The full federal court will consider whether Aboriginal and Torres Strait Islander peoples should be able to access the aged pension early, after a legal challenge arguing that the gap in life expectancy means holding them to the retirement age is discriminatory progressed to the next stage.
On Tuesday, Justice Debra Mortimer ordered that the full federal court consider the legal case brought against the commonwealth by a 64-year-old Indigenous man seeking early access to the age pension. The pension is set at 66 years and six months and set to increase to 67 in 2023.
Dennis*, a Wakka Wakka man who was raised on an Aboriginal settlement in Queensland and later moved to Melbourne where he has worked at Indigenous radio station 3KND, argues it is fair for him to access the pension early because his lower life expectancy means he is likely to be able to receive the payment for a shorter period of time than others.
Dennis – who has asked for his surname not to be published – is mounting a case to make an early claim to the pension, arguing the commonwealth’s failure to account for differences in life expectancy in the age pension breaches section 10 of the Racial Discrimination Act.
This states that if a group of people enjoy a right to a more limited extent because of a commonwealth law, that law should be changed to allow them to have equal enjoyment.
Dennis’ challenge is seen as a test case which, if successful, could open the door for Indigenous people more broadly to access the payment earlier.
He also hopes the legal challenge will draw attention to the fact the target of closing the gap in life expectancy by 2030, set by the federal government in 2008, is not on track to be met.
The average life expectancy for Aboriginal and Torres Strait Islander men is estimated to be 71.6 years and 75.6 years for females, according to the Australian Institute of Health and Welfare. That’s compared with life expectancy for non-Indigenous Australians of 80.2 years for males and 83.4 years for females.
Dennis said it was “only fair for the pension age to be lowered” because the payment is “an important part of caring for and looking after our people when they can’t work any more”.
“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.
“White people are living longer because they haven’t lost what we have lost. So many things that Aboriginal people are suffering from today are because of how we have been treated since colonisation,” Dennis said.
While Aboriginal and Torres Strait Islander people die on average nine years earlier than non-Indigenous Australians, hearings for the case so far have discussed 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.
However, determining the age at which Indigenous people can access the pension is expected to be examined in more detail when the matter is heard by the full federal court.
During an interim hearing on Monday, lawyers representing both Dennis and the commonwealth discussed the difficulty in determining by how much the age would have to be lowered, noting the discrepancy in Indigenous life expectancy across different states and territories, as well the more favourable expectancies for those living in major cities compared with people living in remote or rural towns.
Nick Espie, legal director at the Human Rights Law Centre – which brought the action along with the Victorian Aboriginal Legal Service and firm DLA Piper – said while he was pleased the case will be considered by the full federal court, governments are well aware of the gap in life expectancy.
He called on the new Albanese government to move ahead of the legal action and change eligibility rules.
“It shouldn’t take a court order for our people to get equal rights,” he said. “Until we have equality in life expectancy, Aboriginal and Torres Strait Islander people should be able to access the pension earlier,” Espie said.
Nerita Waight, chief executive of the Victorian Aboriginal Legal Service, said “our people have shorter lives because the government has failed to provide the support services needed to close the gap”.
“This means our people are much more likely to not reach the pension age and if they do reach it, enjoy it for less years than the rest of the population,” Weight said.
The case is expected to be heard later this year.
Additional reporting by Calla Wahlquist
