3

8.—19 c

No. 4. Defence Office, Wellington, N.Z., 22nd June, 1901. The Hon. the Minister of Defence. The granting of a pension to Mrs. Francis, widow of the late Lieut.-Colonel Francis, was decided by Cabinet on the 13th ultimo, and the necessary documents were prepared and sent to Audit, and that Department is of opinion that Mrs. Francis is barred from obtaining a pension on the grounds that he was first certified to be ill, according to section 7 of "The Military Pensions Act, 1866," more than six months before the date of his death. I submit that the date of being " first certified to be ill" should be that on which Lieut.Colonel Francis was ordered to proceed to England upon the advice of the Medical Board. The matter is a very important one, and I beg to recommend that it should be submitted to the Solicitor-General for his opinion. Arthur P. Douglas. 25/6/01. The Solicitor-General. —Please advise. B. J. S. 3/7/01.

No. 5. Opinion. Ec " The Military Pensions Act, 1866," and Claim of Mrs. Francis. The Act is very loosely drawn, but on the whole I am of opinion that the expression " certified " in section 7, (b), means certified by a Medical Board appointed under the Act. Section 4 provides for the appointment of Medical Boards by the Governor " for the purpose of examining every officer and man who is an applicant for a pension or gratuity." The section further directs the Board "to report upon his case, which report with a certificate of examination must be signed by each member of the Board in every instance before any pension or gratuity is granted." The section in terms applies to " every officer and man who is an applicant for a pension or gratuity " ; but, having regard to the scheme and purpose of the Act, I do not think these words confine the functions of the Board to cases where the officer or man is himself personally an applicant. Section 4 is one of a group of five introductory sections without any cross-heading. Then comes section 6 under the cross-heading " Pensions and Allowances to Officers and Men " ; then sections 7 to 10 under the cross-heading " Pensions to Widows " ; then sections 11 to 16 under the cross-heading " Special Allowances to Eelatives." I think the introductory group applies to all the subsequent sections and is not confined to cases under section 6. There is as much need for the Board to examine, report, and certify whether, under section 7, (a), a man has " died of his wounds within six months after being wounded," or, under section 7, (b), whether he has " died from illness brought on by exposure incident to active operations in the field before an enemy within six months after his being first certified to be ill," as, under section 6, (a), whether he has "received bodily injury fully equal to the loss of a limb." The only difference is that in the last-mentioned case (to which section 4 unquestionably applies) the man is alive and the Board can therefore examine him personally, whereas in the two former cases he is dead, and consequently the Board cannot examine him personally. But it appears to me that on the true construction of the Act the provisions of section 4 apply in every case, and that consequently before any pension or gratuity can be granted the Board must examine and report upon the case and furnish with the report a certificate of examination. It would be competent for the Governor to appoint Boards to act in South Africa ; but if this has not been done, then it is for the Board in New Zealand to act under section 4 by making the examination and giving the report and certificate as therein directed, and the period of six months referred to in section 7, (b), is to be computed from the date on which the Board first certifies that the officer is ill of the illness from which he died. The subsection contemplates that the officer is living on the date when the fact of his being ill is first certified to by the Board, for it speaks of him as dying within six months after that date. But obviously it is not confined to such a case. It would be most harsh and unreasonable to exclude a widow from her pension merely because her husband's illness resulted in his death before the Board could deal with her claim, as, for example, if he were to die on shipboard whilst on his way to New Zealand. The subsection in question must be read subject to section 8, which provides that the widow's pension will in general commence from the date of her husband's death ; but the claim must be established by the production of satisfactory documents in support of it within one year after the death of her husband. The Act does not say how or to whom the claim is to be made, but in my opinion it must be examined and reported on by the Board, and if the husband is dead at the time of the examination the limit of six months will not apply, and it will be a sufficient compliance with subsection (6) if the Board certifies that he died of an illness brought on by the fatigue, privation, and exposure incident to active operations in the field, without any reference to the six months at all. It will be observed that I have not confined myself to the particular case submitted, but have dealt with the construction of the Act generally. I have done this because the questions involved are important, and the cases to be dealt with will no doubt be numerous. I notice from the papers on the file that in his minute of the 2nd April the Commandant states to the Hon. the Defence Minister that I considered Mrs. Francis entitled to a pension