Federal Court rejects Elder’s bid to access age pension early

An Aboriginal Elder has lost his bid to access the age pension sooner than a non-Indigenous person.

Wakka Wakka man Uncle Dennis sued the Commonwealth Government, Minister for Government Services and Minister for Families and Social Services in the Federal Court of Victoria, arguing he should have been eligible to receive the pension at 64, instead of 67, due to his shorter life expectancy.

Uncle Dennis, who was born in Queensland, had argued the Commonwealth’s failure to account for differences in life expectancy in the pension breached Section 10 of the Racial Discrimination Act 1975 (Cth), which reads:

“If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.”

He contended Aboriginal and Torres Strait Islander people did not have the same opportunity to retire and receive support through the age pension as other Australians, on account of a shorter life expectancy.

The judgment by Mortimer CJ, Katzmann, Charlesworth, Abraham and Kennett JJ published yesterday said Uncle Dennis and “representative persons” – indigenous men who turned 65 in 2022 – did not have the right to apply for the age pension earlier on the basis of racial disadvantage.


“The social security system as a whole would not treat members of all races with equal dignity and respect if it provided members of a particular race with more limited access to the age pension than others,” the judges said.

However, the judges stated there were “unacceptable differences in health and socio-economic status” between First Nations people and other Australians.

“The fact that indigenous men in the applicant’s age group are expected on average to live – and thus enjoy access to the age pension – for around three years less than other men is, as the agreed facts make clear, a tragic consequence of two centuries of dispossession, marginalisation and destruction of social structures,” they said.

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

After the decision, he said he was “frustrated”.

“White people are living longer because they haven’t lost what we have lost,” he said in a statement.


“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.”

Read the full judgment here.

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