Eligibility for Age Pension faces court challenge

The Age Pension can be complex, guarded by income and assets tests, residency rules and age limits. Which is why there are businesses purely to help older Australians through the application process. Now, a lawsuit in the Federal Court may be about to add another degree of complexity.

Should the average life expectancy of different cultures have an impact on the age at which the pension should be permitted?

First Nations man Dennis James Fisher is arguing exactly that. He says he should receive the pension at 64 rather than 67 because of his shorter life expectancy.

According to Australian Bureau of Statistics (ABS) figures submitted to the Federal Court, an Indigenous man aged 65 can expect to live a further 15.8 years on average. In comparison, a 65-year-old non-Indigenous man will live another 19 years.

Mr Fisher’s barrister, Ron Merkel, KC, says the case is about “correcting historical disadvantage” and that there is nothing in the relevant facts to say the gap is lessening.

Aboriginal men should be able to enjoy the Age Pension for a similar average time period as non-Indigenous men, otherwise it contravenes section 10 of the Racial Discrimination Act, Mr Fisher says.

Pension age changes

He also based his argument on the gradual increase in the Age Pension age since 2009, based on increased life expectancy.

Age Pension age was 65 back in 1909, 60 for women from 1910, but we’re living longer healthier lives, putting a heavier ‘burden’ on the government purse, so since 2017 eligibility age has been increasing by six months every two years. It will be 67 from 1 July.

Mr Merkel says this premise is an appropriate basis for Mr Fisher’s case.

Mr Fisher told news.com.au: “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. We didn’t have a problem, a problem came here.”

Flow-on effects

The Commonwealth says that allowing an Aboriginal man to access an Age Pension sooner than a non-Indigenous man will lead to unintended changes in other areas of the law.

Commonwealth barrister Jenny Firkin, KC, says that using life expectancy as a criteria will lead to an “unworkable uncertainty” where a person’s eligibility will shift depending on the year or their gender and race, The Age and The Sydney Morning Herald report.

It could also have flow-on effects to other areas of law including taxation and planning, she says, adding: “The potential implications are indeterminate.”

Alex Walters, from the Victorian Aboriginal Legal Service, who is acting for Mr Fisher, says the case is about fairness.

“The argument is pretty simple,” he told news.com.au, “because of the gap in life expectancy for First Nations people, they don’t have the same opportunity to retire and receive the support of the pension in later life.”

He says there are already areas of public policy, such as aged care services, where adjustments for the gap in life expectancy are made.

The hearing continues and is expected to be decided later this year.

What’s your view on this case? Is the argument sound? Why not share your thoughts in the comments section below?

Also read: Will Age Pension eligibility age be raised again?

Janelle Ward
Janelle Wardhttp://www.yourlifechoices.com.au/author/janellewa
Energetic and skilled editor and writer with expert knowledge of retirement, retirement income, superannuation and retirement planning.


    • I totally agree. All administration costs from Centrelink would be cut and no other agency other than the Australian Tax Office would be needed. Tax would be payable on the universal pension if taxable incomes go above the low income earner threshold. Age pension age needs to be reinstated to 65. Work cover entitlement basically ends at age 65 and medically a person is classed as a geriatric when they turn 65. Its not about how long a person lives but their quality of life.

  1. Maybe this should also apply to those with terminal illnesses so they may hopefully enjoy the remainder of their lives without the financial stress.
    Aboriginals aren’t the only ones with a shorter life expectancy!

  2. This is pure and simple racial discrimination, the same arguments apply to all races, everyone was included in the average age for the pension in the ABS to start with, why is everything about race, with separate rules for black and white, are we not all Australians?

  3. I was hoping this article was a broadstroke challenge to the age at which age pension kicks in and somehow there was light in bringing it back to a sensible 65.

    But no, we now live in the age of anarchy and it’s everyone for themselves… how very sad.

    As others have stated, the average is just that, an average. I could cite many people that will have a below average life expectency due to their genetic history or lifestyle choices.

    Interstingly, why has no one ever challanged based on sex? If the main argument in this case is that Aboriginal people have a shorter life expectancy and therefor should have the pension earlier. Men statistally have a shorter life exptectancy than women but for decades had to wait and extra 5 years before they received their pension and no one blinked an eye.

    As for the government always saying we need to raise the pension age because we can’t afford it. Funny how they always have money to send overseas, or buy a new submarine, or pay for their own pensions at a very early age.

  4. This is opening a Pandora’s box. It isn’t only Indigenous folk who have shorter lives and we can just as easily flip the coin to a potential argument that folk from some cultures, other than Caucasians, live longer than everyone else. Should they have the pension age pushed out even further? It is ridiculous! Someone here commented on the Voice so I will chip in my two bob’s worth. I don’t believe for one second that the Voice will only want to be heard and NOT acted upon. There is no point to it otherwise. I will not support any policy or change that is divisive….we have a scrambled egg population and you can’t unscramble it for any individual group, even if they are indigenous. One set of rules for everyone!

    • Well said Monty, indig just playing the race card again, they already have special opportunities for a better life and health if they could be bothered to take them. I too will be voting no for the Voice with unknown but no doubt endless entitlements. With a budget of 33 billion per annum perhaps where and how this money is being spent needs to be investigated. For the record my caucasian father died aged 63.

  5. Equality for all Australians should be no different if your black or white. Set retirement age and lock it in my opinion should go back to 65 male and female 60 . enjoy life what’s left of it when you retire your along time dead.

  6. What will be next.
    Enough is enough and it’s always about money.
    I know many whites with terminal illness’s and can’t get pension
    Don’t discriminate against white people. Because it’s becoming like that now.

  7. Firstly, Is it true that Indigenous people have a shortened life expectancy.
    The figures (Statistics) are easily skewed by infant mortality. So basically, the higher the infant mortality the shorter the statistical Life expectancy.
    Agreed that this is at least a large part due to life style and availability of medical treatment/Facilities.
    But this does not mean that a person reaching pension age has a shortened life expectancy. But it does mean that we should be looking at the reasons for premature death in “regional” areas.
    We should all be equal ( NOT some are more equal than others)

  8. Sorry, I have worked for all my adult life ( I’m 83 ), put money away, BEFORE the Government introduced compulsory superannuation. We had a small business until the interest rate went to 17%, then unable to cope with it, went bankrupt – despite help from, fantastic accountants and banks. We lost everything, but, we battled on, until retirement – we used our saved superannuation and whatever we saved in the bank. We had enough to purchase a home in a lifestyle village, and we are still going strong – my question is, why do the aboriginals, some who have never had a job, keep getting all this support – why cant they work for it the same as ” ordinary ” Australians – stop putting a wedge between us – be fair.

  9. I thought the “Voice” to Parliament is to improve the lifestyle and health of the First Nation People. This request for access to an early-age retirement has confused the objective of the “Voice” to Parliament. Remember the adage, “can’t have the cake and eat too.”?

  10. I understand Indigenous (aboriginal) people already get a lot of taxpayer benefits not available to other Australians. Therefore if the age pension is found in their favour all other persons born in Australia are indigenous so all current aboriginal benefits should apply to all Australian born people. The Federal Government (Australian taxpayer) does not need to find any extra funds just divide the current costings to include all persons born in Australia regardless of their colour or background. Problem solved, stop trying to complicate the system making lawyers rich when most of the time I doubt they know what their talking about.
    As a self funded 69 year old retiree of almost 11 years I am sick and tired of people who did not try and better themselves and expect handouts. All benefits (if any) should be universal to all Australians!

  11. Mr Fisher is pushing a dangerous and fallacious barrow here. As part of my formal tertiary studies aboriginal traditional life was over-viewed. More recent readings of studies directly of the traditional cultures of the aboriginals gave a more stark and unpleasant record of their culture. It was not kind, it was not gentle, it did not engender a long and healthy life span.
    As best as could be determined, at the time of “colonisation”, the typical life expectancy of aboriginals living in their traditional culture, was less than 50 years.
    Out of the remote and too many rural communities, many aboriginals lead lives little different from their caucasion “cousins”. As these people have access to exactly the same level of education and health care, their lifetime health should be little different to their neighbours. When the numbers from the lesser catered remote communities are included, the life expectancy is pulled down. Lifestyle choices play a very large part in that. Witting lifestyle choices.
    Unless Mr Fisher wittingly and willingly engages in lifestyle choices that hinder good health, his life expectancy should be no different to his white colleagues. To pursue this claim for an earlier access to the Age Pension, he is risking dividing the community on racial grounds. For no benefit to anyone.

- Our Partners -


- Advertisment -
- Advertisment -