31 May 2022

The Federal Court has ordered that a case against the Federal Government, seeking fair and equal access to the age pension for Aboriginal and Torres Strait Islander people, will be heard by the Full Court of the Federal Court later this year to determine important questions of law.

Proud Wakka Wakka man Uncle Dennis* brought the case that will require the Federal Government to face court for the first time in connection with its failure to close the gap in life expectancy between Aboriginal and Torres Strait Islander people and non-Indigenous people in Australia. Dennis is bringing this case with the Victorian Aboriginal Legal Service and the Human Rights Law Centre, with support from DLA Piper. 

The Full Court will consider whether Aboriginal and Torres Strait Islander people are being denied equal access to the age pension due to lower average life expectancy, and whether the pension age for Aboriginal and Torres Strait Islander people should be lowered.

The Full Court will consider facts agreed between the parties, including that social, economic and health inequalities experienced by Aboriginal and Torres Strait Islander people as a result of the ongoing impacts of colonisation directly contribute to the gap in life expectancy today.

The case is expected to be heard in late 2022. However, it remains open to the new Albanese government to take the initiative to address age pension inequality out of court, by making simple changes to the eligibility age for Aboriginal and Torres Strait Islander people.  

Proud Wakka Wakka man Dennis said:   

“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.    

“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.   

“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.   

“But this isn’t just about money. Things will never get better unless we acknowledge something is wrong. Truth and accountability are important. This case is 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.”    

Nerita Waight, CEO at the Victorian Aboriginal Legal Service said:   

“Unequal access to the age pension is a clear example of the way that systemic racism has impacted and continues to impacts our people. The gap in life expectancy is a direct result of decades of racist colonial policies. The Government must address this form of racism by lowering the age for Aboriginal and/or Torres Strait Islander people to access the age pension.

“Ensuring our Elders have the necessary support to lead a dignified life is a critical opportunity for the new Albanese Government. Equity in access to the age pension for our communities will have an immediate impact and result in concrete action to close the gap, by ensuring people can retire in dignity and afford essentials such as housing, food and healthcare.

“Until we have the same life expectancy as everyone else in Australia, changes to enable equivalent access to the age pension need to be made, to account for this heartbreaking discrepancy. Our clients, and our community, should not be denied a retirement which enables them to properly care for themselves and their families, as Governments work to close the gap.”

Nick Espie, Legal Director at the Human Rights Law Centre said:   

“We should all look forward to a future in which we can age and retire with dignity. But because of the gap in life expectancy, our people are being denied equal access to this opportunity.    

“It is a national shame that our people are still dying too young. I’ve been to far too many funerals for family that we have lost far too soon. While the Closing the Gap agreement provides hope, change takes time and it is clear that equality in life expectancy is still a way off. People who are at the end of their working lives don’t have time to wait another decade – they need proper support now.

“This is an important case and we are pleased that it will be considered by the Full Federal Court. But the Government knows the facts already, and it shouldn’t take a court order for our people to get equal rights. There is now an opportunity for the Albanese government to fix this inequity as a matter of priority.  

“Aboriginal and Torres Strait Islander men and women of Dennis’ age have lived in the shadow of dispossession of country and culture, the Stolen Generations, experienced stolen wages, and have been excluded from full participation in society on our own country. This case is a chance to address the long-term hardship and disadvantage that comes from years of policies and laws that have worked against us instead of for us.   

“Until we have equality in life expectancy, Aboriginal and Torres Strait Islander people should be able to access the pension earlier. This is just one way the Australian government can recognise the health impacts of generations of systemic discrimination and be accountable for the lack of progress towards closing the gap.” 
 *Dennis prefers that his surname not be published.  

Orders made by the Federal Court can be found here.  

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.