‘My people are dying at early age’: Test case could land Indigenous Australians early age pension

A legal test case could result in Indigenous Australians accessing age pension payments three years early, as a Wakka Wakka elder argues he should qualify sooner because his life expectancy is lower.

Dennis James Fisher’s legal team, led by Ron Merkel, KC, argue Indigenous men such as their client, who was born in 1957, do not have the same opportunity to retire and receive the same age-pension support as other Australians.

Dennis James Fisher has taken the federal government to court to argue Indigenous people should have access to the age pension earlier.Credit:AP

Australian Bureau of Statistics figures show that in 2015–17, the life expectancy at birth for an Indigenous male was 71.6 years, more than eight years lower than that of non-Indigenous males (80.2 years).

Merkel told the full bench of the Federal Court on Monday a failure to close the gap in life expectancy between Aboriginal and Torres Strait Islander men and non-Indigenous Australians meant the former were unable to “enjoy” the age pension in the same way.

“We say the age pension is a special category and has a special purpose, protecting the elderly from the economic disadvantage of old age,” Merkel said.

“Whatever has changed with health standards … there’s nothing to suggest the gap is lessening.

Ron Merkel, KC, outside the Federal Court on Monday.Credit:Joe Armao

“They’ll enjoy [aged pension payments] to a lesser extent, by reason of that gap.”

In 1908, the federal government introduced the age pension for men once they reached the age of 65 and women from age 60.

In 2009, the government raised the age pension to 67 for both men and women.

Five Federal Court judges are now being asked to consider whether Aboriginal and Torres Strait Islander men are therefore being denied equal access to the age pension due to lower average life expectancy, and whether the pension age for eligible people should therefore be lowered.

Merkel submitted that life expectancy, and not simply the age when people were likely to stop working, was at the forefront of the government decision-making when it raised the age to 67.

The age pension was designed, among other things, to provide Australians with dignity and reduce their risk of poverty and social exclusion until their time of death, he said.

“We say [social security] is a human right … protected by three international conventions,” Merkel said.

The current legal bid stems from Fisher’s attempts in 2021, then aged 64, to access the age pension.

The Wakka Wakka elder, who was born in Queensland, had his claim refused then on the basis he had not reached the current pension age.

If his latest case is successful, he and other Indigenous men would be entitled to that relief.

Merkel said if approved, the change would mean all Indigenous men could be automatically eligible for the payments from the age of 64.

He also conceded while the Fisher test case was focused solely on men born in 1957, if his argument was successful, it would prompt similar changes for Indigenous women.

The Closing The Gap Report released in 2020 found Indigenous men and women were likely to live on average about eight years less than non-Indigenous Australians.

There is a gap of about eight years in the life expectancy of Indigenous and non-Indigenous men in Australia.Credit:Alex Ellinghausen

The federal government accepts there is a gap in the life expectancy of Indigenous and non-Indigenous people.

But Jenny Firkin, KC, acting for the Commonwealth, said the government disputed the current policy was discriminatory in any way, as the law was neutral and based solely on age alone.

“This notion of indirect discrimination is not supported by text,” Firkin said.

Last week Fisher said the pension was an important part of caring for and looking after people when they can’t work anymore.

He said as an Aboriginal man, he had seen too many of his people dying at a very early age.

“White people are living longer because they haven’t lost what we have lost. We are lucky to get to 50 years old,” Fisher said.

“Things will never get better unless we acknowledge something is wrong. We are asking the government to work together with us, to give our people the same chance in life as everyone else.

The hearing – before Justices Anna Katzmann, Debra Mortimer, Hilary Charlesworth, Wendy Abraham and Geoffrey Kennett – will continue on Tuesday.

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