A decision from the full Federal Court is expected later this year in the case brought by Wakka Wakka man Uncle Dennis arguing for the pension age to be lowered for Aboriginal people because of the significant gap in life expectancy.
The 64-year-old is suing the Commonwealth in the federal court, arging he should be able to access the aged pension at 64 rather than at the age of 67 in a legal action that shine a light on the life expectancy gap in Australia.
According to the 2020 Closing The Gap report in 2015–2017, life expectancy at birth was 71.6 years for Indigenous males (8.6 years less than non-Indigenous males) and 75.6 years for Indigenous females (7.8 years less than non-Indigenous females) and the target to close the life expectancy gap by 2031 is not on track.
"It's only fair for the pension age to be lowered. The pension is an important part of caring for and looking after our people when they can't work anymore," said Uncle Dennis, who is backed by the Victorian Aboriginal Legal Service and Human Rights Law Centre in the action, with support from DLA Piper.
Alex Walters, principal lawyer, Civil and Human Rights, Victorian Aboriginal Legal Service, said Australia's anti-discrimination laws protect everyone's right to equality before the law.
Mr Walters has been working on the case for two and a half years, basing the case on the requirement that people should have access to equal rights, irrespective of race.
"This means everyone must have access to important rights like the age pension, which is Australia's social safety net for retirement. But the current pension age does not take into account the shorter life expectancy of Aboriginal and Torres Strait Islander people, which means that Aboriginal and Torres Strait Islander people do not have the same opportunity to retire and receive support from the pension as non-Indigenous people," he said.
He noted the gap in life expectancy is a result of colonisation and the generations of systemic discrimination that Aboriginal and Torres Strait Islander people have endured.
"The pension age is increasing to 67 in July this year. It is increasing because overall Australians are living longer. But while the pension age is increasing, the gap in life expectancy isn't closing. More than a decade since the Australian Government first committed to closing the gap in life expectancy, we are still not on track to meet this target within a generation," Mr Walters said.
The solicitor noted that the current pension age ignores the different life expectancy, health, and ageing experiences of Aboriginal and Torres Straight Islander people, who are less likely to live to pension age, and, on average, benefit from it for significantly fewer years.
"This case is about ensuring Aboriginal and Torres Strait Islander people enjoy the right to a pension to the same extent as everyone else, are better supported in later life and have the same right to age with dignity," he said.
The case was heard before the full Federal Court on 20 and 21 February.
Commonwealth Barrister Jenny Firkin KC argued in court that life expectancy was not part of the legislative criteria to assess whether someone was eligible for the age pension.
A decision from the Court is expected later this year, and success in the case would have significant consequences for Indigenous people nationwide.
Mr Walters said earlier access to the pension would provide financial support and security to Elders later in life.
"It would be a concrete, practical measure to ensure everyone can age with dignity, that can be implemented while work continues to close the gap," he said.
For Uncle Dennis, the case is not just about money.
"This is about telling the truth and doing what's right. If we don't tell the truth, we will never be free. Things will never get better unless we acknowledge something is wrong. Truth and accountability are important. We are asking the government to work together with us, to give our people the same chance in life as everyone else," he said.
