Fisher v Commonwealth of Australia [2023] FCAFC 106

Fisher v Commonwealth of Australia [2023] FCAFC 106

The Full Court held that Indigenous men do not enjoy the right to apply for and receive the age pension to a more limited extent than non-Indigenous men by reason of the statutory pension age; the right to the age pension is equally conferred for the duration of an individual's life after reaching 'pension age', and disparity in total period of receipt due to differences in life expectancy is not an unequal enjoyment of the right created by the statute for s 10(1) RDA purposes.

Jurisdiction
Australia
Judgment Date
12 July 2023
Procedural Posture
Representative Proceeding (special Case Questions of Law) / Judgment of Full Court on Special Case (questions of Law Stated)
Outcome
Claims for unequal enjoyment of the age pension by Indigenous men dismissed; special case questions answered: (1) Yes (same interest)—(2) No (not a more limited extent)—(3) Does not arise.
Legal Topics
['racial Discrimination' 'social Security' 'equality Before the Law' 'representative Proceedings']
['administrative Law' 'constitutional Law' 'human Rights'] ['racial Discrimination' 'social Security' 'equality Before the Law' 'representative Proceedings']

Case Brief

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Procedural Posture

Representative Proceeding (special Case Questions of Law) / Judgment of Full Court on Special Case (questions of Law Stated)

Legal Issues

  1. 1 ['Whether Aboriginal men enjoy the right to apply for and receive the age pension to a more limited extent than non-Indigenous men within the meaning of s 10 of the Racial Discrimination Act 1975 (Cth)' "Whether s 10 of the Racial Discrimination Act 1975 (Cth) operates to alter the 'pension age' for Indigenous men due to lower life expectancy" 'Whether all represented persons have the same interest in the representative proceeding']

Ratio Decidendi

The Full Court held that Indigenous men do not enjoy the right to apply for and receive the age pension to a more limited extent than non-Indigenous men by reason of the statutory pension age; the right to the age pension is equally conferred for the duration of an individual's life after reaching 'pension age', and disparity in total period of receipt due to differences in life expectancy is not an unequal enjoyment of the right created by the statute for s 10(1) RDA purposes.

Court Disposition

Claims for unequal enjoyment of the age pension by Indigenous men dismissed; special case questions answered: (1) Yes (same interest)—(2) No (not a more limited extent)—(3) Does not arise.

Orders

  • ['Questions of law in the amended special case answered as: (1) Yes (same interest); (2) No (not to a more limited extent); (3) Does not arise.' 'Each party to file and serve submissions on further orders within 35 days.' 'Proceeding referred back to a docket judge for case management, subject to further orders.']