Pemberton v Commonwealth [1933] HCA 18

PEMBERTON ye) aps, and 7b. Nesting

THE COMMONWEALTH . . 4 F

HIGH COURT (1933.

[HIGH COURT OF AUSTRALIA.] PLAINTIFF ; AND

Derenpant.

H.C. or A, Constitutional Law—Transfer of State Public Service Departments to Commonwealth

1933. Ww 'MELBOURNE, March 21.

SyDNEY, April 24

Rich, Starke, Dixon, Evatt and McTiernan

—Transferrea officers—Preservation of "all existing and accruing rights" — Right to retire on pension which would be permitted by law of State—Hypothetical continuation of service with State—Officer having no pension rights at date of transfer—Pension rights subsequently conferred on State officers.—The Constitution (63 & 64 Vict. c, 12), sec. 84* Commonwealth Public Service Act 1922-1931 (No. 21 of 1922—No. 21 of 1931), sec. 45*—Superannuation Act 1928 (Vict.), sec. 58.*

'The plaintiff was appointed to the Post and Telegraph Department of Victoria after 24th December 1881 and before Ist November 1883. On Ist March 1901, when the plaintiff was transferred to the Commonwealth Public Service, there was no provision in the law of Victoria entitling officers appointed between those dates to a pension on their retirement from the Public Service of Victoria.

Held, by Rich, Starke, Dixon and Evatt JJ. (McTiernan J. dissenting), that in sec, 84 of the Constitution and sec. 45 of the Commonwealth Public Service

*Sec. 84 of the Constitution is as follows :—

"4. When any department of the public service of a State becomes trans- ferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Govern- ment of the Commonwealth.

" Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, pay- able under the law of the State on the abolition of his office.