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Common(wealth) Knowledge #61: Social Security and Equality

New court discussion on the right to social security in Australia.

Last week in Common(wealth) Knowledge #60, we looked at a recent Federal Court ruling where the court said that the pension age is not racially discriminatory to Aboriginal people with shorter life expectancies. However, the court also discussed the development of equality, welfare, and the right to social security in Australia, which will be the focus of this article.

The Australian Constitution initially contained a limited welfare power, Section 51(xxiii). This allowed the Commonwealth government to make laws providing for invalid and old-age pensions. They did this with the Invalid and Old-Age Pensions Act 1908 (Cth), although, as Between Parkes Place and Capital Hill guest Chris Rudge pointed out, the welfare system does predate this law, through state laws that led to the need for this provision in the first place.

The Federal Court, in Fisher v Commonwealth [2023], pointed out that this initial law treated welfare as a ‘privilege,’ not a ‘right.’ Although the government claimed that it was important to look after the older generations who could no longer work, this law was very much a product of its time.

Sadly, it was consistent with the White Australia Policy, meaning that it did not apply to Asians who weren’t born in Australia or any “aboriginal natives of Australia, Africa, the Islands of the Pacific or New Zealand.”

It wasn’t until 1942, with the Invalid and Old-Age Pensions Act 1942 (Cth) that Australian Aboriginal and Torres Strait Islander peoples were eligible. But, even then, it was limited by the ‘race power’ of Section 51(xxvi), meaning that Aboriginals couldn’t be eligible for the federal pension if state laws prevented them from being eligible.

Even where state laws didn’t deny them access to a pension, the 1942 Act put another hurdle in their way: they had to meet a standard of “intelligence and development,” based on the same Social Darwinist principles of ‘backward natives’ that led to the Stolen Generations.

However, times were changing, and there was a demand for much greater welfare powers.

The years during and immediately after World War 2 saw a big change in how people understood the nation-state. War, as a time of crisis, always sees the expansion of government power. For example, the National Security Act 1939 (Cth) gave the Commonwealth government the ability to temporarily take control of private property for ‘war purposes,’ and court cases dealing with the repercussions of this still occasionally show up. One recent example was Qld v Congoo (2015).

However, World War 2 came directly after the Great Depression. Australian governments responded in one of two ways. Labor governments, like the New South Wales government of Premier Jack Lang, began extensive welfare programs to lift people out of poverty. In contrast, the federal government was dominated by the conservative United Australia Party, which preferred to cut spending to save money.

World War 2 and the success of the USA’s ‘New Deal’ welfare programs meant that progressive welfare policies won this financial war. So, with a Labor government and a new Liberal opposition who agreed to back a referendum on expanding welfare, Australia voted in 1946 to add the new Section 51(xxiiiA) to the Australian Constitution, known as the ‘social services power’ or ‘welfare power.’

(Check out Common(wealth) Knowledge #35 for the immediate reaction to these new powers).

1946 marked the transition of Australia from ‘state welfare’ to a ‘welfare state.’ Welfare was no longer just a power that the government had, it was now one of its key responsibilities.

Just one year before the 1967 referendum, which amended the race power and allowed Aboriginals to be counted in the census, all prohibitions on giving Aboriginals a pension were removed by Section 29 of the Social Services Act 1966 (Cth).

The Federal Court noted two key changes to the old-age pension since then.

Firstly, the Social Security Legislation Amendment Act 1994 (Cth) corrected the pension age. Previously, the retirement age for men had been 65, but only 60 for women. This Act changed the focus from age to date of birth to determine when someone would be eligible, with both men and women having the same pension age from 1 January 2014.

The other change came with the Social Security and Other Legislation Amendment (Pension Reform and Other Budget Measures) Act 2009 (Cth), which raised the pension age from 65 to 67. This was because demographic changes, which would lead to an older Australian population, meant that the government saw the age of 65 as being financially ‘unsustainable’ for the budget.

According to the Federal Court, the pension age doesn’t worry about how long a person will be on the pension before they die or whether or not a person can actually work. It simply seeks to “provide a minimal level of dignity in retirement” and make sure that no one slips through the cracks of the system.

The court rejected claims that the situation before 1994, where there was a five-year gap in the pension age between men and women, and the case before the court, where an Aboriginal man had a shorter life expectancy, were similar.

The situation before 1994 was unequal because the actual age needed to qualify for the pension was different between men and women. It was successfully argued, at the time, that this was sexual discrimination.

In contrast, today the pension age for all Australians is the same. Therefore, the court held that there was no racial discrimination in the pension age, so it did not violate the Racial Discrimination Act 1975 (Cth).

The court’s stance can perhaps be best summarised by a quote from paragraph [132] of the judgment:

“The difference in life expectancy is the consequence of a host of factors beyond the contemplation of the [Social Security Act 1991 (Cth)]; and each of those factors, as noted above, reflects social disadvantage rather than something intrinsic to Indigenous people. Those aspects of disadvantage and the resulting difference in life expectancy may change over time, leading to different levels of access to the age pension while the content of the domestic law ‘right’ remains constant.”

For this ruling to be successfully overturned on appeal to the High Court, if it is appealed to the High Court, it would have to be argued the court’s characterisation of the short life expectancy as a mere “social disadvantage” was incorrect.

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Fisher v Commonwealth [2023] FCAFC 106.

Queensland v Congoo (2015) 256 CLR 239; [2015] HCA 17.


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