An Aboriginal man has lost his bid to access his age pension sooner than a non-Indigenous man. 

Wakka Wakka man Uncle Dennis tried to sue the Commonwealth in the Federal Court, arguing he should have been eligible to receive the pension at the age of 64 rather than 67 because of his shorter life expectancy. 

But the full court did not agree, instead finding an Aboriginal man could enjoy the right to an age pension to the same extent as a non-Aboriginal man of the same age.

“The applicant has not demonstrated any lesser enjoyment of the relevant human right – the right to social security,” the judgment handed down on Wednesday read.

During February’s hearing, Uncle Dennis’ barrister Ron Merkel KC argued the case was about “correcting historical disadvantage”.

Mr Merkel said Aboriginal men should be able to enjoy the pension to the same extent as non-Indigenous men, otherwise it would go against section 10 of the Racial Discrimination Act.

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.

But commonwealth barrister Jenny Firkin KC said 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, Ms Firkin told the court.

Chief Justice Debra Mortimer and Justices Anna Katzmann, Natalie Charlesworth, Wendy Abraham and Geoffrey Kennett have given the parties 35 days to file any further submissions.

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