Government must act after High Court declines to hear age pension discrimination case

The Victorian Aboriginal Legal Service and the Human Rights Law Centre are calling on the Albanese Government to act on age pension discrimination, after the High Court yesterday declined to hear an appeal in the legal challenge seeking 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 Federal Court did not accept that Australia's racial discrimination laws should give Aboriginal and Torres Strait Islander people earlier access to the age pension. Yesterday the High Court refused to hear an appeal from the Federal Court’s decision.  

A major Productivity Commission report released last month found that governments are not adequately delivering on their commitments under the National Agreement on Closing the Gap, and that without fundamental change, the agreement is at risk of failing. Data released in November 2023 shows that the gap in life expectancy between Aboriginal and Torres Strait Islander people and non-Indigenous people has widened rather than narrowed, confirming that the target of equal life expectancy is not on track.  

As the issue of equal access to the age pension will not be resolved through the courts, responsibility now lies with the Federal Government to enact reforms.  

Wakka Wakka man Uncle Dennis, who brought the case, said:

“More than a decade ago, Australian governments promised to “Close the Gap”, but we are not making much progress. They are all talk and no action. If it were the other way around, and white people were dying too young, they would have fixed this already.

This case was asking the Government to work together with us, to give our people the same chance in life as everyone else.  The pension is an important part of caring for and looking after our people when they can’t work anymore.

I took this legal action because I wanted to stand up for my people. I am disappointed that the court won’t hear our case, but we will keep fighting because truth and accountability are important.”

Nerita Waight, CEO of the Victorian Aboriginal Legal Service, said: 

“At VALS, we have been proud to support Uncle Dennis in his fight for all of our Elders to have the opportunity to live a dignified retirement.” 

“Successive Governments have failed to deliver better living standards for our people through Closing the Gap, and the failure to close the life expectancy gap is particularly shameful.” 

“Our people know what they need to improve their lives. Uncle Dennis is asking for this small change to the age pension so our people can have an opportunity for a more dignified retirement. It’s now for the Commonwealth Government to change the Social Security Act to make the pension system fairer for our Elders.” 

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

“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. 

“The High Court has made clear that Australia’s racial discrimination laws can’t fix this inequity. It is now up to the Albanese Government to seize the opportunity to address the health impacts of generations of systemic discrimination, and to implement changes that will support Closing the Gap targets. Regardless of the Court’s decision, the Albanese Government has a responsibility to ensure Aboriginal and Torres Strait Islander people have fair access to the pension. The Productivity Commission's recent findings make clear that governments must begin taking their obligations under the National Agreement on Closing the Gap seriously.” 
​​​​​​​*Uncle Dennis prefers that his full name not be published

Media contact:
Michelle Bennett, Human Rights Law Centre, 0419 100 519, michelle.bennett@hrlc.org.au

​​​​​​​Lorena Walker, Media Officer, Victorian Aboriginal Legal Service, 0491 947 761 LWalker@vals.org.au