Pemberton v Commonwealth

The plaintiff, Walter Pemberton, brought an action against the Commonwealth of Australia seeking a declaration that he was entitled to a pension and payment of arrears. Pemberton had been transferred from the Victorian Public Service to the Commonwealth Public Service in 1901. He retired from Commonwealth service in 1932 and claimed a pension under a Victorian Act passed in 1925, which provided pension rights for officers appointed during a specific period, including the period of his own appointment. The Commonwealth demurred, arguing that Pemberton was not entitled to the pension claimed. The High Court of Australia was required to determine the legal issues.

The central legal issue before the court was the interpretation of section 84 of the Commonwealth Constitution and section 45 of the Commonwealth Public Service Act 1922-1931. Specifically, the court had to determine whether the phrase "all existing and accruing rights" and the entitlement to a pension "which would be permitted by the law of the State" referred to the law in force at the time of the officer's transfer to the Commonwealth service, or at the time of their eventual retirement. The plaintiff contended that the relevant State law should be that in force at the time of his retirement, allowing him to benefit from the 1925 Victorian Superannuation Act. The Commonwealth argued that the rights were crystallised at the time of transfer, and therefore, the later Victorian Act could not apply.

A majority of the High Court, comprising Rich, Starke, Dixon, and Evatt JJ., held that the phrase "which would be permitted by the law of the State" in section 84 of the Constitution and section 45 of the Commonwealth Public Service Act referred to the law of the State in force at the time of the officer's transfer to the Commonwealth. Their Honours reasoned that the intention of these provisions was to preserve the rights that an officer possessed at the moment of transfer, not to grant them rights that might subsequently arise under State law. The court found that at the time of Pemberton's transfer in 1901, there was no State law entitling officers appointed during his period of service to a pension. Therefore, the subsequent Victorian Superannuation Act of 1925 could not create a pension right that was preserved by the Commonwealth Constitution or the Public Service Act. McTiernan J. dissented.

The majority of the court upheld the demurrer. Consequently, the plaintiff's claim for a declaration of entitlement to the pension and for payment of arrears was dismissed.