Rodney Croome on the history of freedom to marry in Australia

By Rodney Croome -

‘True and good citizens’

On Friday 13 August 2004, in an unusually emotional debate punctuated by tears and rage, the Australian Senate passed a Howard government amendment to the Marriage Act 1961, defining matrimony as the exclusive union between one man and one woman for life.
That had been the definition ascribed to marriage by the courts for over a century, one that lawmakers felt too obvious to declare in statute. But in 2003, Canadian provinces, starting with Ontario, began solemnising same-sex marriages. Because there is no residency requirement for marriage in Canada, a stream of Australian same-sex couples flowed across the Pacific to wed, only to have their marital rights stripped the moment they walked back through Australian Customs.
At the beginning of 2004, two such couples sought a ruling from the Federal Court on whether Australia’s relatively liberal laws on foreign marriages extended to the recognition of their Canadian unions.
The court was never allowed to decide. Liberal senator Guy Barnett petitioned the prime minister to ‘protect marriage’ from being ‘demeaned and degraded’. The petition was successful, not least because 2004 was an election year in both Australia and the United States, and the politicisation of ‘gay marriage’ welded wealthy and highly disciplined evangelical churches in marginal electorates to the conservative cause.
The government’s marriage amendment – declaring matrimony to be exclusively hetero-sexual, and limiting the powers of the courts to recognise overseas same-sex unions – was raced through parliament, prioritised over government anti-terror legislation. For good measure, the prime minister addressed a rowdy meeting in the Great Hall of Parliament House in defence of ‘traditional marriage’, during which homosexuals were condemned as ‘moral terrorists’. In her address to that anti-gay audience, shadow attorney-general Nicola Roxon declared Labor’s support for entrenching discrimination against gay relationships. She was given a standing ovation.¹
The events of 2004 defined the debate on same-sex marriage. The major parties continue to heed anti-gay lobbyists and the mega-churches they purport to represent. Supporters of reform continue to make the case that equality and anti-discrimination are the primary principles at stake. The far more intense American debate on same-sex marriage inevitably influences and overshadows its Australian equivalent.
But there is another way of understanding the ban on same-sex marriage that puts the issue in a longer-term and thoroughly Australian context.
The Marriage Amendment Act 2004 didn’t only entrench discrimination. It was also an assault on the freedom of Australian citizens to marry the person of their choice. When we see the ban on same-sex marriage as a negation of the freedom to marry, it takes its place in a long list of similar restrictions imposed on Australians for over two hundred years. These restrictions clearly breached the human dignity of those concerned. But they had something more in common. They were imposed as part of great, flawed visions to reshape Australian society. Defiance of restrictions on the freedom to marry, and the eventual removal of these restrictions, has been pivotal in overturning the repressive ideologies imposed on ordinary Australians. Indeed, freedom to marry has helped define and propel some of the greatest emancipatory movements in our history, transforming not just the lives of those denied this freedom but the society eventually convinced to grant it.
‘She only married to be free’
For fifty years after 1788, the government decided who, how and when most Australians married. Convicts applied to the colonial government for permission to wed. In the eyes of the law, they had forfeited control over their own lives and were no longer full citizens. But, more than this, control over marriage was used by convict authorities for particular policy ends.
Australia’s first viceroy, Arthur Phillip, was one of the last of the eighteenth-century administrators who believed public policy could buttress the agrarian class system that industrialism was overwhelming. His vision of transforming British felons into a native Australian yeomanry hinged on rewarding male convicts who married by giving them free time and small parcels of land.²
Later governors like Darling and Arthur embraced those changes that Phillip hoped to halt. They sought to inculcate their charges with values of the new industrial middle class: hard work, self-control and a strictly gendered division of labour. The definition of a good husband shifted from ‘physically capable’ to ‘skilled and sober’, that of a wife from ‘chaste and virtuous’ to ‘useful and industrious’.³ Convicts who conformed were encouraged to marry. Those who resisted were forbidden to do so.⁴
To achieve their goals, Australia’s colonial authorities more closely regulated working-class marriages than ever before. In Australia – far more so than in Britain – the traditional roles played by extended family, established local communities and clergy in negotiating marriage were now assumed by the state.⁵
For the colonial authorities, romantic love, religious duty, personal financial security or the legitimisation of sex and children were not valid reasons for granting permission to marry. Pregnancy was rarely accepted as the basis for the marriage application of a female convict, although some women seeking permission proffered it as one.⁶ The imposition of political and ideological goals took precedence.
One constant of convict marriage policy was that the authorities considered matrimony the best way to control female convicts. But not all convict women saw it this way. Some used marriage to escape particular employers, others to find some level of financial independence.⁷ Many used wedlock to escape the convict system altogether, sometimes with the collusion of their male partner.⁸ Intent on exercising the freedom from convict discipline that marriage bestowed, Mary Furner explained, ‘I am kept in bondage … (until I marry); I shall then be enabled to become in a manner of speaking a free subject.’⁹ Penelope Burke was more succinct, stating to the authorities that she ‘only married to be free’.¹⁰ According to witnesses to the Bigge Commission into the efficacy of transportation, Burke was not alone. ‘Female convicts often married only to alter their civil status,’ Bigge reported, giving this his conditional approval as the lesser of two evils.¹¹ Indeed, the more overbearingly marriage was regulated, the more opportunities it seemed to offer for the rarest commodity in convict Australia: personal autonomy.
For campaigners against convict transportation, freedom to marry was also important in their struggle against governmental intervention and for personal liberty. Modelling themselves on the American anti-slavery movement, they maintained that a society’s prosperity and stability depended on the right to make contracts – political, commercial and matrimonial – free of compulsion. At the rhetorical edge of this emancipatory theory was the fear and loathing anti-transportationists whipped up against homosexuality in Australia’s gaols. Free of official oversight and regulation, it was argued, men and women would follow their natural inclinations into happy, fruitful wedlock and away from sexual vice.
The principle of freedom to marry thus helped propel the anti-transportationists to victory, albeit on the back of homophobia. Colonial governments stepped back from their strict day-to-day supervision of marriage, as they did from the grand penological experiments to which control of marriage had been crucial.
Within marriage itself, tyranny took much longer to overturn. While the convict system had provided opportunities for some women to improve their legal status by marrying, married women were still not legally equal to their husbands. In the twentieth century, married women had to fight, again mostly with the authorities, to remove restrictions over abortion, contraception and divorce. For women seeking to improve their legal and social status, reform of laws about marriage and married life meant pushing back state intrusion, assuming greater control over their lives, asserting their equal citizenship and obtaining some degree of self-determination, freedom and choice.
But there was also another group of Australians for whom the right to marry freely was central to their subjugation, to their freedom and to their demands for respect.

 ‘We ask for our freedom so that we can rule our lives’
On 13 August 1959, exactly forty-five years before federal parliament amended the Marriage Act to explicitly prohibit same-sex marriages, debate on Australia’s first national marriage law was interrupted by a question concerning a legal battle unfolding in the Northern Territory. A young black woman, Gladys Namagu, had been denied permission by the Director of Welfare in Darwin to marry her fiancé, a white drover named Mick Daly.¹²
Like his counterparts in Queensland and Western Australia, the Northern Territory Protector controlled every aspect of the lives of Aboriginal people, including who they married. Government control over Indigenous marriage dated from the 1860s, when the Victorian government passed laws allowing the expulsion of Aboriginals from reserves if they married across racial lines, ostensibly to reduce the numbers claiming government assistance.¹³ Fears of racial contamination more clearly motivated the passage of the first law assuming direct control over marriages involving Indigenous people in Queensland in 1897.¹⁴ As Federation heightened white Australia’s fears for its racial integrity, Western Australia and the Northern Territory followed Queensland’s example. South Australia passed an Aboriginal marriage law for the territory it then governed, but not for itself. Like New South Wales and Victoria, it felt its Aboriginal problem would soon be solved by extinction.¹⁵
Beginning as controls on the marriage of black women to white or Asian men, the laws grew steadily in scope until, at their peak in the 1930s, they regulated the marriages of all Aboriginal people of all ancestries to all other people and to each other.
As legislation grew more intrusive, so it also began to be employed – like the marriage controls endured by convicts – to implement official ideologies. These ideologies often diverged dramatically between the Australian states, even though the laws remained remarkably consistent. In Queensland, the Chief Protector generally used his power over Aboriginal marriages to bar the unions of whites with Aboriginals of both full and mixed descent. This was predicated on the belief that Europeans and Aboriginals were at either end of the racial ladder, and their unions inevitably disruptive of the social order and damaging for the resulting children. Concern was not infrequently expressed that mixed race children combined the worst features of their parents’ races, were physically and mentally weaker, and more prone to alcoholism, sexual aberration and communism.¹⁶
On the other side of the continent, Western Australia’s Chief Protector, AO Neville, held the more ‘modern’ view that Aboriginals were second only to Europeans in the racial hierarchy. Because whites and blacks were racial kin, the latter could be quickly absorbed by interbreeding with the former, without the risk of throwbacks or degeneration. As the ultimate guarantee of a white Australia, interracial unions were to be encouraged, and same-race marriages between Aboriginals, especially those of mixed descent, forbidden.¹⁷
Reflecting its geography, the Northern Territory fell ideologically between Queensland and Western Australia. First, it adopted Queens-land’s policy of barring interracial marriages. Later, it adopted Western Australia’s policy of using marriage controls for the opposite ends of barring same-race unions. By the time of Mick and Gladys’ relationship, federal governance meant unmarried young women like Gladys were considered state wards, with their applications to marry judged on a case-by-case basis.
As racial ideology drove ever greater intrusion into the marriage choices of Aboriginal people, so Aboriginal people found ways to dodge or dissent from the intrusion. The meticulous record keeping of the Western Australian Protector’s office reveals a steady increase in the number of appeals against marriage denials from Aboriginal men and women. It should not be a surprise that for Aboriginals enduring social dislocation and the breakdown of kinship networks, marriage – and the security it promised – was just as important as it had been to convicts in the same situation a century before.
Mission clergy sometimes championed the freedom of Aboriginal people to marry on the basis that marriage was a contract between two willing partners and God, and not properly a tool of secular social engineering, while some Aboriginals simply took matters into their own hands. Like many of her peers in the same frustrating predicament – and like many convict women before her – one young Western Australian woman’s simple solution was pregnancy.
‘This is the second time I’ve asked for permission to marry my boy’, she declared to the matron of Moore River Native Settlement in 1934. ‘I know what to do. I will go to the settlement and I’ll have a cause.’¹⁸
Unfortunately, that wasn’t always enough. Having married across the race divide, Jack and Lallie Akbar fled from Western Australia to South Australia to escape prosecution.¹⁹ Having married ‘correctly’, Jessie Smith drew Neville’s attention and ire for continuing to play an active part in Aboriginal community life, and thereby refusing to assimilate.²⁰
Western Australia was also the site of some of the first organised protests against marriage control. A 1935 petition from ‘half-caste’ women in Broome echoed the aspirations of convict women a century earlier by couching freedom to marry in terms of citizenship:

Sometimes we have the chance to marry a man of our own choice. Who may be in better circumstances than ourselves … therefore we ask for our freedom so that when the chance comes along we can rule our lives and make ourselves true and good citizens.²¹

In the eastern states, the Aboriginal rights movement that began in the 1920s was slow to demand the freedom to marry. It had grown out of the labour movement, was dominated by men, and focused its energies on wages and conditions. No mention is made of freedom to marry in the manifestos of the Australian Aboriginal Progressive Association or the Australian Aborigines League until the late 1930s when the issue suddenly jumps to near the top of their list of demands.
In the ‘Ten Point Plan for Aboriginal People’ resolved by the national conference mourning the 150th anniversary of white invasion, freedom to marry is rated above every other violation of Aboriginal civil rights, bar unequal pay and access to pensions:

We recommend that Aborigines and Halfcastes should come under the same marriage laws as white people, and should be free to marry partners of their choice, irrespective of colour.²²

The expanded scope and stricter implementation of laws governing Aboriginal marriage in Western Australia, Queensland and the Northern Territory in the mid 1930s, and the advent of local voices raised against these developments, may partly explain why marriage was now on the national Aboriginal agenda. But Aboriginal activists also sought to make analogies between Australia’s race laws and those of its emerging enemy, Nazi Germany. The pamphlets that, for the first time, highlighted Australia’s racially based marriage laws were peppered with references to ‘Hitlerism’. Advocates clearly hoped that white Australians repulsed by the Nuremberg Laws would see how similar laws in their own country were a cornerstone for a rotten, racist edifice.²³
In postwar Australia the campaign for Indigenous rights continued to be driven by those ordinary Aboriginals prepared to protest the denial of their freedom to marry and by those activists who kept the issue before decision-makers.
But they were now assisted by the entrenchment of human rights in international treaties, increased public discussion and understanding of what these rights meant, and the development of a canon of serious thought around those rights. In 1959, German-American philosopher and political theorist Hannah Arendt explained the link between human rights and freedom to marry:

The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin colour or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence, and to this category the right to home and marriage unquestionably belongs.²⁴

All these elements coalesced in the case of Gladys and Mick. In 1959, their plight made headlines nationally, and they were dubbed an outback Romeo and Juliet. The outpouring of public sympathy was overwhelming, and meetings in their defence were convened around the country. A case was even mounted to the secretary–general of the United Nations. When the matter was raised in federal parliament, MPs demanded an assurance from the government that discrimination would never be written into the landmark national marriage legislation they were poised to pass.
Thanks to this public focus, within a few short months the prohibition on Gladys and Mick’s marriage had been lifted, and the power to impose such prohibitions removed. But more than this, the case of Gladys and Mick – like the notorious mistreatment of Aboriginal artist, Albert Namatjira – pricked the national conscience and led directly to the dismantling over the next few years of the whole elaborate and awful system of Aboriginal protection laws.
It was no coincidence that when activists listed the aspirations of Indigenous people during the 1967 referendum campaign on full Aboriginal citizenship, the right to marry the person of one’s choice was still at the top of the list – above the right to custody of children and access to traditional lands, and second only to the right to vote.
It is a source of great pride for many contemporary Australians that the 1967 referendum was endorsed by 97 per cent of Australian voters, most of whom, of course, were white. But many white Australians do not remember that this moment was made possible, in part, by the importance so many Australians placed on the freedom to marry.
Aboriginal people have not forgotten about what freedom to marry meant. During the national human rights consultation in 2009, a member of the committee, Tammy Williams, responded to the issue of same-sex marriage by recalling how recently Aboriginal people had been denied this freedom:

I couldn’t help but think about my family, when you talked about the right to choose your partner … In my family, it’s only one generation ago that we were prevented from choosing our chosen partner to marry – not because of sexual orientation, but simply because of our race, our Aboriginality.²⁵

Voices like this remind Australia, not only of an important part of its history, but what that history meant to those most directly affected – and what it continues to mean today.

‘Turning back the clock 140 years’
As convict and Aboriginal history shows, the history of marriage in Australia is the history of flawed plans to manipulate society by controlling who ordinary people wed, and of the defiance of such plans by people seeking to make the choice themselves.
The most recent example is the violation of the right of same-sex attracted people to freely marry the partner of their choice. Like its predecessors, the 2004 same-sex marriage ban is the legal principle upon which an elaborate edifice of discriminatory law and policy-making is founded, an edifice which now sprawls well beyond gays, marriage, federal law and even Australia. Like its predecessors, today’s denial of the freedom to marry is part of establishing a larger and oppressive social vision. Challenging and dismantling this edifice and these ideologies also has implications far beyond the legal rights of the people most directly affected.
There are many examples of how the same-sex marriage ban has been used to justify discrimination more broadly. The Howard government repeatedly cited the ban as its rationale for not recognising same-sex couples in other areas of law, unless as sexless ‘interdependents’. Even when same-sex couples were granted recognition as de facto partners by the Rudd government, immense effort was expended to portray the reform as providing ‘practical day-to-day financial and workplace entitlements’ without any of the affirmation that comes with marriage. Meanwhile, successive federal governments quashed attempts by the ACT to enact civil union laws with legally binding ceremonies, on the basis that such ceremonies conflict with the 2004 ban.
Most mean-spirited of all, since 2004 the federal government has used the same-sex marriage ban as a rationale for stopping Australians entering same-sex marriages overseas. When an Australian marries overseas, the foreign government solemnising the union may ask the Australian government to certify that the person concerned is not already married in Australia. Successive Australian governments have refused to issue the necessary documents to same-sex partners, effectively blocking same-sex nuptials even where they are legal.
Beyond this preoccupation with delimiting gay unions lies an equally strong government concern about traditionalising straight ones. Another amendment to the Marriage Act, largely unnoticed because it was made at the same time as the same-sex marriage ban, defined marriage as the voluntary union for life of one man and one woman to the exclusion of all others. Like the same-sex marriage ban, this amendment was justified by the Howard government as entrenching in legislation a long-held cultural and common-law assumption. But as former chief justice of the Family Court Alastair Nicholson has noted, the married-for-life definition of matrimony was outdated even when it was first formulated by Lord Penzance in 1866. In a nation that allows no-fault divorce it is simply absurd. In Nicholson’s words: ‘What the government, with the help of the opposition, has succeeded in doing is to turn back the clock nearly 140 years.’²⁶
Just as the legislative principle of not allowing same-sex marriages seeped from statute to policy, so did the principle of ‘turning back the clock’ on heterosexual marriages. In the wake of the 2004 amendments, marriage celebrants were bombarded with circulars from the office that governs their conduct. Amongst stern instructions not to conduct unofficial gay commitment ceremonies, the government insisted that a marrying heterosexual can no longer be referred to by a marriage celebrant as a ‘partner’ or a ‘person’, even if that is their wish. Only the words ‘husband’ and ‘wife’ are admissible in a legally valid ceremony – and only in that order.
Under the Rudd and Gillard governments nothing has changed, despite lobbying from celebrants and community groups. As with the discriminatory policies already cited, there is nothing in the Marriage Act that mandates or requires these new policies and regulations. But the 2004 amendments are repeatedly cited as justification.

‘Two nuts don’t make it, nor two bolts’
It is in these small but telling details of law and policy that we find clues to the broader vision that lies behind the ban on same-sex marriages.
An obvious part is entrenching the inferiority of same-sex attracted people. Denying us freedom to marry sends the message that we are not capable of the love and commitment traditionally associated with marriage, and that discrimination on the grounds of sexual orientation is acceptable. Denying same-sex attracted people freedom to marry also marginalises us. Marriage remains a central and highly honoured institution for many Australians. Pointed exclusion from such an institution of connection and inclusion sends out the message that gays and lesbians cannot fully belong in families and in society.
But worse than the homophobia fostered by the same-sex marriage ban is the sexual dualism it entrenches. By sexual dualism I mean the notion that men and women are intrinsically different and complementary by virtue of their biological sex. The conservative columnist Piers Akerman gives us a helpful metaphor:

At the simplest, a marriage is reflected in the relationship between a nut and bolt. A single nut is not much use. Neither is a bolt, but the two used in tandem, as they are designed to be used, form an effective fastener. Two nuts don’t make it, nor two bolts. Try to put them together and they don’t marry.²⁷

This is obviously a sexist argument. It assumes that biological sex is a more important feature of an individual than his or her character, abilities or morality. Like almost all generalisations about the difference between men and women, it opens the door to the superiority and dominance of men over women, or at least the precedence of a ‘husband’ over his ‘wife’.
The Marriage Act is now the most prominent and influential Australian national law which discriminates on the grounds of sex, as well as sexual orientation. It has become a vehicle for reintroducing a kind of neo-patriarchy.
The third element in the broader social vision underlying the same-sex marriage ban is the reimposition of traditional biblical doctrine through civil law.
When the ban on same-sex marriage was first enacted, it welded evangelical and other socially conservative Christian voters to the Howard government, especially in those key marginal electorates where mega-churches claim significant cultural and economic influence. The Rudd and Gillard governments have maintained Howard’s law, and the policy that accumulated around it, to help shake some of these voters from the Liberal Party’s electoral tree.
But when we look more closely at the detail, we see the ban is not just about appealing to religious prejudices. It is also about entrenching them in law.
Almost all the important aspects of the same-sex marriage ban have a Biblical base. For many socially conservative Christians, marriage remains primarily a holy rite, and same-sex relationships profoundly sinful. Life-long commitment is a sacred command from Jesus, and the duality of the sexes is a universal, ‘natural’ principle as old as the Garden of Eden.
The Bible even makes sense of the bizarre and incorrect legal distinction, elaborated by successive federal governments, between laws that create new legal relationships (like marriage and marriage-like civil unions), which are reserved for heterosexuals, and those that simply recognise existing legal relationships (like de facto marriages and relationship registers), which are open to homosexuals. The principle of legally recognising same-sex relationships only if they legally pre-exist reflects the Biblical view that we must show compassion for the fallen while not encouraging or permitting the fall. It is the latest incarnation of the old maxim: love the sinner, hate the sin.
The denial of freedom to marry two same-sex partners has been the crack through which conservative religious precepts have crept back into Australian law after they were rightly removed in the second half of the twentieth century in the name of equity. At first glance, God may not appear to be directing the attempt to reverse these measures. But shards of religious doctrines can still to be found strewn across the statutes, and keeping faith with God is still the raison d’être of those who do His bidding. The same-sex marriage ban is for law what intelligent design is for biology – a way for a traditional, interventionist God to get His foot in secular society’s door.

Marriage for its own sake
Allowing same-sex couples to marry will be one of the most effective challenges to the bigoted beliefs and theocratic fantasies lent legitimacy by the current ban. It will directly dismantle the discriminatory laws and regulations built on the foundation of that ban. But it has the potential to do much more.
Just as early Aboriginal rights advocates focused their attention on wages and conditions, and overlooked freedom to marry, so some contemporary Australian progressives consider same-sex marriage to be a low priority next to other gay human rights issues. But when same-sex marriage is seen in the broader context of the freedom to marry, its deeper implications are revealed.
Not least is the challenge this freedom issues to one of the most dehumanising stereo-types burdening same-sex attracted people. Those who would deny freedom to marry to any group of people traditionally justify themselves by infantilising that group. Convicts were thought to be so lacking in self-control, women so deficient in reason, and Aboriginals so free of both that they were incapable of making any important decisions, let alone choosing a life-long partner. Freedom to marry sent a powerful message that those groups were capable of morally responsible decisions, and thus were fully adult, fully citizens and fully human.
The justification for denying freedom to marry to same-sex partners reflects the same infantilisation. Opponents of same-sex marriage portray gays and lesbians as perpetual adolescents – irresponsible, self-centred, impetuous, hormone-driven, out to prove a point, and generally incapable of making important life decisions and sticking to them. Freedom to marry will do more than any other single measure to challenge this pervasive stereotype and recognise our equal humanity.
Just as freedom to marry frees gays and lesbians to be fully human, so it also frees marriage to be ‘fully marriage’. As we have seen, the authorities who have sought to control marriage have done so without regard to the values now most commonly associated with the institution. Rarely, if ever, has the love that a couple share, their concern for the welfare of their children or their desire for the legal, economic, social or religious legitimacy that marriage promises been sufficient reason for allowing them to wed. Instead, marriage for those reasons – we might say, marriage ‘for its own sake’ – is seen as a threat to the kind of society advocated by those controlling marriage choices. Similarly, the actions of today’s officials suggests they believe a society that recognises the aspirations of same-sex attracted people for ordinary married family life is threatened at the most fundamental level by that recognition.
But in reality, one of the greatest injuries inflicted by those authorities who turn marriage into a vehicle of ideology is upon marriage itself. When government dictates who can or can’t marry for reasons that have nothing to do with romantic love, raising children, finding personal security, answering religious conscience or anything else traditionally associated with marriage, the credibility and appeal of the institution is impaired.
For those who value marriage, the obvious question is: can this damage be undone? In Australia, freedom to marry has been violated in the name of a broader social vision so often, and with so little regard to the values of marriage, it is tempting to think the nation cannot escape the pattern. But a society is more than the state that governs it. Australians have the choice to break the bad habits of successive governments.
Right now, the most important step is to grant same-sex partners their freedom to marry. Allowing gay Australians to rule their own lives may not redeem marriage and the nation from all the attempts to reconfigure the latter by manipulating the former. But it may just stop it happening again.

1. Polly Bush, ‘Not happy, Nicola’, Webdiary blog, 10 August 2004, , accessed 15 April 2011.
2. Robert Hughes, The Fatal Shore, Pan, Sydney, 1988, p. 246.
3. Alan Atkinson, ‘Convicts and courtship’ in Patricia Grimshaw, Chris McConville and Ellen McEwen (eds), Families in Colonial Australia, Allen & Unwin, Sydney, 1985, p. 25.
4. Atkinson, pp. 20–5. Also see Penelope Russell (ed.), For Richer or Poorer: Early Colonial Marriages, Melbourne University Press, Melbourne, 1994, pp. 6–7.
5. David Kent and Norma Townsend, ‘Some aspects of colonial marriage: A case study of the Swing protesters’, Labour History, no. 74, 1998, pp. 40–3.
6. Atkinson, p. 24.
7. See Babette Smith, A Cargo of Women, Rosenberg, Sydney, 2002, pp. 61 ff.; Kay Daniels, Convict Women, Allen & Unwin, Sydney, 1998, pp. 214 ff.; and Kent and Townsend.
8. Sandra Wilson, ‘Language and ritual in marriage’, The Push from the Bush: A Bulletin of Social History, no. 2, 1978, pp. 98, 103. See also Atkinson, pp. 29–31.
9. Atkinson, p. 22.
10. Atkinson, p. 23.
11. Marian Aveling, ‘She only married to be free or Cleopatra vindicated’, The Push from the Bush: A Bulletin of Social History, no. 2, 1978, p. 120.
12. For more on the case of Gladys Namagu and Mick Daly, see C. A. Hughes, ‘The marriage of Mick and Gladys: A discretion without an appeal’, in B. B. Schaffer and D. C. Corbett (eds), Decisions: Case Studies in Australian Administration, Cheshire, Melbourne, 1966, and Heather Brook, ‘The troubled courtship of Gladys and Mick’, Australian Journal of Political Science, vol. 32, no. 3, 1997.
13. Katherine Ellinghaus, ‘Regulating Koori marriages: The 1886 Victorian Aborigines Protection Act’, Journal of Australian Studies, vol. 67, 2001, p. 23. Also, Richard Broome, Aboriginal Victorians: A History since 1800, Allen & Unwin, Sydney, 2005, p. 114.
14. Henry Reynolds, Nowhere People: How International Race Thinking Shaped Australia’s Identity, Viking, Melbourne, 2005, p. 133.
15. John Chesterman and Brian Galligan, Citizens without rights: Aborigines and Australian Citizenship, Cambridge University Press, Cambridge, 1997, p. 142. Also, Katherine Ellinghaus, ‘Absorbing the “Aboriginal problem”: Controlling interracial marriage in Australia in the late nineteenth and early twentieth centuries’, Journal of Aboriginal History, vol. 27, 2003, p. 186.
16. Reynolds, pp. 145 ff.
17. Ellinghaus, pp. 190 ff. Also, Reynolds, p. 170.
18. Anna Haebich, For Their Own Good: Aborigines and Government in the South West of Western Australia 1900–1940, UWA Press, Perth, 1988, p. 313.
19. Recounted in Pamela Rajkowski, Linden Girl: A Story of Outlawed Lives, UWA Press, Perth, 1995.
20. Recounted in Stephen Kinnane, Shadow Lines, Fremantle Press, Perth, 2003.
21. Bain Attwood and Andrew Markus, The Struggle for Aboriginal Rights: A Documentary History, Allen & Unwin, Sydney, 1999, p. 130.
22. ‘Our ten points: Deputation to the prime minister’, Australian Abo Call, no. 1, 1938, in Attwood and Markus, pp. 89–94.
23. For an example of the parallel emergence of references to Hitler and to the freedom to marry in the advocacy of Aboriginal activists, see the letters and pamphlets of William Cooper in Bain Attwood and Andrew Markus, Thinking Black: William Cooper and the Australian Aborigines’ League, Aboriginal Studies Press, Canberra, 2005.
24. Hannah Arendt, ‘Reflections on Little Rock’, Dissent, Winter 1959, pp. 47–58.
25. Australian Human Rights Consultation, videos of public hearings day one, session four, ‘The Hot Button Issues’, 1 July 2009, Great Hall, Parliament House, Canberra, , accessed 15 April 2011.
26. Alastair Nicholson, ‘The “reform” that shames Australia’, Age, 20 September 2004. See also Ruth McNair, Outcomes for Children Born of ART in a Diverse Range of Families: Occasional Paper, Victorian Law Reform Commission, Melbourne, 2004; Paul Hastings, Johanna Vyncke, Caroline Sullivan, Kelly McShane, Michael Benibgui and William Utendale, Children’s Development of Social Competence Across Family Types, Department of Justice, Ottawa, 2006; Charlotte Patterson, Lesbian and Gay Parenting, American Psychological Association, Washington, 2005.
27. Piers Akerman, ‘When convenience and distraction unite’, Daily Telegraph, 3 August 2009.

Rodney Croome is an Honorary Lecturer in Sociology at the University of Tasmania, a former editor of Island and the Campaign Director of Australian Marriage Equality.