) if the decision is to make an order—a copy of the order.

sec.59 What cultural recognition order must state

If the commissioner makes a cultural recognition order about a person, the order must state the following information— that the order is made under this Act in recognition of Ailan Kastom; the person’s name; the name of each of the person’s birth parents and cultural parents; that the person’s parentage is transferred from the birth parents to the cultural parents; the date of the decision; any other information prescribed by regulation.

• (a) that the order is made under this Act in recognition of Ailan Kastom;
• (b) the person’s name;
• (c) the name of each of the person’s birth parents and cultural parents;
• (d) that the person’s parentage is transferred from the birth parents to the cultural parents;
• (e) the date of the decision;
• (f) any other information prescribed by regulation.

Internal review

sec.60 Application for internal review

If the commissioner decides to not make a cultural recognition order the parties to the application for the order may apply to the Minister for a review of the decision (an application for internal review ). The application for internal review must be made— in the approved form; and jointly by the parties; and within 20 business days after the statement of reasons for the decision was given to the parties. The Minister may, at any time, extend the period within which the application for internal review may be made. (sec.60-ssec.1) If the commissioner decides to not make a cultural recognition order the parties to the application for the order may apply to the Minister for a review of the decision (an application for internal review ). (sec.60-ssec.2) The application for internal review must be made— in the approved form; and jointly by the parties; and within 20 business days after the statement of reasons for the decision was given to the parties. (sec.60-ssec.3) The Minister may, at any time, extend the period within which the application for internal review may be made.

• (a) in the approved form; and
• (b) jointly by the parties; and
• (c) within 20 business days after the statement of reasons for the decision was given to the parties.

sec.61 Internal review

Within 20 business days after the Minister receives an application for internal review, the Minister must appoint a person (the review officer ), other than the commissioner, to review the commissioner’s decision. The Minister may appoint a person as the review officer if the Minister is satisfied the person is appropriately qualified. The review officer must— consider the application; and review the commissioner’s decision; and make a decision (the reviewed decision ) to— confirm the commissioner’s decision; or revoke the commissioner’s decision and make a cultural recognition order; and give a statement of reasons for the reviewed decision to— the parties to the application for internal review; and the commissioner. (sec.61-ssec.1) Within 20 business days after the Minister receives an application for internal review, the Minister must appoint a person (the review officer ), other than the commissioner, to review the commissioner’s decision. (sec.61-ssec.2) The Minister may appoint a person as the review officer if the Minister is satisfied the person is appropriately qualified. (sec.61-ssec.3) The review officer must— consider the application; and review the commissioner’s decision; and make a decision (the reviewed decision ) to— confirm the commissioner’s decision; or revoke the commissioner’s decision and make a cultural recognition order; and give a statement of reasons for the reviewed decision to— the parties to the application for internal review; and the commissioner.

• (a) consider the application; and
• (b) review the commissioner’s decision; and
• (c) make a decision (the reviewed decision ) to— (i) confirm the commissioner’s decision; or (ii) revoke the commissioner’s decision and make a cultural recognition order; and
• (i) confirm the commissioner’s decision; or
• (ii) revoke the commissioner’s decision and make a cultural recognition order; and
• (d) give a statement of reasons for the reviewed decision to— (i) the parties to the application for internal review; and (ii) the commissioner.
• (i) the parties to the application for internal review; and
• (ii) the commissioner.
• (i) confirm the commissioner’s decision; or
• (ii) revoke the commissioner’s decision and make a cultural recognition order; and
• (i) the parties to the application for internal review; and
• (ii) the commissioner.

sec.62 Effect of review officer’s decision to make a cultural recognition order

If the review officer revokes the commissioner’s decision and makes a cultural recognition order— the reviewed decision is taken to be a decision of the commissioner; and the commissioner must give effect to the decision as if— the decision were the commissioner’s decision; and no application for internal review had been made.

• (a) the reviewed decision is taken to be a decision of the commissioner; and
• (b) the commissioner must give effect to the decision as if— (i) the decision were the commissioner’s decision; and (ii) no application for internal review had been made.
• (i) the decision were the commissioner’s decision; and
• (ii) no application for internal review had been made.
• (i) the decision were the commissioner’s decision; and
• (ii) no application for internal review had been made.

Registration of cultural recognition orders

sec.63 Commissioner must notify registrar

As soon as practicable after a cultural recognition order is made by the commissioner, the commissioner must give a copy of the order to the registrar.

sec.64 Entitlement to certificate, information relating to particular entries

This section applies to each of the following persons— a person who was an applicant for a cultural recognition order that was made by the commissioner; an adult who was the subject of a cultural recognition order; if a person mentioned in paragraph (a) or (b) has a guardian—the person’s guardian. On request by a person mentioned in subsection (1) , the commissioner must give the person an authorisation to obtain a certificate, information, source document or a copy of the cultural recognition order under this section. However, the authorisation may exclude information if the commissioner is satisfied that allowing access to the certificate, information, source document or the copy of the cultural recognition order would be an unreasonable invasion of a person’s privacy or otherwise unreasonably harm a person’s interests. The authorisation may exclude a part of a document showing a person’s birth was the result of a sexual offence. The person may make an application, accompanied by an authorisation from the commissioner— under the Births, Deaths and Marriages Registration Act 2023 , section 110 for information or a copy of a source document to which the authorisation relates; or under the Births, Deaths and Marriages Registration Act 2023 , section 112 for a certificate to which the authorisation relates. The registrar must grant the application if it relates to an entry about the cultural recognition order in the register of births and the cultural recognition register. Information given by the registrar under this section and relating to a closed entry may be given in the form the registrar considers appropriate. In this section— closed entry means an entry that has been closed under the Births, Deaths and Marriages Registration Act 2023 , section 19 , 21 , 36 or 43 . cultural recognition register means the register, maintained under the Births, Deaths and Marriages Registration Act 2023 , section 104 , for cultural recognition orders made under this Act. source document see the Births, Deaths and Marriages Registration Act 2023 , schedule 1 . s 64 amd 2023 No. 17 s 177 (sec.64-ssec.1) This section applies to each of the following persons— a person who was an applicant for a cultural recognition order that was made by the commissioner; an adult who was the subject of a cultural recognition order; if a person mentioned in paragraph (a) or (b) has a guardian—the person’s guardian. (sec.64-ssec.2) On request by a person mentioned in subsection (1) , the commissioner must give the person an authorisation to obtain a certificate, information, source document or a copy of the cultural recognition order under this section. (sec.64-ssec.3) However, the authorisation may exclude information if the commissioner is satisfied that allowing access to the certificate, information, source document or the copy of the cultural recognition order would be an unreasonable invasion of a person’s privacy or otherwise unreasonably harm a person’s interests. The authorisation may exclude a part of a document showing a person’s birth was the result of a sexual offence. (sec.64-ssec.4) The person may make an application, accompanied by an authorisation from the commissioner— under the Births, Deaths and Marriages Registration Act 2023 , section 110 for information or a copy of a source document to which the authorisation relates; or under the Births, Deaths and Marriages Registration Act 2023 , section 112 for a certificate to which the authorisation relates. (sec.64-ssec.5) The registrar must grant the application if it relates to an entry about the cultural recognition order in the register of births and the cultural recognition register. (sec.64-ssec.6) Information given by the registrar under this section and relating to a closed entry may be given in the form the registrar considers appropriate. (sec.64-ssec.7) In this section— closed entry means an entry that has been closed under the Births, Deaths and Marriages Registration Act 2023 , section 19 , 21 , 36 or 43 . cultural recognition register means the register, maintained under the Births, Deaths and Marriages Registration Act 2023 , section 104 , for cultural recognition orders made under this Act. source document see the Births, Deaths and Marriages Registration Act 2023 , schedule 1 .

• (a) a person who was an applicant for a cultural recognition order that was made by the commissioner;
• (b) an adult who was the subject of a cultural recognition order;
• (c) if a person mentioned in paragraph (a) or (b) has a guardian—the person’s guardian.
• (a) under the Births, Deaths and Marriages Registration Act 2023 , section 110 for information or a copy of a source document to which the authorisation relates; or
• (b) under the Births, Deaths and Marriages Registration Act 2023 , section 112 for a certificate to which the authorisation relates.

Effect of cultural recognition orders

sec.65 Application of part

This part applies if the commissioner makes a cultural recognition order.

sec.66 Effect on relationships

On the making of a cultural recognition order about a person— the person’s parentage is transferred from the birth parents to the cultural parents; and the person becomes a child of the cultural parents; and the cultural parents become the parents of the person; and the person stops being a child of the birth parents; and a birth parent stops being a parent of the person. Other relationships are determined in accordance with subsection (1) . However, for the purpose of applying a law relating to a sexual offence where a familial relationship is relevant, the person is taken to have— the familial relationship that existed before the making of the order; and the familial relationship resulting from the making of the order. (sec.66-ssec.1) On the making of a cultural recognition order about a person— the person’s parentage is transferred from the birth parents to the cultural parents; and the person becomes a child of the cultural parents; and the cultural parents become the parents of the person; and the person stops being a child of the birth parents; and a birth parent stops being a parent of the person. (sec.66-ssec.2) Other relationships are determined in accordance with subsection (1) . (sec.66-ssec.3) However, for the purpose of applying a law relating to a sexual offence where a familial relationship is relevant, the person is taken to have— the familial relationship that existed before the making of the order; and the familial relationship resulting from the making of the order.

• (a) the person’s parentage is transferred from the birth parents to the cultural parents; and
• (b) the person becomes a child of the cultural parents; and
• (c) the cultural parents become the parents of the person; and
• (d) the person stops being a child of the birth parents; and
• (e) a birth parent stops being a parent of the person.
• (a) the familial relationship that existed before the making of the order; and
• (b) the familial relationship resulting from the making of the order.

sec.67 Effect on disposal of property

Section 66 (1) and (2) have effect in relation to— dispositions of property, whether by will or otherwise; and devolutions of property in relation to which a person dies intestate. However, section 66 does not affect the operation of a will or other instrument that distinguishes between a person about whom a cultural recognition order is made and another person about whom a cultural recognition order has not been made. (sec.67-ssec.1) Section 66 (1) and (2) have effect in relation to— dispositions of property, whether by will or otherwise; and devolutions of property in relation to which a person dies intestate. (sec.67-ssec.2) However, section 66 does not affect the operation of a will or other instrument that distinguishes between a person about whom a cultural recognition order is made and another person about whom a cultural recognition order has not been made.

• (a) dispositions of property, whether by will or otherwise; and
• (b) devolutions of property in relation to which a person dies intestate.

sec.68 Public trustee to make inquiries if bequest to unlocatable person

This section applies if— under a will made after the commencement, a testator makes a disposition of property to a person— who is described as being a child of the testator or of another person; and whose parentage was transferred to another person or persons as a result of a cultural recognition order; and the personal representative of the testator is unable to determine the name and address of the person. The personal representative must give the public trustee a copy of the will and a notice stating that the personal representative is unable to determine the name and address of the person. On receipt of the copy and notice, the public trustee must take steps to determine the name and address of the person and, if the person has died, the date of the death, by asking for information from— the commissioner; and the registrar under the Births, Deaths and Marriages Registration Act 2023 . Despite any other Act or law, if the commissioner receives a request from the public trustee under subsection (3) , the commissioner must give the public trustee the name and address of the person held in the commissioner’s records. The Births, Deaths and Marriages Registration Act 2023 , sections 110 and 111 does not apply to a request for information made under subsection (3) to the registrar under that Act. After taking the steps mentioned in subsection (3) , the public trustee must give a notice to the personal representative stating— that the public trustee has been able to determine— the person’s name; or the person’s address; or the death of the person; and to the extent the public trustee is unable to determine the name or address of the person or whether the person has died, what details the public trustee has been unable to determine. s 68 amd 2023 No. 17 s 178 (sec.68-ssec.1) This section applies if— under a will made after the commencement, a testator makes a disposition of property to a person— who is described as being a child of the testator or of another person; and whose parentage was transferred to another person or persons as a result of a cultural recognition order; and the personal representative of the testator is unable to determine the name and address of the person. (sec.68-ssec.2) The personal representative must give the public trustee a copy of the will and a notice stating that the personal representative is unable to determine the name and address of the person. (sec.68-ssec.3) On receipt of the copy and notice, the public trustee must take steps to determine the name and address of the person and, if the person has died, the date of the death, by asking for information from— the commissioner; and the registrar under the Births, Deaths and Marriages Registration Act 2023 . (sec.68-ssec.4) Despite any other Act or law, if the commissioner receives a request from the public trustee under subsection (3) , the commissioner must give the public trustee the name and address of the person held in the commissioner’s records. (sec.68-ssec.5) The Births, Deaths and Marriages Registration Act 2023 , sections 110 and 111 does not apply to a request for information made under subsection (3) to the registrar under that Act. (sec.68-ssec.6) After taking the steps mentioned in subsection (3) , the public trustee must give a notice to the personal representative stating— that the public trustee has been able to determine— the person’s name; or the person’s address; or the death of the person; and to the extent the public trustee is unable to determine the name or address of the person or whether the person has died, what details the public trustee has been unable to determine.

• (a) under a will made after the commencement, a testator makes a disposition of property to a person— (i) who is described as being a child of the testator or of another person; and (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and
• (i) who is described as being a child of the testator or of another person; and
• (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and
• (b) the personal representative of the testator is unable to determine the name and address of the person.
• (i) who is described as being a child of the testator or of another person; and
• (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and
• (a) the commissioner; and
• (b) the registrar under the Births, Deaths and Marriages Registration Act 2023 .
• (a) that the public trustee has been able to determine— (i) the person’s name; or (ii) the person’s address; or (iii) the death of the person; and
• (i) the person’s name; or
• (ii) the person’s address; or
• (iii) the death of the person; and
• (b) to the extent the public trustee is unable to determine the name or address of the person or whether the person has died, what details the public trustee has been unable to determine.
• (i) the person’s name; or
• (ii) the person’s address; or
• (iii) the death of the person; and

sec.69 Public trustee is trustee if bequest to unlocatable person

This section applies if— under a will made after the commencement, a testator makes a disposition of property to a person— who is described as being a child of the testator or of another person; and whose parentage was transferred to another person or persons as a result of a cultural recognition order; and the personal representative of the testator is given a notice by the public trustee under section 68 (6) . The public trustee is a trustee for the person on the trusts stated in, or arising under, the will. If the personal representative transfers property to the public trustee as trustee for the person, the personal representative is taken to have transferred the property to the person. Subsections (2) and (3) do not apply if the person died before the testator or, for another reason, is not entitled to an interest under the will. If the public trustee gives the personal representative a notice that the person has disclaimed property to which the person was entitled under the will, the notice is, for the purpose of administering the estate, sufficient evidence that the person has disclaimed the property. (sec.69-ssec.1) This section applies if— under a will made after the commencement, a testator makes a disposition of property to a person— who is described as being a child of the testator or of another person; and whose parentage was transferred to another person or persons as a result of a cultural recognition order; and the personal representative of the testator is given a notice by the public trustee under section 68 (6) . (sec.69-ssec.2) The public trustee is a trustee for the person on the trusts stated in, or arising under, the will. (sec.69-ssec.3) If the personal representative transfers property to the public trustee as trustee for the person, the personal representative is taken to have transferred the property to the person. (sec.69-ssec.4) Subsections (2) and (3) do not apply if the person died before the testator or, for another reason, is not entitled to an interest under the will. (sec.69-ssec.5) If the public trustee gives the personal representative a notice that the person has disclaimed property to which the person was entitled under the will, the notice is, for the purpose of administering the estate, sufficient evidence that the person has disclaimed the property.

• (a) under a will made after the commencement, a testator makes a disposition of property to a person— (i) who is described as being a child of the testator or of another person; and (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and
• (i) who is described as being a child of the testator or of another person; and
• (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and
• (b) the personal representative of the testator is given a notice by the public trustee under section 68 (6) .
• (i) who is described as being a child of the testator or of another person; and
• (ii) whose parentage was transferred to another person or persons as a result of a cultural recognition order; and

sec.70 Public trustee’s fees for involvement

The public trustee may charge fees for taking steps under section 68 (3) or (6) or for acting as trustee under section 69 . The personal representative of the testator must pay to the public trustee out of the testator’s estate any fees charged by the public trustee under subsection (1) and any fees or costs incurred by the public trustee in taking steps under section 68 (3) or (6) . (sec.70-ssec.1) The public trustee may charge fees for taking steps under section 68 (3) or (6) or for acting as trustee under section 69 . (sec.70-ssec.2) The personal representative of the testator must pay to the public trustee out of the testator’s estate any fees charged by the public trustee under subsection (1) and any fees or costs incurred by the public trustee in taking steps under section 68 (3) or (6) .

sec.71 Transfer or distribution of property by trustee

Subject to this section, a trustee may transfer or distribute property to a person who appears entitled to it without finding out whether the person’s entitlement is affected by a cultural recognition order. A trustee who transfers or distributes property under subsection (1) is not liable to a person claiming directly or indirectly because of an order unless the trustee has written or other notice of the claim before the transfer or distribution. This section does not affect a person’s right to follow property into the hands of a person, other than a purchaser for value, who has received it. In this section— trustee includes a personal representative of the testator. (sec.71-ssec.1) Subject to this section, a trustee may transfer or distribute property to a person who appears entitled to it without finding out whether the person’s entitlement is affected by a cultural recognition order. (sec.71-ssec.2) A trustee who transfers or distributes property under subsection (1) is not liable to a person claiming directly or indirectly because of an order unless the trustee has written or other notice of the claim before the transfer or distribution. (sec.71-ssec.3) This section does not affect a person’s right to follow property into the hands of a person, other than a purchaser for value, who has received it. (sec.71-ssec.4) In this section— trustee includes a personal representative of the testator.

Discharge of cultural recognition order

sec.72 Definition for part

In this part— relevant party means— for a cultural recognition order about a child— a birth parent of the child; or a cultural parent of the child; or for a cultural recognition order about an adult— the adult; or a birth parent of the adult; or a cultural parent of the adult.

• (a) for a cultural recognition order about a child— (i) a birth parent of the child; or (ii) a cultural parent of the child; or
• (i) a birth parent of the child; or
• (ii) a cultural parent of the child; or
• (b) for a cultural recognition order about an adult— (i) the adult; or (ii) a birth parent of the adult; or (iii) a cultural parent of the adult.
• (i) the adult; or
• (ii) a birth parent of the adult; or
• (iii) a cultural parent of the adult.
• (i) a birth parent of the child; or
• (ii) a cultural parent of the child; or
• (i) the adult; or
• (ii) a birth parent of the adult; or
• (iii) a cultural parent of the adult.

sec.73 Grounds for discharge

A relevant party for a cultural recognition order may apply to the court for an order (a discharge order ) discharging the cultural recognition order on any of the following grounds— the order was made— because of a false or misleading document or representation; or because a person acted fraudulently or used undue influence on another person; or because a person did not provide full, free and informed consent; or on some other improper basis; or there are other exceptional circumstances that warrant the discharge. In this section— undue influence includes— the use or threatened use of force or restraint; and causing or threatening to cause injury; and causing or threatening to cause any other detriment. (sec.73-ssec.1) A relevant party for a cultural recognition order may apply to the court for an order (a discharge order ) discharging the cultural recognition order on any of the following grounds— the order was made— because of a false or misleading document or representation; or because a person acted fraudulently or used undue influence on another person; or because a person did not provide full, free and informed consent; or on some other improper basis; or there are other exceptional circumstances that warrant the discharge. (sec.73-ssec.2) In this section— undue influence includes— the use or threatened use of force or restraint; and causing or threatening to cause injury; and causing or threatening to cause any other detriment.

• (a) the order was made— (i) because of a false or misleading document or representation; or (ii) because a person acted fraudulently or used undue influence on another person; or (iii) because a person did not provide full, free and informed consent; or (iv) on some other improper basis; or
• (i) because of a false or misleading document or representation; or
• (ii) because a person acted fraudulently or used undue influence on another person; or
• (iii) because a person did not provide full, free and informed consent; or
• (iv) on some other improper basis; or
• (b) there are other exceptional circumstances that warrant the discharge.
• (i) because of a false or misleading document or representation; or
• (ii) because a person acted fraudulently or used undue influence on another person; or
• (iii) because a person did not provide full, free and informed consent; or
• (iv) on some other improper basis; or
• (a) the use or threatened use of force or restraint; and
• (b) causing or threatening to cause injury; and
• (c) causing or threatening to cause any other detriment.

sec.74 Application for discharge order

An application for a discharge order must be made to a court. The application must state the ground on which it is made. As soon as practicable after filing the application in the court, the applicant must serve a copy of it on— each person— other than the applicant, who was a relevant party for the cultural recognition order; and who was required to consent to the application for the cultural recognition order; and the commissioner. A served copy of the application for a discharge order must state where and when the application is to be heard. The court may dispense with the requirement to serve a copy of the application on a person if the court is satisfied— the applicant can not locate the person after making all reasonable enquiries; or the person is deceased. (sec.74-ssec.1) An application for a discharge order must be made to a court. (sec.74-ssec.2) The application must state the ground on which it is made. (sec.74-ssec.3) As soon as practicable after filing the application in the court, the applicant must serve a copy of it on— each person— other than the applicant, who was a relevant party for the cultural recognition order; and who was required to consent to the application for the cultural recognition order; and the commissioner. (sec.74-ssec.4) A served copy of the application for a discharge order must state where and when the application is to be heard. (sec.74-ssec.5) The court may dispense with the requirement to serve a copy of the application on a person if the court is satisfied— the applicant can not locate the person after making all reasonable enquiries; or the person is deceased.

• (a) each person— (i) other than the applicant, who was a relevant party for the cultural recognition order; and (ii) who was required to consent to the application for the cultural recognition order; and
• (i) other than the applicant, who was a relevant party for the cultural recognition order; and
• (ii) who was required to consent to the application for the cultural recognition order; and
• (b) the commissioner.
• (i) other than the applicant, who was a relevant party for the cultural recognition order; and
• (ii) who was required to consent to the application for the cultural recognition order; and
• (a) the applicant can not locate the person after making all reasonable enquiries; or
• (b) the person is deceased.

sec.75 Respondent

A person, other than the commissioner, who is served with a copy of an application for a discharge order is a respondent in the proceeding.

sec.76 Hearing of application in absence of party

A court may hear and decide an application for a discharge order only— if the person the subject of a cultural recognition order is an adult—if the person or a lawyer representing the person appears in the proceeding; or if the person the subject of a cultural recognition order is a child—if the child’s birth parents and cultural parents appear in the proceeding. However, the court may hear and decide the application in the absence of a relevant party if— the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or the court dispenses with the requirement to serve a copy of the application on the party under section 74 (5) . Subsections (1) and (2) do not limit the court’s jurisdiction to exclude a person from a proceeding. (sec.76-ssec.1) A court may hear and decide an application for a discharge order only— if the person the subject of a cultural recognition order is an adult—if the person or a lawyer representing the person appears in the proceeding; or if the person the subject of a cultural recognition order is a child—if the child’s birth parents and cultural parents appear in the proceeding. (sec.76-ssec.2) However, the court may hear and decide the application in the absence of a relevant party if— the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or the court dispenses with the requirement to serve a copy of the application on the party under section 74 (5) . (sec.76-ssec.3) Subsections (1) and (2) do not limit the court’s jurisdiction to exclude a person from a proceeding.

• (a) if the person the subject of a cultural recognition order is an adult—if the person or a lawyer representing the person appears in the proceeding; or
• (b) if the person the subject of a cultural recognition order is a child—if the child’s birth parents and cultural parents appear in the proceeding.
• (a) the party has been given reasonable notice of the hearing and failed to attend or continue to attend the hearing; or
• (b) the court dispenses with the requirement to serve a copy of the application on the party under section 74 (5) .

sec.77 Court may make a discharge order

The court may make a discharge order only if satisfied of a ground mentioned in section 73 (1) . However, if an application for a discharge order is about a child who was the subject of a cultural recognition order, the court may only make a discharge order if it considers the discharge is for the wellbeing and in the best interests of the child. The discharge order must state the following information— the name of the person who applied for the discharge order; the name of the person about whom the cultural recognition order was made and the date the order was made; the date the discharge order is made; any other information prescribed by regulation. Also, if the court makes a discharge order, it may also— make any other order it considers appropriate in the interests of justice; and if the person the subject of the cultural recognition order is a child—make any other order to protect the wellbeing and best interests of the child. An order, other than a discharge order, made under subsection (4) may be about any matter relating to the wellbeing or best interests of the person, including, for example, any of the following matters— if the person the subject of the cultural recognition order is a child— the ownership of property; or the child’s name; or the custody or guardianship of the child; if the person the subject of the cultural recognition order is an adult—the ownership of property. (sec.77-ssec.1) The court may make a discharge order only if satisfied of a ground mentioned in section 73 (1) . (sec.77-ssec.2) However, if an application for a discharge order is about a child who was the subject of a cultural recognition order, the court may only make a discharge order if it considers the discharge is for the wellbeing and in the best interests of the child. (sec.77-ssec.3) The discharge order must state the following information— the name of the person who applied for the discharge order; the name of the person about whom the cultural recognition order was made and the date the order was made; the date the discharge order is made; any other information prescribed by regulation. (sec.77-ssec.4) Also, if the court makes a discharge order, it may also— make any other order it considers appropriate in the interests of justice; and if the person the subject of the cultural recognition order is a child—make any other order to protect the wellbeing and best interests of the child. (sec.77-ssec.5) An order, other than a discharge order, made under subsection (4) may be about any matter relating to the wellbeing or best interests of the person, including, for example, any of the following matters— if the person the subject of the cultural recognition order is a child— the ownership of property; or the child’s name; or the custody or guardianship of the child; if the person the subject of the cultural recognition order is an adult—the ownership of property.

• (a) the name of the person who applied for the discharge order;
• (b) the name of the person about whom the cultural recognition order was made and the date the order was made;
• (c) the date the discharge order is made;
• (d) any other information prescribed by regulation.
• (a) make any other order it considers appropriate in the interests of justice; and
• (b) if the person the subject of the cultural recognition order is a child—make any other order to protect the wellbeing and best interests of the child.
• (a) if the person the subject of the cultural recognition order is a child— (i) the ownership of property; or (ii) the child’s name; or (iii) the custody or guardianship of the child;
• (i) the ownership of property; or
• (ii) the child’s name; or
• (iii) the custody or guardianship of the child;
• (b) if the person the subject of the cultural recognition order is an adult—the ownership of property.
• (i) the ownership of property; or
• (ii) the child’s name; or
• (iii) the custody or guardianship of the child;

sec.78 Effect of discharge order

On the making of a discharge order discharging a cultural recognition order, the rights, privileges, duties, liabilities and relationships of the person and each relevant party to the cultural recognition order are the same as if the cultural recognition order had not been made. However, the making of the discharge order does not affect— anything lawfully done, or the consequences of anything lawfully done, while the cultural recognition order was in force; or a right, privilege or liability acquired, accrued or incurred while the cultural recognition order was in force. Also, for the purpose of applying a law relating to a sexual offence where a familial relationship is relevant, the person is taken to have— the familial relationships that resulted from the making of the cultural recognition order; and the familial relationships resulting from the making of the discharge order. (sec.78-ssec.1) On the making of a discharge order discharging a cultural recognition order, the rights, privileges, duties, liabilities and relationships of the person and each relevant party to the cultural recognition order are the same as if the cultural recognition order had not been made. (sec.78-ssec.2) However, the making of the discharge order does not affect— anything lawfully done, or the consequences of anything lawfully done, while the cultural recognition order was in force; or a right, privilege or liability acquired, accrued or incurred while the cultural recognition order was in force. (sec.78-ssec.3) Also, for the purpose of applying a law relating to a sexual offence where a familial relationship is relevant, the person is taken to have— the familial relationships that resulted from the making of the cultural recognition order; and the familial relationships resulting from the making of the discharge order.

• (a) anything lawfully done, or the consequences of anything lawfully done, while the cultural recognition order was in force; or
• (b) a right, privilege or liability acquired, accrued or incurred while the cultural recognition order was in force.
• (a) the familial relationships that resulted from the making of the cultural recognition order; and
• (b) the familial relationships resulting from the making of the discharge order.

sec.79 Applicant must give copy of order

As soon as practicable after a discharge order is made, the applicant for the discharge order must give a certified copy of the discharge order to— the registrar; and the commissioner.

• (a) the registrar; and
• (b) the commissioner.

Court proceedings

Preliminary

sec.80 Application of part 9

This part applies to a proceeding under this Act.

Constitution of court and procedural provisions

sec.81 Court’s constitution

When exercising its jurisdiction under this Act, a court must be constituted by a Childrens Court judge.

sec.82 Court rules

The Uniform Civil Procedure Rules 1999 apply in relation to proceedings under this Act as if the proceedings were proceedings in the District Court. However, the Uniform Civil Procedure Rules 1999 do not apply for a matter in relation to a proceeding in the Childrens Court that is provided for under rules of that court made under the Childrens Court Act 1992 . (sec.82-ssec.1) The Uniform Civil Procedure Rules 1999 apply in relation to proceedings under this Act as if the proceedings were proceedings in the District Court. (sec.82-ssec.2) However, the Uniform Civil Procedure Rules 1999 do not apply for a matter in relation to a proceeding in the Childrens Court that is provided for under rules of that court made under the Childrens Court Act 1992 .

sec.83 Court fees

A regulation made under the Supreme Court of Queensland Act 1991 about how fees are to be received and dealt with in the courts applies in relation to a proceeding in the Childrens Court under this Act as if the proceeding were a proceeding in the District Court.

sec.84 Court’s paramount consideration

In exercising its jurisdiction or powers under this Act a court must regard the wellbeing and best interests of a child as paramount.

sec.85 Evidence

A court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. If, on an application for an order under this Act, the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities. (sec.85-ssec.1) A court is not bound by the rules of evidence, but may inform itself in any way it thinks appropriate. (sec.85-ssec.2) If, on an application for an order under this Act, the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.

sec.86 Court to ensure parties understand proceeding

A court must, as far as practicable, ensure the parties to a proceeding understand the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court.

sec.87 Expert help

A court may appoint a person with special knowledge or a special skill to help the court. The court may act under subsection (1) on the court’s own initiative or on the application of a party to the proceeding. (sec.87-ssec.1) A court may appoint a person with special knowledge or a special skill to help the court. (sec.87-ssec.2) The court may act under subsection (1) on the court’s own initiative or on the application of a party to the proceeding.

sec.88 Right of appearance and representation

A party to a proceeding may appear in person or be represented by a lawyer. Also, if a party for any reason can not appear in person in a proceeding, another person appointed in writing by the party may, with the leave of the court, represent the party in the proceeding. (sec.88-ssec.1) A party to a proceeding may appear in person or be represented by a lawyer. (sec.88-ssec.2) Also, if a party for any reason can not appear in person in a proceeding, another person appointed in writing by the party may, with the leave of the court, represent the party in the proceeding.

sec.89 Child can not be compelled to give evidence

In a proceeding, a child may be called to give evidence only with the leave of the court. The court may grant leave only if the child— is at least 12 years; and is represented by a lawyer; and agrees to give evidence. If the child gives evidence, the child may be cross-examined only with the leave of the court. (sec.89-ssec.1) In a proceeding, a child may be called to give evidence only with the leave of the court. (sec.89-ssec.2) The court may grant leave only if the child— is at least 12 years; and is represented by a lawyer; and agrees to give evidence. (sec.89-ssec.3) If the child gives evidence, the child may be cross-examined only with the leave of the court.

• (a) is at least 12 years; and
• (b) is represented by a lawyer; and
• (c) agrees to give evidence.

sec.90 Court may hear submissions from non-parties to proceeding

In a proceeding, the court may hear submissions from the following persons— a member of the family of the child to whom the proceeding relates; anyone else the court considers is able to inform it on any matter relevant to the proceeding. A submission may be made by a person’s lawyer. (sec.90-ssec.1) In a proceeding, the court may hear submissions from the following persons— a member of the family of the child to whom the proceeding relates; anyone else the court considers is able to inform it on any matter relevant to the proceeding. (sec.90-ssec.2) A submission may be made by a person’s lawyer.

• (a) a member of the family of the child to whom the proceeding relates;
• (b) anyone else the court considers is able to inform it on any matter relevant to the proceeding.

sec.91 Costs

Each party to a proceeding must pay its own costs of the proceeding.

Appeals

sec.92 Who may appeal

A party may appeal to the appellate court against a decision on an application if— the party was an applicant for a dispensation order and the dispensation order was not made; or the party is a stated party and a dispensation order has been made about the party; or the party was an applicant for a discharge order and the discharge order was not made.

• (a) the party was an applicant for a dispensation order and the dispensation order was not made; or
• (b) the party is a stated party and a dispensation order has been made about the party; or
• (c) the party was an applicant for a discharge order and the discharge order was not made.

sec.93 How to start appeal

The appeal is started by filing a notice of appeal with the registrar of the appellate court. The appellant must serve a copy of the notice— if section 92 (a) or (c) applies—on each other person entitled to appeal against the decision; or if section 92 (b) applies—on the person who applied for the dispensation order. The notice of appeal must be filed within 28 days after the decision is made. The court may at any time extend the period for filing the notice of appeal. The notice of appeal must state fully the grounds of the appeal and the facts relied on. (sec.93-ssec.1) The appeal is started by filing a notice of appeal with the registrar of the appellate court. (sec.93-ssec.2) The appellant must serve a copy of the notice— if section 92 (a) or (c) applies—on each other person entitled to appeal against the decision; or if section 92 (b) applies—on the person who applied for the dispensation order. (sec.93-ssec.3) The notice of appeal must be filed within 28 days after the decision is made. (sec.93-ssec.4) The court may at any time extend the period for filing the notice of appeal. (sec.93-ssec.5) The notice of appeal must state fully the grounds of the appeal and the facts relied on.

• (a) if section 92 (a) or (c) applies—on each other person entitled to appeal against the decision; or
• (b) if section 92 (b) applies—on the person who applied for the dispensation order.

sec.94 Stay of decision

The appellate court may stay a decision appealed against to secure the effectiveness of the appeal. A stay— may be given on conditions; and operates for the period fixed by the court; and may be revoked or amended by the court. The period of a stay must not extend past the time when the court decides the appeal. The starting of an appeal against a decision affects the decision, or the carrying out of the decision, only if the decision is stayed. (sec.94-ssec.1) The appellate court may stay a decision appealed against to secure the effectiveness of the appeal. (sec.94-ssec.2) A stay— may be given on conditions; and operates for the period fixed by the court; and may be revoked or amended by the court. (sec.94-ssec.3) The period of a stay must not extend past the time when the court decides the appeal. (sec.94-ssec.4) The starting of an appeal against a decision affects the decision, or the carrying out of the decision, only if the decision is stayed.

• (a) may be given on conditions; and
• (b) operates for the period fixed by the court; and
• (c) may be revoked or amended by the court.

sec.95 Hearing procedures

An appeal must be decided on the evidence and proceedings before the court.

sec.96 Powers of appellate court

In deciding an appeal, the appellate court may— confirm the decision appealed against; or vary the decision appealed against; or set aside the decision appealed against and substitute another decision; or set aside the decision appealed against and remit the matter to the court that made the decision.

• (a) confirm the decision appealed against; or
• (b) vary the decision appealed against; or
• (c) set aside the decision appealed against and substitute another decision; or
• (d) set aside the decision appealed against and remit the matter to the court that made the decision.

General

sec.97 Court hearings not public

This section applies to the hearing in the court or the appellate court of a proceeding under this Act. The hearing for the proceeding is not open to the public. Despite section 20 of the Childrens Court Act 1992 , a court must exclude from the room in which the court is sitting a person who is not— a child to whom the proceedings relates: or an adult who is the subject of a cultural recognition order relevant to the proceeding; or an appellant; or a respondent; or if the proceeding relates to a child who is the subject of a cultural recognition order— the child’s birth parent; or the child’s cultural parent; or the child’s other carer; or the commissioner; or a lawyer of a party to the proceeding or of a person mentioned in paragraphs (a) to (e) (iii) ; or a witness giving evidence. However, the court may permit a person who is not mentioned in subsection (3) to be present during the hearing if the court is satisfied it is in the interests of justice to do so. (sec.97-ssec.1) This section applies to the hearing in the court or the appellate court of a proceeding under this Act. (sec.97-ssec.2) The hearing for the proceeding is not open to the public. (sec.97-ssec.3) Despite section 20 of the Childrens Court Act 1992 , a court must exclude from the room in which the court is sitting a person who is not— a child to whom the proceedings relates: or an adult who is the subject of a cultural recognition order relevant to the proceeding; or an appellant; or a respondent; or if the proceeding relates to a child who is the subject of a cultural recognition order— the child’s birth parent; or the child’s cultural parent; or the child’s other carer; or the commissioner; or a lawyer of a party to the proceeding or of a person mentioned in paragraphs (a) to (e) (iii) ; or a witness giving evidence. (sec.97-ssec.4) However, the court may permit a person who is not mentioned in subsection (3) to be present during the hearing if the court is satisfied it is in the interests of justice to do so.

• (a) a child to whom the proceedings relates: or
• (b) an adult who is the subject of a cultural recognition order relevant to the proceeding; or
• (c) an appellant; or
• (d) a respondent; or
• (e) if the proceeding relates to a child who is the subject of a cultural recognition order— (i) the child’s birth parent; or (ii) the child’s cultural parent; or (iii) the child’s other carer; or
• (i) the child’s birth parent; or
• (ii) the child’s cultural parent; or
• (iii) the child’s other carer; or
• (f) the commissioner; or
• (g) a lawyer of a party to the proceeding or of a person mentioned in paragraphs (a) to (e) (iii) ; or
• (h) a witness giving evidence.
• (i) the child’s birth parent; or
• (ii) the child’s cultural parent; or
• (iii) the child’s other carer; or

sec.98 Access to court records

A person may not have access to the record of proceedings in the court or the appellate court in relation to a proceeding under this Act about a cultural recognition order unless the court, on application by an applicant for the order, or the commissioner, has given approval to access the record. The court may give access to all or part of the record of proceedings. Without limiting the reasons for which the court may refuse to give a person access to all or part of the record of proceedings, the court may refuse to give access if— the person has not produced to the registrar or another appropriate officer of the court proof of the person’s identity; or the person has not complied with a requirement of the court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings. In this section— record of proceedings includes— a written transcript of the proceedings; and the documents in the court file for the proceedings; and an appeal book in relation to the proceedings. (sec.98-ssec.1) A person may not have access to the record of proceedings in the court or the appellate court in relation to a proceeding under this Act about a cultural recognition order unless the court, on application by an applicant for the order, or the commissioner, has given approval to access the record. (sec.98-ssec.2) The court may give access to all or part of the record of proceedings. (sec.98-ssec.3) Without limiting the reasons for which the court may refuse to give a person access to all or part of the record of proceedings, the court may refuse to give access if— the person has not produced to the registrar or another appropriate officer of the court proof of the person’s identity; or the person has not complied with a requirement of the court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings. (sec.98-ssec.4) In this section— record of proceedings includes— a written transcript of the proceedings; and the documents in the court file for the proceedings; and an appeal book in relation to the proceedings.

• (a) the person has not produced to the registrar or another appropriate officer of the court proof of the person’s identity; or
• (b) the person has not complied with a requirement of the court under any law or rule of practice relating to inspection of and release of information generally from its record of proceedings.
• (a) a written transcript of the proceedings; and
• (b) the documents in the court file for the proceedings; and
• (c) an appeal book in relation to the proceedings.

Offences and legal proceedings

sec.99 False or misleading information

A person must not give information under this Act to the commissioner that the person knows is false or misleading in a material particular. Maximum penalty—100 penalty units.

sec.100 Offences against this Act

A proceeding for an offence against this Act is to be heard and decided summarily. A proceeding for the offence must start within the later of the following periods to end— 1 year after the offence was allegedly committed; 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence was allegedly committed. (sec.100-ssec.1) A proceeding for an offence against this Act is to be heard and decided summarily. (sec.100-ssec.2) A proceeding for the offence must start within the later of the following periods to end— 1 year after the offence was allegedly committed; 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence was allegedly committed.

• (a) 1 year after the offence was allegedly committed;
• (b) 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence was allegedly committed.

Confidentiality and access to information

sec.101 Definitions for part

In this part— confidential information — means the following information— personal information; information in relation to an Ailan Kastom child rearing practice that a person knows is of a secret or sacred nature; and does not include information that is lawfully available to the public. personal information see the Information Privacy Act 2009 , section 12 . sacred means sacred according to Ailan Kastom. secret means secret according to Ailan Kastom.

• (a) means the following information— (i) personal information; (ii) information in relation to an Ailan Kastom child rearing practice that a person knows is of a secret or sacred nature; and
• (i) personal information;
• (ii) information in relation to an Ailan Kastom child rearing practice that a person knows is of a secret or sacred nature; and
• (b) does not include information that is lawfully available to the public.
• (i) personal information;
• (ii) information in relation to an Ailan Kastom child rearing practice that a person knows is of a secret or sacred nature; and

sec.102 Confidentiality of information

An administrator must not, directly or indirectly, disclose confidential information, that has become known to the administrator in the course of performing the administrator’s functions under this Act, to another person unless the disclosure is permitted under subsection (2) or (3) . Maximum penalty—100 penalty units or 2 years imprisonment. An administrator is permitted to disclose confidential information, other than information that the administrator knows is of a secret or sacred nature, to another person— under this Act; or if the disclosure is otherwise required or permitted by law; or if the person to whom the information relates consents to the disclosure; or if the disclosure is in a form that does not identify the person to whom the information relates. The commissioner may disclose information that is contained in a person’s criminal history if the disclosure is made in— a notice of intention; or a statement of reasons given under section 58 (2) (a) . (sec.102-ssec.1) An administrator must not, directly or indirectly, disclose confidential information, that has become known to the administrator in the course of performing the administrator’s functions under this Act, to another person unless the disclosure is permitted under subsection (2) or (3) . Maximum penalty—100 penalty units or 2 years imprisonment. (sec.102-ssec.2) An administrator is permitted to disclose confidential information, other than information that the administrator knows is of a secret or sacred nature, to another person— under this Act; or if the disclosure is otherwise required or permitted by law; or if the person to whom the information relates consents to the disclosure; or if the disclosure is in a form that does not identify the person to whom the information relates. (sec.102-ssec.3) The commissioner may disclose information that is contained in a person’s criminal history if the disclosure is made in— a notice of intention; or a statement of reasons given under section 58 (2) (a) .

• (a) under this Act; or
• (b) if the disclosure is otherwise required or permitted by law; or
• (c) if the person to whom the information relates consents to the disclosure; or
• (d) if the disclosure is in a form that does not identify the person to whom the information relates.
• (a) a notice of intention; or
• (b) a statement of reasons given under section 58 (2) (a) .

sec.103 Access to particular information

An applicant for a cultural recognition order may apply in writing to the commissioner for a copy of restricted information about the application for a cultural recognition order. In deciding whether or not to grant the application for a copy of restricted information the commissioner must have regard to— the need to protect a person’s privacy; and the need to safeguard a person from harm. If the commissioner grants the application, the commissioner may grant access to all or a part of the restricted information. If the commissioner decides not to grant the application, the commissioner must give the applicant written notice of the commissioner’s decision and a statement of reasons for the decision. In this section— restricted information , about an application for a cultural recognition order, means— the application for the order; or information or a document that accompanied the application for the order; or information or a document that was given to the commissioner under section 41 ; or a statement of reasons given under section 58 (2) or (3) . (sec.103-ssec.1) An applicant for a cultural recognition order may apply in writing to the commissioner for a copy of restricted information about the application for a cultural recognition order. (sec.103-ssec.2) In deciding whether or not to grant the application for a copy of restricted information the commissioner must have regard to— the need to protect a person’s privacy; and the need to safeguard a person from harm. (sec.103-ssec.3) If the commissioner grants the application, the commissioner may grant access to all or a part of the restricted information. (sec.103-ssec.4) If the commissioner decides not to grant the application, the commissioner must give the applicant written notice of the commissioner’s decision and a statement of reasons for the decision. (sec.103-ssec.5) In this section— restricted information , about an application for a cultural recognition order, means— the application for the order; or information or a document that accompanied the application for the order; or information or a document that was given to the commissioner under section 41 ; or a statement of reasons given under section 58 (2) or (3) .

• (a) the need to protect a person’s privacy; and
• (b) the need to safeguard a person from harm.
• (a) the application for the order; or
• (b) information or a document that accompanied the application for the order; or
• (c) information or a document that was given to the commissioner under section 41 ; or
• (d) a statement of reasons given under section 58 (2) or (3) .

sec.104 Publishing identifying material

This section applies to material ( identifying material ) that is confidential information or other information that identifies, or is likely to lead to the identification of, a person as— a party, or relative of a party, to an application for a cultural recognition order; or a party, or relative of a party, to a court proceeding relating to an application for a discharge order; or a person whose consent to an application for a cultural recognition order is or was required. A person must not publish identifying material unless written consent to the publication has been given, for each identified person, by— for an identified person who is a child the subject of a cultural recognition order or an application for a cultural recognition order—the birth parents and the cultural parents of the child; or for an identified person who is an adult—that person. Maximum penalty— for an individual—100 penalty units or 2 years imprisonment; or for a corporation—1,000 penalty units. In this section— identified person , in relation to identifying material, means a person identified by the material as a person mentioned in subsection (1) (a) to (c) . publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication. (sec.104-ssec.1) This section applies to material ( identifying material ) that is confidential information or other information that identifies, or is likely to lead to the identification of, a person as— a party, or relative of a party, to an application for a cultural recognition order; or a party, or relative of a party, to a court proceeding relating to an application for a discharge order; or a person whose consent to an application for a cultural recognition order is or was required. (sec.104-ssec.2) A person must not publish identifying material unless written consent to the publication has been given, for each identified person, by— for an identified person who is a child the subject of a cultural recognition order or an application for a cultural recognition order—the birth parents and the cultural parents of the child; or for an identified person who is an adult—that person. Maximum penalty— for an individual—100 penalty units or 2 years imprisonment; or for a corporation—1,000 penalty units. (sec.104-ssec.3) In this section— identified person , in relation to identifying material, means a person identified by the material as a person mentioned in subsection (1) (a) to (c) . publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

• (a) a party, or relative of a party, to an application for a cultural recognition order; or
• (b) a party, or relative of a party, to a court proceeding relating to an application for a discharge order; or
• (c) a person whose consent to an application for a cultural recognition order is or was required.
• (a) for an identified person who is a child the subject of a cultural recognition order or an application for a cultural recognition order—the birth parents and the cultural parents of the child; or
• (b) for an identified person who is an adult—that person.
• (a) for an individual—100 penalty units or 2 years imprisonment; or
• (b) for a corporation—1,000 penalty units.

Civil liability