The Assistant Commissioner of Pensions has forwarded for advice the following memorandum:

I am forwarding herewith all papers relating to a claim for an old-age pension
lodged by A.B.C., retired clergyman, who is in receipt of annuities as under:

Australian Clergy Provident Fund . . .	£49 3s 4d
Clergy Superannuation Fund, Diocese of Ballarat . . .	£25 0s 0d

1. Will you kindly favour me with advice as to whether each of the abovementioned annuities may be regarded as a payment within the meaning of paragraph (b) of the definition of 'Income' in section 4(1) of the Invalid and Old-age Pensions Act.
2. In connection with the matter I would invite attention to your opinion of 31 July 1911⁽¹⁾ relating to payments from the Methodist Supernumerary and Ministers' Widows' Fund, also to Attorney-General Sir William Irvine's opinion of 9 July 1914⁽²⁾ in connection with the Colonial Sugar Refining Company Employees' Fund and the Tasmanian State Teachers' Superannuation Fund, your opinion of 22 December 1914⁽³⁾ relating to the annuity fund of the Commercial Travellers' Association, and your opinions of 21 September 1920⁽⁴⁾ and 19 December 1921⁽⁵⁾in connection with an allowance received from the Australasian Union Conference of Seventh-day Adventists.
3. For your information I am forwarding with the papers a copy of the rules of the Australian Clergy Provident Fund, also copies of the Superannuation Act (No. 7 1899) of the Church Assembly, Ballarat, and the following amending Acts: No. 1 of 1901, No. 4 of 1904, No. 4 of 1906, No. 7 of 1906, No. 4 of 1918 and No. 12 of 1922.

By section 4 of the Invalid and Old-age Pensions Act 1908-1920 income does not include any payment during illness, infirmity or old age from any trade union, provident society, or other society or association.

For the purpose of determining whether the payments referred to above come within that exception, it is, I think, necessary to review the various opinions that have been given from time to time as to the cases covered by the provisions of that paragraph.

On 7 August 1909⁽⁶⁾ the Attorney-General (Mr Glynn) advised that an annuity from the Australian Mutual Provident Society would not be included in the exception. He did not, however, give any reasons for his opinion.

On 15 September 1909⁽⁷⁾ the Attorney-General advised that payments from the New South Wales Miners' Accident Relief Fund were income. The Fund was established by Act of Parliament and was maintained by contributions from miners and mine owners and a Government subsidy. The Attorney-General expressed the opinion that the payments were not payments from a friendly society, trade union, provident society or other society or association. No other reasons were given.

The Secretary to the Attorney-General's Department advised, on 3 May 1911⁽⁸⁾ that a charitable allowance paid by a Masonic Lodge comes within the exception as a Masonic Lodge is a society or association within the meaning of paragraph (b) of the definition of 'Income'.

On 31 July 1911⁽⁹⁾ the Secretary advised that the Methodist Church is a religious society within the meaning of the paragraph and that an annuity from the Methodist Supernumerary and Ministers' Widows' Fund was a payment within the paragraph. There is nothing in the opinion to show how the Fund was maintained.

On 24 November 1913 ⁽¹⁰⁾ the Secretary advised that the purport of the Tasmanian State Teachers Superannuation Fund Act 1904 was to create an association for the purpose of the Fund and that as the Fund was created for the payment of annuities during ill health, infirmity or old age, an annuity paid therefrom to a member was a payment within the paragraph.

In a later opinion in connection with the same Fund (12 December 1913⁽¹¹⁾) the Secretary distinguishes between contributions to a fund such as that in question and the deposit of money in the Savings Bank. In the former case the contributions cease to be the property of the contributor but entitle him to benefits from the association, in the latter case what he puts in the Bank remains his own property.

On 20 May 1914⁽¹²⁾ the Secretary advised that the Colonial Sugar Refining Company Employees' Fund, maintained by compulsory contributions from employees and by contributions from the Company, was an association within the meaning of the Act and that payments from the Fund come within the exception.

On 9 July 1914⁽¹³⁾, however, the Attorney-General (Sir William Irvine) disagreed with that opinion in the following terms:

... 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.

He also stated that his opinion as regards the Colonial Sugar Refining Company Employees' Fund would also affect the opinion of 24 November 1913, as to the Tasmanian State Teachers' Superannuation Fund which he considered indistinguishable from the Colonial Sugar Refining case.

The Commercial Travellers' Association Annuity Fund next came under notice (22 December 1914⁽¹⁴⁾). The object of the Fund is to provide annuities for aged or incapacitated commercial travellers who have been members of the Association for at least five years, or their widows.

The Fund is maintained by donations, subscriptions, bequests and moneys voted by the Association for the purposes of the Fund. Annuitants have no legal claim on the Fund and need not have subscribed anything thereto. The opinion was expressed by the Secretary that the annuities are not on the same footing as benefits from a voluntary association, but are in the nature of gratuities and are not payments within the meaning of the paragraph.

In advising that the Sydney City Mission is not a society or association within the meaning of the Act and that gratuitous payments by the Mission are not payments within the meaning of paragraph (b) of the definition of 'Income' the Solicitor-General said (23 March 1920⁽¹⁵⁾):

In order to satisfy the requirements of paragraph (b) the payments should be made by a society or association to one of its members or his dependants and the benefits so conferred should be consistent with the objects of the body and in satisfaction of the rights of the member.

On 21 September 1920⁽¹⁶⁾ the Solicitor-General advised that a payment to one of their Ministers by the Australasian Union Conference of Seventh-day Adventists was not a payment within the meaning of the paragraph. The payment was of a gratuitous nature and the recipient had no legal claim on the Conference. The funds from which the payment was made were provided from the general funds of the Conference and not from subscriptions paid by Ministers to establish a sustentation board.

In the above series of opinions, some of the principles by which the several cases were tested do not appear to be altogether satisfactory, and I think it advisable to state the principles which in my view ought to be applied.

The general intention of the exception set out in paragraph (b) of sub-section (1) of section 4 of the Act is that no deduction should be made from old-age pension by reason of benefits paid to the pensioner by 'provident' or other societies; the principle apparently being that such payments have been earned by contributions or sacrifices made by the pensioner or by some person on whom the pensioner was dependent and that it was not desirable to discourage such 'provident' arrangements by deducting the amount of the benefits from the pension.

I think that the words 'other society or association' must be read as ejusdem generis with 'provident societies', as meaning a body of persons who have combined together for purposes which include the payment of benefits to members or their dependants, during illness, or infirmity, or old age.

I think that the ejusdem generis rule can be construed somewhat broadly, in view of the general intention of the provision; but that it is essential that there should be an 'association'-i.e. a body of persons who have combined for a common purpose; and that such common purpose should include something in the general nature of 'provident' benefits.

I do not think that the purely voluntary basis of the association is a conclusive test, or in other words that the benefit of the provision is necessarily excluded because membership of the association is made compulsory as a condition of employment, or by statute.

Nor do I think that the benefit of the provision is necessarily excluded by the fact that contributions towards the funds of the association are made by others than the members-e.g. by employers.

But there must be a real association-a combination of persons for a common purpose-and the mere fact that persons subscribe to a common fund and are entitled to benefits from it is not enough.

Having thus reviewed the previous opinions and stated what appear to me to be the principles applicable to the construction of the statutory provision, I pass to the particular matter on which I am asked to advise.

The question to be determined is whether the allowances received by Mr C. during his incapacity out of the Australian Clergy Provident Fund and the Superannuation Fund are received from associations within the meaning of paragraph (b) of the definition of 'Income' in section 4 of the Invalid and Old-age Pensions Act.

The Australian Clergy Provident Fund is established by a Determination VII of General Synod of the Diocese in Australia and Tasmania, Session 1905, and is maintained by annual contributions from the Dioceses which accept the Determination. No other moneys appear to be paid into the Fund.

The management and control of the Fund is vested in a central Board of Directors, of which the Chairman is a bishop elected by General Synod, and the other members are nominated by Diocesan Committees or Councils and elected by a ballot of the subscribers. The property of the Fund is vested in trustees elected by the Board.

All bishops and clergymen for the first time installed or licensed or duly authorised to officiate in any diocese in Australia etc. subsequent to the acceptance of the Determination by the Diocese must be subscribers to the Fund (see clause 12 of Determination). Any bishop or clergyman installed or licensed etc. before the acceptance of the Determination in his diocese may be, but is not compelled, to be a subscriber. Subscribers must make the prescribed annual contributions to the Fund.

Subscribers to the Fund are, subject to certain conditions, entitled to receive allowances from the Fund during old age or incapacity.

The Superannuation Act 1899 of the Diocese of Ballarat establishes a Fund for providing allowances to clerks who subscribe thereto.

The Fund is maintained by outside subscriptions and donations in addition to the contributions of the clerks. Contributions by clerks are compulsory for all those entering the Diocese on or after 2 April 1892.

The Fund is managed by a Board elected by the Church Assembly.

Contributors are entitled to allowances out of the Fund during mental or physical incapacity.

In my opinion the establishment of neither of these Funds has created a 'society or association' within the meaning of section 4(1) (b) of the Act.

In the case of the Ballarat Superannuation Fund, the subscribers to the Fund are subscribers and beneficiaries, and nothing more.

In the case of the Australian Clergy Provident Fund, the subscribers are in addition given the right to ballot for the election of members of the board of management.

But in neither case is there any act of combination by subscribers to constitute them members of an association. They simply become (voluntarily or compulsorily) subscribers to a Fund, and thereby each of them acquire certain rights in regard to the Fund.

I therefore think that payments from these Funds do not come within the terms of section 4(1) (b).

[Vol. 19, p. 314]

(1) Opinion [Vol.9, p. 101] not published in Vol.1.

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

(3) Opinion [Vol.13, p. 154] not published.

(4) Opinion No. 1005.

(5) Opinion No. 1174.

(6) Opinion [Vol.7, p. 189] not published in Vol.1.

(7) Opinion [Vol.7, p. 225] not published in Vol.1.

(8) Opinion [Vol.8, p. 438] not published in Vol.1.

(9) See endnote (1).

(10) Opinion [Vol.11, p. 483] not published in Vol.1.

(11) Opinion [Vol.12, p. 28] not published in Vol.1.

(12) Opinion [Vol.12, p. 271] not published in Vol.1.

(13) See endnote (2).

(14) See endnote (3).

(15) Opinion No. 972.

(16) Opinion No. 1005.