Indigenous pension case challenges government’s ‘failure to close’ life expectancy gap

If given the chance to retire, 62-year-old Julianne Lomas would devote her time to caring for her granddaughter, volunteering with community groups and addressing her health issues.

Instead the Gamilaraay woman was forced to return to work last year to support herself and her family. Despite juggling health problems after an accident in 2018 that affected her ability to work, Lomas is back working 25 hours a week at a furniture business.

Lomas accessed her superannuation early after that accident, but under current laws is not eligible for the age pension for another five years when she is 67. This is the same age for non-Indigenous Australians, despite Indigenous Australians having a significantly lower life expectancy, meaning on average they will receive the benefit for a shorter time.

“I sincerely believe that Aboriginal women should be able to get the pension earlier,” Lomas told Crikey. “In my home community in Walgett, I know so many people in the last few years who have worked into their 60s and passed away before they got the chance to retire.

“The pension could make a real difference for me and all Aboriginal and Torres Strait Islander women. If I could stop working, I would have the time to focus on my health more. I want to be around a bit longer for my children and my grandchildren.”

The pension eligibility age is being challenged in the Federal Court, with a push to lower it by at least three years for Indigenous Australians. The case has been brought by Wakka Wakka man Uncle Dennis, with the backing of the Victorian Aboriginal Legal Service (VALS) and the Human Rights Law Centre.

Uncle Dennis, 64, attempted to access the age pension in late 2021 but was rejected due to his age.

“It’s only fair for the pension age to be lowered,” Uncle Dennis said last week. “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.”

The case was heard by the full Federal Court last week, with Uncle Dennis arguing that the gap in life expectancy between Indigenous and non-Indigenous Australians means that Aboriginal and Torres Strait Islander peoples do not have the same opportunity to retire and receive government support.

Uncle Dennis’ lawyer, Ron Merkel KC, said a 65-year-old Indigenous man today will live for another 15.8 years on average, but a non-Indigenous man would live for 19 more years.

According to the most recent estimates, life expectancy at birth for an Indigenous man is 71.6 years. For a non-Indigenous man it is 80.2 years. For an Indigenous woman, the life expectancy at birth is 75.6 years, and for a non-Indigenous Australian it is 83.4 years.

Human Rights Law Centre acting managing lawyer Josephine Langbien said the hearing last week was “robust”. A a decision is not expected until towards the end of the year.

“This was the first time the federal government has had to face court in connection with its failure to close the gap in life expectancy,” Langbien told Crikey.

The case hinges on section 10 of the Racial Discrimination Act, which states that everyone is equal before the law and that the government cannot make laws that give some citizens lesser access to rights or benefits than others.

“That’s precisely what the standard blanket pension eligibility age does — it gives Aboriginal and Torres Strait Islander people less access to support later in life, because shorter life expectancy means that on average they have fewer years to retire and receive support through the pension,” Langbien said.

“Discrimination is at the heart of this issue because the gap in life expectancy is so closely connected to the historical and ongoing impacts of colonisation and racism. This is a connection the federal government does not deny.”

The case relates specifically to Indigenous men aged similarly to Uncle Dennis, but if successful would be likely to set a precedent that would apply to all Indigenous Australians.

“If the court determines that the pension age should be adjusted to reflect the gap in life expectancy, that principle would clearly be applicable to all Aboriginal and Torres Strait Islander people,” Langbien said.

“We would expect the federal government to extend that change to all First Nations people in good faith. If it did not do so, it would leave the government open to further litigation. Too many Aboriginal and Torres Strait Islander people pass away before ever having the chance to stop working and enjoy retirement.”

VALS CEO Nerita Waight said lowering the pension age was a “simple and practical” step the federal government could take to help close the gap.

“Lowering the pension age to ensure our elders have the necessary support to lead a dignified life in later life is a concrete step the Albanese government can take for reconciliation,” Waight told Crikey.

“Our elders deserve to retire in dignity and afford essentials such as housing, food and healthcare.”