The Acting Assistant Commissioner for Pensions has asked for advice as to whether the allowance received by a claimant for pension from the Australasian Union Conference of Seventh-day Adventists should be regarded as 'income' within the meaning of section 4 of the Invalid and Old-age Pensions Act 1908-1919 under the following circumstances:

The abovenamed, who is a retired minister of religion, has claimed an old-age pension. He is in receipt of an allowance of £3 per week from the Australasian Union Conference of Seventh-day Adventists, but he contends that this payment should not be treated as income under the Invalid and Old-age Pensions Act. He considers that it comes within the exemption (referred to in section 4) of any payments-

(b) During illness, infirmity or old-age from any trade union, provident society, or other society or association. D/C has taken the same view and recommends that pension at maximum rate be granted.

2. Mr A. states that the amount of the payment is '£3 per week gross, £2 14s Od net'. He explains that he returns a tithe of all he receives from the Church. However the amount he actually receives from the Conference is £3 per week, though in any case the sum of £2 14s Od per week is sufficient to disentitle him to pension if the payment be treated as 'income'. He is a married man and has seven children ranging in age from 17 years to 5 weeks. He receives war pension of 22s p.f, owns his home (mortgaged), also pony, sulky and cow.
3. The Treasurer of the Australasian Union Conference of Seventh-day Adventists states that the payment is made to Mr A. 'on the ground of the state of health of the applicant preventing him from engaging in active service as a minister of the gospel . . . and in consideration of his large family of young children being otherwise without means of support'. In reply to further inquiries, the Treasurer states:

Payment made to Mr A. is entirely of a gratuitous nature. He has no legal claim upon our Conference whatever. The funds from which he is paid are provided from the general funds of our Conference, and not from subscriptions paid by our ministers for the purpose of establishing a sustentation fund. We have no rules or administration governing this fund. It is applied by vote of the Executive Committee of the Conference and each case is dealt with upon its own merits.

Ex-Attorney-General, Sir W. Irvine gave an opinion on 9 July 1914 that the 'associations' referred to in section 4 of the Act were 'voluntary associations which provide benefits out of their own funds'.⁽¹⁾ Following on this opinion the Secretary, Attorney-General's Department, ruled that annuities from the annuity fund of the Commercial Travellers' Association should be regarded as income, because, though the fund was a private one, the annuitants had no legal claim on the fund, and need not have subscribed anything to the fund, and therefore the annuities were in the nature of gratuities and were not on the same footing as benefits from the funds of a voluntary association.⁽²⁾

4. Although the payments made to Mr A. are from what is really an 'association', the evidence shows that the payments are entirely of a gratuitous nature and that claimant has no legal claim on the Conference and has not subscribed anything to any sustentation fund. In the circumstances it is thought that the payments should be

treated as 'income' and the claim rejected. If this view be accepted there is little doubt that Mr A. will appeal against the decision. It might be advisable, therefore, to refer the papers to the Attorney-General for an opinion on the matter. This would place the question beyond doubt.

The definition of 'income' in section 4 of the Invalid and Old-age Pensions Act 1908-1919 is as follows:

'Income' means any moneys, valuable consideration, or profits earned derived or received by any person for his own use or benefit by any means from any source whatever, whether in or out of the Commonwealth, and shall be deemed to include personal earnings, but not any payment-

1. By way of benefit from any friendly society registered under any Act or State Act, or
2. During illness, infirmity, or old-age from any trade union, provident society, or other society or association, or
3. By way of allowance under the Miners Accident Relief Act 1900 of the State of New South Wales, or
4. By way of gift or allowance from his son, daughter, step-son, step-daughter, grand-son, grand-daughter, or legally adopted son or daughter, or
5. by the Commonwealth, to any person by reason of his dependence on a member of the Forces within the meaning of the War Pensions Act 1914-1916, or
6. by the Commonwealth in pursuance of an allotment made by a member of the Forces within the meaning of that Act, or
7. by way of war pension under the provisions of the War Pensions Act 1914-1916, to any person who is a dependant within the meaning of that Act.

The opinion given by Sir William Irvine in the case of a pension from the Colonial Sugar Refining Company Employees' Fund and referred to in this case was as follows:

... in my opinion the words 'or other society or association' in paragraph (b) of the definition of 'Income' in section 4 of the Act ought not to be read so widely as to extend to such a case as this. In view of the particular words-'trade union, provident society'-which precede those general words, I think that the associations referred to were voluntary associations which provide benefits out of their own funds, and do not extend to subscribers to a private fund such as this, which is supported by a contribution from the employing company, and subscription to which is compulsory for employees entering the company's service.⁽²⁾

In the case now under consideration payments are admitted to be in the nature of gratuities, to persons receiving which have no legal claim, nor do they subscribe, to the fund. Such payments are therefore not on the same footing as benefits from the funds of a voluntary association.

In my opinion the allowance to Mr A. is not within exception (b) of the definition of 'Income' and must be regarded as 'Income'.

[Vol. 17, p.58]

(1)Opinion [Vol. 12,p.385] not published in vol. 1.

(2)Opinion [22 December 1914; Vol. 13,p.154] not published.