An Aboriginal elder's legal bid to access the age pension three years early due to his lower life expectancy has been unsuccessful.
The legal challenge, brought by Wakka Wakka man Uncle Dennis, argued that the Commonwealth's failure to take into account the gap in life expectancy between Indigenous and non-Indigenous men is a breach of section 10 of the Racial Discrimination Act.
On average, Aboriginal and Torres Strait Islander men have a life expectancy almost 9 years lower than non-Indigenous men.
First Nations people experience greater rates of physical and mental health problems, making premature death far more common than it is for non-Indigenous Australians.
When these factors are accounted for, the gap in life expectancy narrows to 3.2 years for men aged 65.
In its judgment, delivered last week, the full federal court said that the suffering of First Nations people as a consequence of the "ongoing effects of colonisation, dispossession, destruction of cultural bonds, poor access to services and racist policies" is a "matter of grave concern".
However, the court said, Aboriginal and Torres Strait Islander people do not enjoy the right to the age pension to a lesser extent than non-Indigenous Australians, and the current social security system does not violate the Racial Discrimination Act.
The judgment said that the age pension is designed to prevent Australians from falling into poverty in retirement and is not intended to provide individuals with a certain amount of money or support for a specific number of years.
"It is inherent in its design that the period for which a person qualifies for the pension will depend on whether they reach the relevant age and how long they live afterwards," the court said.
"Based on the statistics, a randomly selected Aboriginal man will probably qualify for the pension for a shorter period than a randomly selected non-Aboriginal man of the same age.
"Each enjoys the right to the pension (subject to meeting payability criteria) for as long as he lives and thus as long as he needs it."
'Colonial legal system'
In a statement after the court's decision, Uncle Dennis - who prefers his surname not be published - said he was "frustrated with this white system".
"It's not a system of the land. It doesn't give us a say," he said.
"Things will never get better unless the Government closes the gaps it creates."
Uncle Dennis brought the case with the support of the Victorian Aboriginal Legal Service (VALS) and the Human Rights Law Centre (HRLC).
Both groups expressed disappointment in the decision and called on the Albanese Government to lower the pension age for First Nations people.
"It is deeply disappointing that the colonial legal system has not recognised what Aboriginal and Torres Strait Islander people have long known to be true -- that the age pension system isn't working fairly," HRLC's acting managing lawyer Josephine Langbien said.
"Regardless of the court's decision, the Albanese government has a responsibility to do the right thing and ensure Aboriginal and Torres Strait Islander people have fair access to the pension."
The federal court's decision was delivered the same day as the Productivity Commission's latest annual Closing the Gap report.
The report confirms that only four Closing the Gap targets are on track to be met and another four are going backwards.
Despite some improvement, the target of equal life expectancy by 2031 is not on schedule.
Langbien said the Closing the Gap report shows why lowering the pension age for First Nations people is necessary.
"The Albanese government should be seizing every opportunity to address the health impacts of generations of systemic discrimination, and implementing changes that will support Closing the Gap targets."
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