27 May 2022

A Federal Court case against the federal government, seeking fair and equal access to the Age Pension for Aboriginal and Torres Strait Islander people, will return to court today for an interim hearing. 

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 standard pension age, which will increase to 67 years of age by 2023, does not account for the stark differences in life expectancy and health outcomes for Aboriginal and Torres Strait Islander people. As a consequence of the ongoing impacts of colonisation and racial discrimination, Aboriginal and Torres Strait Islander men have an average life expectancy 8.6 years lower than non-Indigenous men, and Aboriginal and Torres Strait Islander women’s lives are on average 7.8 years shorter than non-Indigenous women.  

The case argues that Aboriginal and Torres Strait Islander people should be able to access the age pension earlier, to account for the gap in life expectancy, until that gap is closed.

The interim hearing today will determine whether the case will be heard by the full bench of the Federal Court. But 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: 

“We are excited about the case progressing through the Federal Court.”

“The case has received a huge amount of public support and we hope that the community will continue to follow Uncle Dennis’ journey to bring fairness to the age pension.”

“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.”

“Bringing fairness to the age pension would have a big impact for our people and would have just a small impact on the government – we hope they do the right thing.”

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. 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 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.”
The Productivity Commission last year confirmed that the target of equal life expectancy is not on track to be met by 2031. The gap in life expectancy can only be closed if the federal government honours its commitments under the National Agreement on Closing the Gap, including to partner and share decision-making with Aboriginal and Torres Strait Islander people. This case aims to support the vital work of the Coalition of Peaks by holding the federal government accountable for these commitments and encouraging the government to support Aboriginal and Torres Strait Islander people to implement self-determined solutions to close the gap.  

As well as rectifying the existing inequality of access to the pension, lowering the pension age would in itself support a number of closing the gap targets by helping to improve the economic participation, financial security and wellbeing of Aboriginal and Torres Strait Islander people who can no longer work. 
 *Dennis prefers that his surname not be published.

LIVESTREAM: The link to the livestream of this hearing is published on the Court’s Daily Lists, which can be found here: Federal Court Listing for VIC (fedcourt.gov.au)

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).

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