An Indigenous man seeking to access the aged pension three years earlier due to racial disadvantage has lost his federal court case.
Uncle Dennis, a 66-year-old Queensland-born Wakka Wakka man who has requested that his surname be withheld, lodged a claim to receive the pension but it was rejected because he had not reached the pension age, now 67. He argued that if retiring Indigenous men were expected to live for three years fewer than non-Indigenous men, then their pension age should be 64.
A judgment by the full federal court, published on Wednesday, said Uncle Dennis and representative persons – Indigenous men who turned 65 in 2022 – did not have the right to apply for the age pension earlier on the basis of racial disadvantage.
The judgment said life expectancy was an estimation of how a range of factors would influence a particular group, and not a characteristic of a race.
It said, because nobody knows when they will die, framing an appropriate order to take into consideration racial disadvantage was “impossible”.
It also said Uncle Dennis’s case should be rejected because Australia’s social security legislation was not inconsistent with “equality before the law”. Rather, it pointed to a range of factors that resulted in retiring Indigenous men living for on average at least three years less than their non-Indigenous counterparts.
“The fact that Indigenous men in the applicant’s age group are expected on average to live – and thus enjoy access to the age pension – for around three years less than other men is, as the agreed facts make clear, a tragic consequence of two centuries of dispossession, marginalisation and destruction of social structures,” it said.
The court concluded that Uncle Dennis had not “demonstrated any lesser enjoyment of the relevant human right – the right to social security”.
Uncle Dennis had argued that the commonwealth’s failure to account for differences in life expectancy in the pension breached section 10 of the Racial Discrimination Act.
After the decision, he said he was “frustrated”.
“White people are living longer because they haven’t lost what we have lost,” he said in a statement on Wednesday.
“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.”
He said disadvantage would continue unless the federal government closed “the gaps it created”.
The latest federal data, released on Wednesday, showed four of the Closing the Gap targets are on track, but another four are going backwards.
Closing the gap in life expectancy within a generation is one of the seven targets not currently on track, but is improving.
The judgment said the inequality in the case was due to “the fact that Indigenous men as a group spend statistically less time in old age than men of other races, rather than in the way the age pension provisions operate upon those differing lifespans”.
While Aboriginal and Torres Strait Islander people die on average nine years earlier than non-Indigenous Australians, the hearings for the case focused on lowering the eligibility age by no less than three years. This is because the nine-year gap is an averaged figure exacerbated by diseases and disorders that most commonly lead to death in early stages of life for Aboriginal peoples. For those who have lived into their 60s, the relative gap in life expectancy between Indigenous and non-Indigenous retirees is considered closer to three years.
Uncle Dennis brought the case with the Victorian Aboriginal Legal Service (Vals) and the Human Rights Law Centre (HRLC), with support from DLA Piper.
Nerita Waight, the chief executive of Vals, said that despite the judgment the Albanese government could still lower the pension age for Indigenous people in line with their lowered life expectancy.
Josephine Langbien, the acting managing lawyer at the HRLC, backed Waight’s call and said the “colonial legal system” had not recognised that the age pension system was not fair.
