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Federal Court dismisses Uncle Dennis' pension age challenge despite govt's failure to close Indigenous life expectancy "gap"

Dechlan Brennan -

The Federal Court has dismissed the legal challenge that Aboriginal and Torres Strait Islander people should be able to receive the pension before the age of 67, in a landmark verdict delivered today in Melbourne.

Sixty-five-year-old Uncle Dennis, a Queensland-born Wakka Wakka man who has asked for his surname to be withheld, had previously lodged a claim to receive his pension but was rejected as he had not reached the pension age.

His case centred on the argument that the Commonwealth's failure to account for differences in life expectancy for Aboriginal people in receiving the pension constituted a breach of Section 10 of the Racial Discrimination Act.

Despite recognising the ongoing gap in life expectancy, the Court stated that Uncle Dennis did not "enjoy the right to apply for and receive the age pension 'to a more limited extent' than non-Indigenous men born on or between 1 January 1957 and 31 December 1957."

It comes on the same day as The Closing the Gap Annual Data Compilation Report found that Australia is still not on track to meet the target of equal life expectancy for all people by 2031.

The case was brought by the Human Rights Law Centre and was supported by the Victorian Aboriginal Legal Service (VALS) and legal firm DLA Piper.

"I'm 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," Uncle Dennis said.

"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.

"Things will never get better unless the Government closes the gaps it created. We didn't have a problem; a problem came here. Our language, our culture and our identity come from here, it doesn't come from another country. Truth, justice and accountability are important."

VALS chief executive Nerita Waight said despite the result, the government can still lower the pension age and do "the right thing."

"The Commonwealth Government has spoken a lot recently about Aboriginal communities determining what practical and concrete measures can improve the lives of Aboriginal and Torres Strait Islander people," Ms Waight said following Wednesday's verdict.

"Uncle Dennis' fight to lower the pension age is an example of one impactful measure."

Josephine Langbien, Acting Managing Lawyer at the Human Rights Law Centre, said "It is deeply disappointing that the colonial legal system has not recognised what Aboriginal and Torres Strait Islander people have long known to be true – that 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."

She reiterated the comments by Nerita Waight, stating "regardless of the Court's decision, the Albanese Government has a responsibility to do the right thing and ensure Aboriginal and Torres Strait Islander people have fair access to the pension."

Uncle Dennis had previously argued that if Indigenous men were expected to live for three fewer years than non-Indigenous people - as the statistics show - the pension age should therefore be lowered to 64 for First Nations people.

"It's only fair for the pension age to be lowered," Uncle Dennis said in February.

"The pension is an important part of caring for and looking after our people when they can't work anymore."

Uncle Dennis's barrister, Ron Merkel KC, suggested to the court in February that rewarding an earlier pension to First Nations Australians, due to a gap in life expectancy "which is closely connected to race," was logical.

Merkel produced figures that suggested a 65-year-old Indigenous man would live for a further 15.8 years on average, compared to 19 years for a non-Indigenous male.

"There is a long historical disadvantage which is embedded structurally into Aboriginal and Indigenous society in Australia that is the direct cause of this life expectancy gap," he told the Full Court at the time.

The average life expectancy for Aboriginal and Torres Strait Islander men is estimated to be 71.6 years and 75.6 for females, according to the Australian Institute of Health and Welfare.

The facts around lower life expectancy for First Nations people was agreed by both parties in the case.

This included that the social, economic and health inequalities experienced by Aboriginal and Torres Strait Islander people in Australia is a direct result of colonisation, which has contributed to the gap in life expectancy.

Uncle Dennis recently wrote that non-Indigenous Australians live longer due to not losing what "we have lost."

"We are often lucky to hit 50 or 60," he said.

"Although I've seen a lot of my people dying at a very early age - even as young as 30."

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