Aboriginal aged pension claim 'correcting disadvantage'

An Aboriginal man's bid to access his age pension earlier than a non-Indigenous Australian is about "correcting historical disadvantage", his barrister says. 

Wakka Wakka man Dennis James Fisher is suing the Commonwealth in the Federal Court, arguing he should receive the pension from the age of 64 because of his shorter life expectancy. 

Australians are eligible to receive an age pension once they turn 67. 

Figures from the Australian Bureau of Statistics show a 65-year-old Indigenous man will live for a further 15.8 years on average, Mr Fisher's barrister Ron Merkel KC told the court on Monday.

In comparison, a 65-year-old non-Indigenous man will have another 19 years to enjoy his retirement. 

The life expectancy gap was shaped by a range of structural, social, cultural and health determinants including the historical and ongoing consequences of colonisation, Mr Merkel said. 

The shorter life expectancy was therefore a function of race and Mr Fisher's case was about correcting the historical disadvantage, the barrister said. 

"There is nothing in the relevant facts to say the gap is lessening," Mr Merkel told the court.

The former Federal Court judge argued Indigenous Australians should be allowed to enjoy their pension to the same extent as a non-Indigenous person, otherwise it would go against section 10 of the Racial Discrimination Act. 

The government used higher life expectancy as a reason to increase the pension age from 65 to 67 so it was an appropriate measure for this special case, Mr Merkel said. 

He argued if Indigenous men were expected to live for three years fewer than non-Indigenous men, then their pension age should be at 64 years.

Commonwealth barrister Jenny Firkin KC began her submissions before Justices Anna Katzmann, Debra Mortimer, Natalie Charlesworth, Wendy Abraham and Geoffrey Kennett on Monday afternoon.

The Commonwealth recognises and accepts there is a life expectancy gap but the Racial Discrimination Act was not the legal mechanism to address the issue, Ms Firkin said.

The pension age also did not discriminate between races as there were men with and without the pension regardless of their race, the barrister said.

The Commonwealth's submissions will continue on Tuesday.