Federal Court does not recognise age pension discrimination, despite Australian Government's failure to close life expectancy gap

The Federal Court of Australia has dismissed the legal challenge seeking fair and equal access to the age pension for Aboriginal and Torres Strait Islander people.

Proud Wakka Wakka man Uncle Dennis* brought the case in which the Federal Government faced court for the first time in connection with its failure to close the gap in life expectancy between Aboriginal and Torres Strait Islander people and non-Indigenous people.

Despite recognising the ongoing gap in life expectancy, the Court did not accept that Australia's racial discrimination laws should give Aboriginal and Torres Strait Islander people earlier access to the age pension.

It comes on the same day as The Closing the Gap Annual Data Compilation Report found that Australia is still not on track to meet the target of equal life expectancy by 2031. No progress towards this target was reported since the previous year.

The Albanese government has a responsibility to address age pension inequality out of court, by lowering the pension age for all Aboriginal and Torres Strait Islander people. The current pension age of 67 years does not account for the stark differences in life expectancy and health outcomes for Aboriginal and Torres Strait Islander people. It means that Aboriginal and Torres Strait Islander people do not have the same opportunity to retire and receive support through the age pension as other Australians. Equal access to the pension would also support several Closing the Gap targets.

Uncle Dennis brought the case with the Victorian Aboriginal Legal Service and the Human Rights Law Centre, with support from DLA Piper.

Proud Wakka Wakka man Uncle Dennis said:

“I’m frustrated with this white system, it’s not a system of the land. It doesn’t give us a say. White people are living longer because they haven’t lost what we have lost. As an Aboriginal man, I’ve seen too many of my people dying at a very early age. We are lucky to get to 50 years old. This case was about telling the truth, and asking the Government to work together with us, to give our people the same chance in life as everyone else.

“Things will never get better unless the Government closes the gaps it created. We didn’t have a problem, a problem came here. Our language, our culture and our identity comes from here, it doesn’t come from another country. Truth, justice and accountability are important.”

Nerita Waight, CEO at the Victorian Aboriginal Legal Service said:
“Everyone deserves to live a life with dignity but this is not possible for our communities who have been left with no choice but to live shorter lives in poverty because of decades of racist colonial policies and a continued lack of investment and change in the systems, institutions and policies that affect their lives day in day out.

“Despite today’s result, the Albanese Government can still do the right thing by lowering the pension age for Aboriginal and Torres Strait Islander people in line with their continued lower life expectancy. The Commonwealth Government has spoken a lot recently about Aboriginal communities determining what practical and concrete measures can improve the lives of Aboriginal and Torres Strait Islander people. Uncle Dennis’ fight to lower the pension age is an example of one impactful measure.

“Lowering the pension age for our people will ensure our Elders have the necessary support to lead a dignified life in their later years and can afford essentials such as housing, food and healthcare. It would mean our people have a retirement which lets them properly care for themselves and their families, while Governments at all levels work to close the gap.”

Jill Gallagher AO, CEO at the Victorian Aboriginal Community Controlled Health Organisation said:

“I am disappointed with this verdict – but I’d like to pay tribute to Uncle Dennis for the unwavering strength, courage and leadership he has shown in shining a spotlight on the difficulties many Aboriginal and Torres Strait Islanders face when it comes to accessing the age pension.”

“VACCHO are again calling on the Federal Government to take decisive action and lower the age to accessing the pension from 67 years to at least 50 years for older Aboriginal people.

“Due to the significant gap in life expectancy experienced by Aboriginal people, lowering the pension age is an important step towards addressing the serious disadvantages experienced by Community.

“Many Aboriginal and Torres Strait Islander Elders are dying before they are old enough to access a single cent of the age pension.

“Aboriginal and Torres Strait Islander people continue to be completely failed by correctional systems, education systems, and health systems. In this instance it is our Elders who have been let down by the legal system - and in the process the vital leadership role they play in sustaining the world’s oldest living tradition has been diminished.”

Josephine Langbien, Acting Managing Lawyer at the Human Rights Law Centre said:

“It is deeply disappointing that the colonial legal system has not recognised what Aboriginal and Torres Strait Islander people have long known to be true – that the age pension system isn’t working fairly. The gap in life expectancy means that Aboriginal and Torres Strait Islander people are being denied the same opportunity to be supported in retirement and age with dignity.

“Uncle Dennis is fighting for earlier access to the pension until the gap in life expectancy is closed. The Closing the Gap report released today shows exactly why measures like this are necessary. The Albanese Government should be seizing every opportunity to address the health impacts of generations of systemic discrimination, and implementing changes that will support Closing the Gap targets.

“Regardless of the Court’s decision, the Albanese Government has a responsibility to do the right thing and ensure Aboriginal and Torres Strait Islander people have fair access to the pension.”

*Dennis prefers that his surname not be published.