In the pages of The Spectator Australia's 1 November 2025 edition, Peter O'Brien, in his review of Tony Abbott's Australia: A History – How an Ancient Land Became a Great Democracy, drops a constitutional bombshell amid his broader critique of Indigenous policy. Dismissing Victoria's nascent treaty process as a "major step backwards" that reeks of racial division, O'Brien asserts: "I would have thought it unconstitutional. It should be able to be nullified by Commonwealth legislation under Section 51(xxvi) of the constitution." It's a provocative claim, one that flips the script on the usual progressive paeans to self-determination and reconciliation. As Victoria has adopted what will be Australia's first state-wide treaty with First Peoples, legislation passed in October 2025 establishing the Gellung Warl Assembly as a permanent negotiating body, O'Brien's suggestion invites a devil's advocate: What if the Commonwealth's infamous "races power" could indeed be wielded to strike it down? Playing this role, let's construct a hypothetical legal argument for why s 51(xxvi) might empower federal intervention, overriding state ambitions in the name of national uniformity. It's a high-stakes constitutional chess move, fraught with irony and peril, but one that underscores the tensions baked into Australia's founding document.
The Races Power: A Relic with Teeth
Section 51(xxvi) of the Australian Constitution, often dubbed the "races power," grants the Commonwealth Parliament plenary authority "to make laws... with respect to: the people of any race for whom it is deemed necessary to make special laws." Born in the racist fever dream of 1890s federation, explicitly excluding "the aboriginal race in any State" to leave Indigenous affairs to the colonies, it was turbocharged by the 1967 referendum, which deleted that proviso and unlocked federal oversight of Aboriginal legislation. The High Court has since interpreted it broadly: In Kartinyeri v Commonwealth (1998), a narrow majority upheld its use for laws "special" to a racial group, even if detrimental, so long as the racial focus is clear and the "necessity" is a political call, not a judicial one.
Critics decry it as a constitutional anachronism, a vestige of White Australia that entrenches division by permitting race-based laws at all. Yet, as our devil's advocate, we embrace its unfettered scope: Post-1967, it's a scalpel (or sledgehammer) for federal pre-eminence in racial matters. The power isn't limited to "benign" affirmative action; Kartinyeri confirmed it can cut both ways. And crucially, under s 109 of the Constitution, any valid Commonwealth law inconsistent with a state law prevails, potentially vaporising Victoria's treaty framework if Canberra deems it a threat to national cohesion.
Victoria's Treaty: A State-Level Power Grab Masquerading as Reconciliation
To tee up the argument, recall Victoria's treaty odyssey. Launched in 2016 with the Advancing the Treaty Process with Aboriginal Victorians Act 2018, it birthed the First Peoples' Assembly (now Gellung Warl), an unelected body of 12 Aboriginal representatives elected by a sliver of the state's 66,000 self-identified Indigenous residents. The 2025 Statewide Treaty, Truth-telling and Healing Bill, passed 21-16 in the Legislative Council, cements this as a "permanent feature," empowering the Assembly to negotiate binding agreements on land, reparations, and self-governance, backed by an independent accountability mechanism tied to Closing the Gap. Proponents hail it as historic healing; detractors, like the Institute of Public Affairs, warn of a "third chamber of parliament" that divides Victorians by race, mandates reparations, and invites endless litigation.
Here's the jurisprudential hook: This isn't mere consultation, it's a race-specific carve-out from the state's democratic fabric. Only Aboriginal Victorians (verified by the Assembly itself) get a seat at the table; non-Indigenous citizens are sidelined. Provisions for "truth-telling" in curricula, traditional name restorations, and Aboriginal control of infrastructure scream "special laws" keyed to race. As O'Brien implies, it rolls back the 1967 amendments' assimilationist thrust, reviving state-level racial exceptionalism the referendum aimed to federalise. If the Commonwealth can legislate for "any race" nationwide, why tolerate a patchwork of state experiments that fragment equality?
The Argument Unfolds: A Federal Override via s 51(xxvi)
Imagine a Commonwealth bill, the Uniform Racial Equality Act 2026, tabled by a sceptical federal government (perhaps a Senator Price-led Coalition), echoing their vow to repeal it in 100 days if they get power. Its core: "No state or territory shall enact or maintain laws that confer special rights, powers, or negotiating bodies exclusively on the basis of race, including, but not limited to, treaty-making frameworks under the Advancing the Treaty Process with Aboriginal Victorians Act 2018 or the Statewide Treaty, Truth-telling and Healing Bill 2025." Penalty? Invalidity of offending provisions, with federal oversight of any "treaty" outcomes.
Step 1: Establish the "Special Law" Nexus. Under s 51(xxvi), the law must be "with respect to" a racial group, meaning race is a central criterion, not incidental. Victoria's laws fit like a glove: Gellung Warl's mandate is explicitly for "First Peoples," with "substantive rules" applying differently based on Aboriginality. Echoing Kartinyeri, where the Hindmarsh Island bridge ban targeted Ngarrindjeri women's heritage, this is quintessentially "special" to Aboriginal Victorians. The "necessity"? Parliament could argue it's essential to prevent "balkanisation," state-specific racial enclaves eroding the "one nation" ethos post-1967, as O'Brien laments.
Step 2: Invoke s 109 Inconsistency. Section 109 declares: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail." Victoria's treaty isn't just parallel; it's antithetical. A federal ban on race-based assemblies directly clashes with Gellung Warl's permanence, rendering the state scheme inoperative. Precedent abounds: In Victoria v Commonwealth (1996), the High Court struck state native title laws for encroaching on federal racial powers. Why not here? The treaty's push for reparations and land co-management creates a de facto racial veto over state resources, precisely the "special" domain s 51(xxvi) reserves for Canberra.
Step 3: Sidestep the "Benign Intent" Trap. Post-Kartinyeri, the power isn't confined to "beneficial" laws; it's race-agnostic. Even if Victoria cries "discrimination," the feds could frame the override as protective: Shielding all Australians, including Indigenous ones, from a divisive state experiment that entrenches victimhood over equality. Tie it to international obligations under CERD (banning racial distinctions unless "special measures" for advancement), arguing Victoria's setup exceeds "temporary" affirmative action into permanent separatism.
Step 4: The Political and Practical Edge. No referendum needed; s 51(xxvi) is live ammunition. A simple majority in both federal houses suffices, and with the Voice referendum's 60% national "No" (80% in Victoria), public appetite for racial carve-outs is tepid. Courts defer to Parliament's "deeming" of necessity; challenge it, and the High Court, stacked with textualists, might uphold, citing the power's plenary nature.
The Devil's Rebuttal: Why This Gambit Might Still Burn
As devil's advocate, we've armoured the case, but cracks show. Victoria could counter that s 51(xxvi) targets Commonwealth laws, not state invalidation, overreach into residual powers under s 107. Engineers' Case (1920) expanded federalism, but states retain non-conflicting turf; is a treaty "inconsistent" if it's aspirational? Plus, the power's racist origins invite strict scrutiny, post-1967, it's arguably impliedly benign, per Hodge v Brown echoes. Politically, it's dynamite: Invoking the races power to curb Indigenous rights revives federation's ghosts, alienating moderates and handing Labor a wedge.
Yet, that's the thrill of advocacy: O'Brien's offhand zinger exposes a constitutional tripwire. If wielded, it could nullify Victoria's treaty not through malice, but through the logic of uniformity, forcing a national reckoning on race, rather than state silos. In Abbott's "great democracy," perhaps that's the real treaty: One where equality trumps exception, and the races power, for once, unites rather than divides. In Australia's legal labyrinth, the boldest paths are often the untraveled ones.
In these desperate times, it is worth a try.