Aboriginal elder loses legal bid to access pension early

Aboriginal elder Uncle Dennis’ bid to access the age pension three years early, on the grounds that Indigenous Australians have shorter life expectancies, has been rejected by the Federal Court.

In a landmark ruling, five judges of the court said that, while there are “unacceptable differences in health and socioeconomic status” between Australia’s First Nations people and others, it does not entitle them to access the age pension earlier.

Uncle Dennis, who indicated his preference that his surname not be published, lodged a claim for the age pension in September 2021 when he was 64 years old.

The claim was subsequently denied, as the age to access the age pension is 67 years.

VIEW ALL

View all

That same year, he brought the case to court, backed by the Victorian Aboriginal Legal Service and the Human Rights Law Centre with support from DLA Piper. 

They argued that Indigenous Australians should be able to access the pension earlier than 67 years of age as their shorter life expectancy resulted in less time to enjoy it compared to non-Indigenous Australians. 

The team cited Australian Bureau of Statistics (ABS) data for 2015–17, which found an Indigenous man aged 65 had a remaining life expectancy of 15.8 years. 

Comparatively, a non-Indigenous man of the same age had a life expectancy of 19.0 years.

On 12 July 2023, the Federal Court acknowledged the “ongoing effects of colonisation, dispossession, destruction of cultural bonds, poor access to services, and racist policies” in Indigenous Australians’ mortality rates and thus life expectancy. 

However, it ruled the current system did not breach the Racial Discrimination Act.

“The age pension has never been understood to provide support for a term of years or in a particular amount of money. Rather, as embodied in the legislation, the age pension and its predecessor the old-age pension, have always provided protection against falling into poverty in retirement,” the judgement read.

“It is inherent in its design that the period for which a person qualifies for the pension will depend on whether they reach the relevant age and how long they live afterwards. 

“The pension reflects an understanding that old age is a period during which a person is not only likely to be unable to earn a living by working, but is not obliged to try to do so; so that an income sufficient to provide a minimal level of dignity in retirement is provided for by the state.”

The social security system as a whole would not treat members of all races with equal dignity and respect if it provided members of a particular race with more limited access to the age pension than others, the court said. 

The latest Closing the Gap Annual Data Compilation Report, published in July 2023, 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.

Following the judgement, Uncle Dennis said he is “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,” he said in a statement.

“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.” 

Uncle Dennis’ team now has 35 days to file and serve a short written submission on any further orders they contend should be made by the Full Court.