On 6 May 1982, I ordered, pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975, that the decision cancelling the supporting parents' benefit previously payable to the applicant, Pamela Joy Dart, should be stayed as from that day. I advised the parties that I would set out in writing the reasons for my decision.

Section 41(2) of the Administrative Appeals Tribunal Act reads :

"41.(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the 'relevant proceeding'), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing, and determination of the application for review."

Details of the relevant decision are not before me as the respondent has yet to provide his statement of reasons and relevant documents under s37 of the Administrative Appeals Tribunal Act. "However, as the matter was put to me a decision was made by an appropriate officer of the Department cancelling the supporting parents' benefit previously payable to the applicant. Thereafter, the applicant appealed. The applicant did not receive notification from a Social Security Appeals Tribunal of the date of the hearing of her appeal and she therefore did not appear before such Tribunal or present a case to it. On 13 April 1982, a Social Security Appeals Tribunal advised the applicant that it had considered her appeal and had recommended to the Director-General that her appeal be dismissed. Subsequently, the decision cancelling her benefit was affirmed by the Director-General of Social Services or a Delegate.

In the circumstances, I have jurisdiction to make an order under s41(2) of the Administrative Appeals Tribunal Act. In Re Gee and Director-General of Social Services, delivered 27 March 1981, Davies J, Cusack and Prowse considered the provisions conferring jurisdiction upon the Administrative Appeals Tribunal and expressed the view that, although in form jurisdiction was conferred to review the decision of the Director-General or his Delegate made after a recommendation of a Social Security Appeals Tribunal, nevertheless, the review comprehended as a matter of substance a review of the primary decision which had been considered on the appeal by the Social Security Appeals Tribunal and by the Director-General or his Delegate. I adopt the views expressed in that decision and in particular the view:

"In our view, therefore, the decision which is the subject of the review is the operative decision which affects the claimant's or pensioner's rights. The Administrative Appeals Tribunal is not involved in an exercise of reviewing on the merits the Director-General's affirmation or variation of that decision. The regulations may give that particular form to the review, but the essence of the review in relation to decisions made under the Social Services Act is the same as it is in other jurisdictions conferred upon the Administrative Appeals Tribunal, namely, whether the decision which has affected the rights of the applicant was the correct or preferable decision, not whether a decision which reconsidered such decision was the correct or preferable one. As Brennan j said in relation to a review by a Taxation Board of Review, the expression used for the conferral of the authority to review is 'form only'."

A similar view was expressed in RC and Director-General of Social Services, delivered 16 July 1981 by Davies J, Smith and McLelland. In that case, the Tribunal considered that there was jurisdiction to make an order under s41(2) staying the operation of a decision suspending payment to the applicant of a widow's pension. In this review, I adopt the reasoning expressed in those cases.

Nevertheless, it was put to me by Mr M Cunliffe, who appeared for the respondent, that a decision staying cancellation of a supporting parents' benefit would be ineffective because the mere staying of the decision to cancel a benefit would not, he said, confer upon the applicant a right to a benefit of any specific amount. Mr Cunliffe submitted that there would have to be incidental decisions made calculating a rate of benefit and that those decisions could not be made because, he said, the Director-General had no power to pay a supporting parents' benefit for an interim purpose or during an interim period.

However, Mr Cunliffe's argument confuses what is sometimes done in practice in the Department of Social Security with what the Act requires. A pension or benefit is not payable unless there is a decision. Section 13 provides that the Director-General shall, subject to the Act, determine claims. A supporting parents' benefit becomes payable when a claim for the benefit is determined in favour of the claimant. The determination should include a determination of the rate of benefit payable. As was pointed out in Re Gee and Director-General of Social Services, delivered 25 November 1981, the provision that a pension shall be reduced by one-half of the amount by which the rate of the income of the recipient exceeds $1,040 per annum does not operate automatically. It is a provision which is to be taken into account in the determination of the rate of benefit payable. Once determined, a rate of benefit may be changed from time to time by decisions made under ss 75 and 83AAG of the Social Services Act 1947, that is to say, decisions made on a review of the benefit. But in such instances, the rate of benefit payable will be, or should be, fixed by the new decision.

For the purpose of the present application, I assume, in the absence of evidence to the contrary, that the provisions of the Act were complied with and that, prior to the decision cancelling the benefit to the applicant, there was on foot a decision that a benefit of a specific amount be paid to the applicant in a specific manner. Therefore, suspension of the decision to cancel that benefit will restore the prior decision for the payment of the benefit. No further decision need be made.

I do not, however, regard it as inconsistent with the Social Services Act or as inconsistent with a stay order made under s41(2) of the Administrative Appeals Tribunal Act that the Director-General should make any adjustments to the rate of the benefit which may seem to him to be appropriate having regard to the intent and effect of the s41(2) order, namely, that the cancellation of the benefit be stayed. Such adjustments may be made so as to implement more effectively the s41(2) order. If the Director-General chooses to make such adjustments he may do so. If he chooses not to do so, the decision which was affected by the cancellation will, being restored, operate according to its terms.

There is before me an application for review signed by the applicant which sets out relevant facts in considerable detail. The applicant's benefit was cancelled for the reason that she was thought to be living with a man as his wife on a bona fide domestic basis although not legally married to him. The applicant alleges that, although she is a live-in housekeeper for a Mr. Densley, she is not living with him as his wife. The facts put forward by the applicant provide a prima facie case for the restoration of the benefit in the sense that, if the facts asserted by the applicant be correct, then the decision will be that she is not a person who is living with a man as his wife on a bona fide domestic basis. It is not convenient or appropriate that on this application for a stay there should be any preliminary trial of the issues that will ultimately have to be considered by the Tribunal. For the present, it is sufficient that, if the facts which are put to me are established at the hearing, the applicant will succeed in the review.

I take into account the circumstance that other facts have been considered by the Director-General or his Delegate and that a contrary view has been formed. However, in the present case, the applicant did not have the opportunity of appearing herself before the Social Security Appeals Tribunal and therefore I am not considering a case where an applicant has had a full hearing.

I turn now to matters of hardship and convenience. The applicant has no income other than her supporting parents' benefit. She has two children to maintain and continuing financial obligations to meet. She has only $11 in the bank and no assets which will meet her needs. It is obviously a considerable hardship to her, if the facts which she asserts are correct, that she should be without support until a decision can be made in this review.

On the other hand, I appreciate that, if a benefit is now paid to the applicant and it is subsequently decided that she is living in a bona fide domestic relationship with Mr Densley as his wife, then neither s140(1) nor s140(2) may apply to permit the subsequent recovery of the benefit from the applicant. And I consider that it would be inappropriate for me to require the applicant to undertake to repay the benefit should she be unsuccessful. The benefit will be spent on the sustenance of herself and her children. Thus, the payment will impose a considerable burden upon the Commonwealth if the applicant is ultimately unsuccessful.

However, a stay order is made only if it is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. A stay order may be appropriate so that the hearing can take place at a suitable time after there has been adequate preparation for the hearing by both parties. RC and Director-General of Social Services, cited above, was such a case and indeed, in that matter, the decision in the review was not made until a very considerable time after the application for review had first been lodged. During the course of the review there was an appeal to the Federal Court of Australia and the hearing itself took a considerable time. It would not have been practicable to deal with that matter in an appropriate fashion had not a stay order been made. In the present case, the hearing cannot be fixed until the respondent has delivered his reasons and relevant documents under s37 of the Administrative Appeals Tribunal Act and, even then, it is desirable that there be a preliminary conference between the parties so that the matter .can be resolved between the if possible and, if not, so that each prepares adequately for the hearing. I take into account also the fact that the applicant is resident in Warrnambool and that an early hearing cannot be fixed with the same ease as if the applicant and witnesses were all in a capital city.

On the whole, I am of the opinion that a stay order is appropriate in this case to secure the effectiveness of the hearing and the determination of the review and I think that the balance of hardship and convenience favours the making of the order.

For these reasons, it is in my opinion appropriate that an order be made staying the relevant decision until the determination of this review or further order. Liberty to apply should be reserved.