Allowing an Indigenous Australian man to access his aged pension early would lead to “enormous” consequences in other areas of the law, the federal court has heard.
The full federal court on Monday commenced hearings in a landmark case brought against the commonwealth by 65-year-old Wakka Wakka man, Uncle Dennis, who is seeking to access the pension three years early on the grounds that Indigenous Australians have a shorter average life expectancy than the non-Aboriginal population.
Uncle Dennis, who has requested that his surname be withheld, had previously lodged a claim to receive the pension but it was rejected because he had not reached the pension age.
Commonwealth barrister Jenny Firkin KC on Tuesday argued life expectancy was not part of the legislative criteria to assess whether someone was eligible for the age pension.
Using life expectancy as a criteria would lead to an “unworkable uncertainty” where a person’s eligibility would shift depending on the year or their gender and race, Firkin told the court.
“It will have enormous implications for all laws which confer or restrict rights,” Jenny Firkin, KC, told the court.
The outcome of the case could also conflate the separation of powers and lead the court to questions it was ill-equipped to answer, Firkin said.
It could also have a flow-on effects to other areas of law including taxation and planning, she argued.
“The potential implications are indeterminate,” Firkin said.
But Uncle Dennis’ barrister Ron Merkel KC argued the case was about “correcting historical disadvantage”.
“There is a long historical disadvantage which is embedded structurally into Aboriginal and Indigenous society in Australia that is the direct cause of this life expectancy gap,” he said.
“The relief we’re seeking is to remove historical racial disadvantage and discrimination, to correct the wrongs of the past against Indigenous people.”
He argued that Indigenous Australians weren’t able to enjoy their “entitlement to the age pension to the same extent as those non-Indigenous persons”. He also argued the government used higher life expectancy as a reason to increase the pension age in 2009 from 65 to 67 so it was an appropriate measure for this special case.
Firkin denied it was a relevant reference, telling the court the purpose of raising the pension age was to reduce demand and encourage people to stay in employment for longer.
The legislation also did not suggest that every person needed to be on the pension for the same amount of time, Firkin said.
Justices Anna Katzmann, Debra Mortimer, Natalie Charlesworth, Wendy Abraham and Geoffrey Kennett reserved their decision, with a judgment to be handed down at a later date.