The case against the Australian government was heard by the full Federal Court on the 20th and the 21 February, with the judgment being reserved until further notice. 

Uncle Dennis brought the case with the Victorian Aboriginal Legal Service and the Human Rights Law Centre (HRLC), with support from DLA Piper. 

In the hearing, the Full Court was asked to consider whether Aboriginal and Torres Strait Islander people are 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 HRLC outlined that Uncle Dennis and his legal team argued that the gap in life expectancy means that Aboriginal and Torres Strait Islander people do not have the same opportunity to retire and receive support through the age pension as other Australians. The Full Court has been presented with facts agreed between the parties, including that social, economic and health inequalities experienced by Aboriginal and Torres Strait Islander people is a direct result of colonisation, which contributes to the gap in life expectancy they face today.

Josephine Langbien, HRLC acting managing lawyer, spoke to Lawyers Weekly about the case.

“Australia’s anti-discrimination laws protect everyone’s right to equality before the law. This means everyone must have equal access to important rights like the age pension, which is Australia’s social safety net for retirement,” commented Ms Langbien.  

“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.”

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“This is the first time the government has had to face court in connection with its failure to close the gap,” Ms Langbien continued. 

“This case is about ensuring Aboriginal and Torres Strait Islander people are better supported in later life and have the same right to age with dignity.”

Uncle Dennis detailed the importance of the case: “White people are living longer because they haven’t lost what we have lost. This is about acknowledging what happened here.”

“So many things that Aboriginal people are suffering from today, are because of how we have been treated since colonisation. Our language, our culture, our identity comes from this land,” he said. “We didn’t have a problem; a problem came here.”

“It’s only fair for the pension age to be lowered,” Uncle Dennis continued. “The pension is an important part of caring for and looking after our people when they can’t work anymore.”

Ms Langbien also discussed what is being fought for in the case.

“For the pension to be fair and equal, Aboriginal and Torres Strait Islander people should be eligible at least three years earlier, until the gap in life expectancy is closed,” she explained. 

“For many Aboriginal and Torres Strait Islander people, fair access to the pension would improve economic security and quality of life when they can no longer work.”

Ms Langbien also noted the legal implications of the case. “A positive outcome in this case would show that Australia’s anti-discrimination protections are working to remedy laws that cause or reinforce inequality. 

“It would also provide some measure of accountability for the Australian government’s failure to deliver on its promise to close the gap in life expectancy,” she stated. 

“The Australian government committed in 2007 to close the gap in life expectancy, but we still are not on track to meet this target within a generation.

“For Uncle Dennis, this case is not just about the pension; it is about holding the government accountable and telling the truth about the ongoing impacts of colonisation on his people.”

In mid-February, the federal government publicly acknowledged that the gap is not closing fast enough and committed millions in additional funding towards Closing the Gap initiatives.

“It remains open to the 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 in the Social Security Act,” the HRLC said in a statement. 

“Such a move would support several Closing the Gap targets, by improving financial security and wellbeing for Aboriginal and Torres Strait Islander people later in life,” it said. 

“Providing better support to Aboriginal and Torres Strait Islander people in retirement supports a number of closing the gap targets. 

“If the Albanese government is serious about closing the gap, it should embrace this change,” Ms Langbien asserted.