Common(wealth) Knowledge #60: Is the pension age racist?
Aboriginal man Dennis Fisher unsuccessfully challenged the pension age by relying on his shorter life expectancy.
With the referendum for the Indigenous Voice to Parliament only a few months away, racial equality is currently a topical issue in Australia. Yet a recent unanimous ruling by the Federal Court of Australia’s Full Court, which rejected a claim that the age requirement for eligibility for the old age pension should consider a person’s racial background, reminds us that this discussion involves more than just the Voice.
66-year-old Dennis Fisher, who was the plaintiff in Fisher v Commonwealth , sued the Commonwealth government, arguing that he should have been eligible for the pension at 64, rather than at 67, when other Australians who were the same age as him would be eligible for the pension.
Fisher is a member of the Wakka Wakka Aboriginal community in Queensland, whose people won a native determination last year in Bell on behalf of the Wakka Wakka People # 4 v Queensland (No 2) .
After 25 years, they won rights to 114,000 hectares of land in several regional council areas between Gympie, Cherbourg, and Bundaberg. This was a mixture of exclusive control of some land and non-exclusive rights to use and access the rest for various purposes.
In the case at hand, Fisher based his argument on Section 10 of the Racial Discrimination Act 1975 (Cth). Although much of this Act deals with discriminatory or racist conduct and actions, including the famous Section 18C, Section 10 is concerned with discriminatory legislation.
In the past, Section 10 has been used to strike down legislation that was passed after 1975 that discriminated against Aboriginal and Torres Strait Islander peoples, including extinguishing any remaining native title claims. Indeed, Mabo v Queensland (No 1) (1988) saw the High Court strike down legislation passed by Queensland Premier Joh Bjelke-Petersen that attempted to prevent the native title claim in Mabo v Queensland (No 2) (1992) from being brought.
For Fisher, the key phrase of Section 10(1) is “enjoy that right to the same extent as persons of that other race.”
Relying on that phrase, he argued that setting a fixed age for all Australians is discriminatory, because it does not account for the fact that Aboriginal people have a lower life expectancy. This, he said, would prevent them from enjoying the benefits of the pension for the same length of time, or extent, as white Australians.
Therefore, he called for the court to lower the age by striking down that part of the Social Security Act 1991 (Cth). However, he did recognise that a person who seeks to take advantage of this lower pension age must still meet the other requirements for eligibility, like the length of residency in Australia.
The five judges who heard the case restated this argument as being that a law conferring a right to Australians, but which does not take into account the fact that different circumstances would not allow certain races to enjoy it to the same extent, would make it invalid under Section 10.
Although not a completely accurate comparison, a rough analogy could be made between Fisher’s argument and US-style affirmative action, which was recently struck down by the US Supreme Court, at least on a systemic level.
The Full Court recognised the systemic problems that Aboriginal and Torres Strait Islander communities suffer from, as a flow-on effect of colonisation, the Stolen Generation, the White Australia Policy, and other oppressive policies.
Furthermore, they rejected some arguments made by the Commonwealth government, and said that Section 10 applies to any legislation made by the government that grants a right that did not already exist under common law. The court ruled that “it has long been recognised that discrimination can sometimes be found in the unequal treatment of that which is unequal.”
Yet it was ruled that all successful uses of Section 10 to invalidate legislation in the past were only successful when the legislation in question limited, undermined, or completely destroyed an existing right. In contrast, the Social Security Act 1991 (Cth), although not the source of the authority behind social security or pensions, as that authority is the Australian Constitution, it nonetheless conferred those human rights on Australians.
The Commonwealth argued that Section 10 only invalidates laws that expressly discriminate based on race, or whose application “targets a particular race.”
The Full Court agreed with this characterisation. It claimed that “there is a danger” in saying that a person’s “personal circumstances,” like their race, are sufficient to invalidate a law for being discriminatory.
In particular, they had regard to Justice Gageler’s judgment in the High Court case Maloney v The Queen (2013), where His Honour said that the reference to ‘persons’ in Section 10 here was actually a reference to a group, rather than individual people. Yet pension applications depend on whether a person meets the necessary requirements, not whether a group does.
Therefore, although the Full Court agreed with the importance of social security as a human right, and their discussion of the social services system will be the focus of the next edition of Common(wealth) Knowledge, they refused to allow for a law to expressly favour a particular race, including Aboriginal and Torres Strait peoples, and so rejected Fisher’s argument, leaving him frustrated.
Although it is highly unlikely that the High Court will disagree with the Full Court’s ruling here if it is appealed, the High Court overturning this ruling is not impossible, as in 2020 the High Court, without answering questions of sovereignty before the arrival of the First Fleet, narrowly ruled that Aboriginal and Torres Strait Islander people cannot legally be considered ‘aliens.’ This was discussed in Common(wealth) Knowledge #6 and Common(wealth) Knowledge #10.
Even if the appeal wins, it would likely only be a narrow interpretation of Fisher’s argument, limited to Aboriginal and Torres Strait Islander peoples.
If this ruling is appealed, it may not be resolved in time for the Voice referendum.
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Bell on behalf of the Wakka Wakka People # 4 v Queensland (No 2)  FCA 371.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Fisher v Commonwealth  FCAFC 106.
Mabo v Queensland (No 1) (1988) 166 CLR 186;  HCA 69.
Mabo v Queensland (No 2) (1992) 175 CLR 1;  HCA 23.
Maloney v The Queen (2013) 252 CLR 168;  HCA 28.