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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Social
Security (International Agreements) Bill
1999
No. ,
1999
(Family and Community
Services)
A Bill for an Act to give effect
to international social security agreements, and for related
purposes
ISBN: 0642
403562
Contents
A Bill for an Act to give effect to international social
security agreements, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Social Security (International
Agreements) Act 1999.
This Act commences on 20 March 2000.
(1) Unless a contrary intention appears, an expression that is used in the
Social Security Act 1991 has the same meaning, when used in this Act, as
in the Social Security Act 1991.
(2) A reference in this Act (other than the reference in section 4) to the
social security law is a reference to this Act and any other Act that forms a
part of the social security law.
(3) A reference in this Act to a provision of the social security law is a
reference to a provision of this Act or any other Act that forms a part of the
social security law.
This Act forms part of the social security law.
(1) For the purposes of a provision of the social security law, an
agreement is a scheduled international social security agreement if:
(a) the agreement is between Australia and another country; and
(b) the agreement relates to reciprocity in social security or
superannuation matters; and
(c) the text of the agreement is set out in a Schedule to this
Act.
(2) The reference in subsection (1) to a scheduled international social
security agreement includes a reference to such an agreement as amended, or
otherwise affected in its operation, by a further agreement or further
agreements between Australia and the other country concerned.
(1) The provisions of a scheduled international social security agreement
have effect despite anything in the social security law.
(2) Subsection (1) applies to a provision of an agreement only in so far
as the provision is in force and affects the operation of the social security
law.
(3) If:
(a) immediately before he or she reaches pension age, a person is
receiving a social security payment (other than age pension) solely because of
the operation of a scheduled international social security agreement;
and
(b) on reaching pension age, the person becomes qualified for age pension
because of the operation of paragraph 43(1)(c) of the Social Security Act
1991;
the age pension is taken to be payable to the person under the agreement
referred to in paragraph (a).
(1) The regulations may make provision amending a Schedule to this Act so
as to set out in the Schedule the text of an agreement (the amending
agreement) that amends, or otherwise affects the operation of, another
agreement set out in the Schedule.
(2) Regulations making provision by virtue of subsection (1) must not come
into operation on a day earlier than the day on which the amending agreement
comes into force for Australia.
(1) The regulations may add to this Act a Schedule setting out the terms
of an agreement between Australia and another country if the agreement relates
to reciprocity in social security or superannuation matters.
(2) Regulations made by virtue of subsection (1) must not come into
operation on a day earlier than the day on which the agreement concerned comes
into operation for Australia.
The regulations may repeal a Schedule to this Act.
(1) If:
(a) a scheduled international social security agreement authorises a
person who is outside Australia to lodge a claim for parenting payment;
and
(b) the person, while outside Australia, lodges a claim for parenting
payment; and
(c) the person is not a member of a couple; and
(d) the person would qualify for parenting payment but for the operation
of:
(i) paragraph 500(1)(b) or (c) of the Social Security Act 1991;
or
(ii) subparagraph 500(1)(d)(ii) of that Act to the extent that it requires
a person to have been in Australia for the period specified in the subparagraph;
or
(iii) section 500F, 500G or 500H of that Act;
then:
(e) the provisions referred to in paragraph (d) do not apply to the
person; and
(f) if parenting payment is payable to the person, it is taken to be
payable to the person under the scheduled international social security
agreement.
(2) If:
(a) a person who is in Australia lodges a claim for parenting payment;
and
(b) the person is not a member of a couple; and
(c) the person would qualify for parenting payment under a scheduled
international social security agreement but for the operation of subparagraph
500(1)(d)(ii) of the Social Security Act 1991 to the extent it requires a
person to have been in Australia for the period specified in the
subparagraph;
then:
(d) that requirement of subparagraph 500(1)(d)(ii) does not apply to the
person; and
(e) if parenting payment is payable to the person, it is taken to be
payable to the person under the scheduled international social security
agreement.
A social security payment payable under a scheduled international social
security agreement is not payable to a person for a period when the person is
outside Australia unless the agreement provides that the pension or allowance is
payable outside Australia.
(1) If:
(a) a social security payment is payable to a person under a scheduled
international social security agreement; and
(b) the person is outside Australia; and
(c) the agreement provides for the rate of the social security payment to
be determined according to the law of Australia;
the rate of the social security payment is the person’s international
agreement portability rate worked out in accordance with Part 3.
(2) A reference in the agreement to a person’s period of residence
in Australia is to be taken to be a reference to the period of the
person’s Australian working life residence for the purposes of this
Act.
A person’s international agreement portability rate is worked out
as follows:
(a) the period of the person’s Australian working life residence in
Australia (the residence period) is worked out according to
Division 2;
(b) the person’s residence factor is worked out according to
Division 3;
(c) the person’s notional agreement pension rate is worked out by
calculating the rate that would be the person’s social security payment
rate if this section did not apply to the person but taking into account section
14;
(d) if the person’s notional agreement pension rate is nil, the
international agreement portability rate is also nil;
(e) if the person’s notional agreement pension rate is not nil, the
rate at which family allowance would be payable to the person if the person were
in Australia (the notional family allowance rate) is worked out by
adding:
(i) the standard family allowance rate; and
(ii) the guardian allowance;
and subtracting the minimum standard family allowance rate;
(f) the person’s total notional rate is worked out by adding the
person’s notional agreement pension rate and the person’s notional
family allowance rate;
(g) the person’s international agreement portability rate is the
result obtained by multiplying the person’s total notional rate by the
person’s residence factor.
(1) If a scheduled international social security agreement provides that
certain amounts are to be treated as income of a person—those amounts are
to be treated as income of the person for the purposes of this Part.
(2) If a scheduled international social security agreement provides that
certain amounts are to be treated as not being income of a person—those
amounts are to be treated as not being income of the person for the purposes of
this Part.
For the purposes of this Division, a person’s working life is the
period beginning when the person turns 16 and ending when the person reaches
pension age.
Subject to sections 17 to 22, a person’s period of Australian
working life residence at a particular time is the number of months in the
period, or the aggregate of the periods, during the person’s working life
during which the person has, up to that time, been an Australian
resident.
(1) If a person’s period of Australian working life residence would,
apart from this subsection, be a number of whole months, the period is to be
increased by one month.
(2) If a person’s period of Australian working life residence would,
apart from this subsection, be a number of whole months and a day or days, the
period is to be increased so that it is equal to the number of months plus one
month.
If:
(a) a person is receiving an age or disability support pension;
and
(b) the person is a member of a couple; and
(c) the person’s partner is receiving an age or disability support
pension; and
(d) the partner’s period of Australian working life residence is
longer than the period that would be the person’s period of Australian
working life residence under section 17;
the person’s period of Australian working life residence is to be
equal to the partner’s period of Australian working life
residence.
If:
(a) a person is receiving an age or disability support pension;
and
(b) the person is a member of a couple; and
(c) the person ceases to be a member of a couple; and
(d) immediately before the person ceases to be a member of a
couple:
(i) the person was receiving an age or disability support pension;
and
(ii) the partner was receiving an age or disability support pension;
and
(e) the partner’s period of Australian working life residence
(immediately before the person ceases to be a member of a couple) is longer than
the period that would now be the person’s period of Australian working
life residence under section 17;
the person’s period of Australian working life residence is to be
equal to the partner’s period of Australian working life residence
(immediately before the person ceases to be a member of a couple).
If a person is receiving a wife pension, the person’s period of
Australian working life residence is equal to the period of Australian working
life residence of the person’s partner.
If:
(a) a person is receiving a pension PP (single), bereavement allowance or
widow B pension; and
(b) the person became qualified for the pension or allowance because the
person’s former partner died; and
(c) the partner’s period of Australian working life residence
(immediately before the partner’s death) is longer than the period that
would now be the person’s period of Australian working life residence
under section 17;
the person’s period of Australian working life residence is to be
equal to the partner’s period of Australian working life residence
(immediately before the partner’s death).
If a person is receiving a carer payment, the person’s period of
Australian working life residence is equal to the Australian working life
residence of the person for whom the person is providing care.
If a person’s period of Australian working life residence is 300
months (25 years) or more, the person’s residence factor is 1.
If a person’s period of Australian working life residence is less
than 300 months (25 years), the person’s residence factor is the fraction
represented by:
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient for carrying out or giving effect to this
Act.
Note: See section 5.
PART A
AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF
AUSTRALIA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND
The Government of Australia and the Government of the United Kingdom of
Great Britain and Northern Ireland,
Wishing to strengthen the existing
friendly relations between the two countries;
Having established
reciprocity in the field of social security by means of an Agreement signed by
the Parties at Canberra on 29 January 1958, which was amended by a further
Agreement signed at Canberra on 16 August 1962 and by other Agreements set out
in Exchanges of Notes at Canberra on 6 March 1975 and at London on 29 and 31
December 1986;
Wishing to consolidate the above Agreements and their
extensions and modifications into a single document; and
Wishing to
extend and modify the scope of that reciprocity and to take account of changes
in their legislation;
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. For the purpose of this Agreement, unless the context otherwise
requires:
“benefit” means pension, allowance or benefit
payable under the legislation of one (or the other) Party and includes any
increase payable for a dependant;
“competent authority”
means, in relation to the territory of the United Kingdom, the Secretary of
State for Social Security for Great Britain, the Department of Health and Social
Services for Northern Ireland, the Department of Health and Social Security of
the Isle of Man, the Social Security Committee of the States of the Island of
Jersey or the States of Guernsey Insurance Authority, as the case may require,
and, in relation to Australia the Secretary to the Department of Social
Security;
“competent institution” means the institution from
which the person concerned is entitled to receive benefit or would be entitled
to receive benefit if he were resident in the territory of the Party where that
institution is situated;
“contribution”, in relation to the
legislation of the United Kingdom, does not include a reduced rate contribution
payable by a married woman or a widow, or a graduated contribution within the
meaning of that legislation;
“employed person” means a
person who, in the applicable legislation, comes within the definition of an
employed earner or of an employed person or is treated as such and the words
“person is employed” shall be construed
accordingly;
“employment” means employment as an employed
person and the words “employ”, “employed” or
“employer” shall be construed accordingly;
“equivalent
period” means, in relation to the United Kingdom, a period for which
contributions appropriate to the benefit in question have been credited under
the legislation of that Party;
“family allowance”, in
relation to the United Kingdom, includes child benefit payable under the
legislation of the United Kingdom, and, in relation to Australia means family
allowance payable under the legislation of Australia;
“former
Agreement” means the Agreement on Social Security signed at Canberra on 29
January 1958, on behalf of the Parties, as amended by the Agreement on Social
Security signed at Canberra on 16 August 1962 and by the Agreements set out in
the Exchanges of Notes at Canberra on 6 March 1975 and at London on 29 and 31
December 1986;
“full standard rate” means, in relation to
any benefit payable under the legislation of the United Kingdom, the rate at
which the beneficiary would be qualified to receive that benefit if the relevant
contribution conditions were fully satisfied;
“gainfully
occupied” means employed or self-employed;
“Guernsey”
means the Islands of Guernsey, Alderney, Herm and Jethou;
“income
support” means income support payable under the legislation of Great
Britain and Northern Ireland and supplementary benefit payable under the
legislation of the Isle of Man;
“legislation” means the
legislation specified in Article 2 which, in relation to the United Kingdom, is
in force in any part of the territory of the United Kingdom and, in relation to
Australia, is in force in Australia;
“means test” means any
provision of the legislation of Australia which affects the payment or rate of a
benefit on account of income or property;
“qualified to
receive” means, in relation to the United Kingdom, entitled to receive
subject to any disqualification or any provision about claiming, hospital
treatment or overlapping benefits which may be
appropriate;
“retirement pension” means retirement pension
or old age pension payable under the legislation of the United Kingdom and
includes a contributory old age pension under that legislation and any graduated
retirement benefit constituted by an increase in the weekly rate of retirement
pension under that legislation, but excludes additional (earnings-related)
pension payable under that legislation;
“self-employed
person” means a person who, in the applicable legislation, comes within
the definition of a self-employed earner or of a self-employed person or is
treated as such, and the words “person is self-employed” shall be
construed accordingly;
“spouse carer’s pension” means
a carer’s pension payable to a husband under the legislation of
Australia;
“territory” means in relation to the United
Kingdom, Great Britain, Northern Ireland and also the Isle of Man, the Island of
Jersey and Guernsey;
“widow” means, in relation to
Australia, a de jure widow but does not include a woman who is the de facto
spouse of a man;
“widow’s benefit” means, in relation
to the United Kingdom, widow’s allowance, widow’s payment, widowed
mother’s allowance (including any graduated retirement benefit constituted
by an increase in the weekly rate of widowed mother’s allowance), widowed
father’s allowance or widow’s pension under the legislation of any
part of the United Kingdom.
2. In the application by a Party of this
Agreement in relation to a person, any term not defined in this Article shall,
unless the context otherwise requires, have the meaning ascribed to it in the
legislation of the Parties or, in the event of a conflict of meaning, by
whichever of the legislation of the Parties is the more applicable to the
circumstances of that person.
3. Any reference in this Agreement to
“Article” means an Article of this Agreement, and any reference to a
“paragraph” is a reference to a paragraph of the Article in which
the reference is made, unless it is stated to the contrary.
ARTICLE 2
Scope of legislation
1. The provisions of this Agreement shall apply:
(a) in relation
to the territory of the United Kingdom, to:
(i) the Social Security Acts
1975 to 1989 and the Social Security (Northern Ireland) Acts 1975 to
1989;
(ii) the Social Security Acts 1975 to 1989 (Acts of Parliament) as
those Acts apply to the Isle of Man by virtue of Orders made, or having effect
as if made, under the Social Security Act 1982 (an Act of Tynwald);
(iii) the
Social Security (Jersey) Law, 1974;
(iv) the Social Insurance (Guernsey) Law,
1978;
(v) the Child Benefit Act 1975, the Child Benefit (Northern Ireland)
Order 1975 and the Child Benefit Act 1975 (an Act of Parliament) as that Act
applies to the Isle of Man by virtue of Orders made, or having effect as if
made, under the Social Security Act 1982 (an Act of Tynwald); the Family
Allowances (Jersey) Law, 1972 and the Family Allowances (Guernsey) Law,
1950;
and to the legislation which was repealed or consolidated by those
Acts, Laws or Orders or repealed by legislation consolidated by them;
and
(b) in relation to Australia, to the Social Security Act
1947.
2. Subject to the provisions of paragraphs (3) and (4) this
Agreement shall apply also to any laws, orders and regulations which supersede,
replace, amend, supplement or consolidate the legislation specified in paragraph
(1).
3. This Agreement shall not affect any benefits payable under the
legislation of either Party except in the manner set out in this
Agreement.
4. This Agreement shall not apply to legislation on social
security of the Institutions of the European Communities or to any convention or
agreement on social security which either Party has concluded with a third party
or to any laws, orders or regulations which amend the legislation specified in
paragraph (1) for the purpose of giving effect to such a convention or agreement
but shall not prevent either Party from taking into account under its
legislation the provisions of any other convention or agreement which that Party
has concluded with a third party.
5. Subject to the provisions of
paragraph (2), this Agreement shall apply, unless the Parties agree otherwise,
only to benefits described in the legislation specified in paragraph (1) at the
date of coming into force of this Agreement and for which specific provision is
made in this Agreement.
PART II—RETIREMENT PENSIONS, AGE PENSIONS AND
BENEFITS FOR WIDOWS
ARTICLE 3
Retirement pensions
1. For the purpose of determining entitlement to retirement pension
under the legislation of any part of the territory of the United Kingdom, a
person who is permanently resident in that part of the territory shall be
treated as if he or she, or, in the case of a claim made by a married woman or a
widow by virtue of her husband’s insurance, her husband, had paid
contributions under the legislation of that part of the territory for any period
during which that person or that person’s husband, as the case may
be:
(a) was resident in Australia and had attained the age of sixteen
years; and
(b) being a woman had not attained the age of sixty years, or
sixty-five years in the case of Guernsey or Jersey, or being a man had not
attained the age of sixty-five years.
2. Where:
(a) a woman
claiming retirement pension by virtue of her own insurance had been, but is not
at the time of the claim, married, and chooses to have her former
husband’s contributions taken into account for the purpose of her claim;
and
(b) her former husband had been resident in Australia for any period
between the ages of sixteen years and sixty-five years;
her former
husband shall be treated, for the purpose of her claim, as if he had paid
contributions under the legislation of the territory of the United Kingdom for
any period referred to in sub-paragraph (b).
3. Where a person who is
permanently resident in any part of the territory of the United Kingdom was
receiving an age pension, otherwise than by virtue of this Agreement or the
former Agreement, at the time when he or she was last in Australia, and was over
pensionable age at that time, he or she shall, if not qualified by virtue of the
preceding paragraphs of this Article to receive retirement pension at the full
standard rate under the legislation of that part of the territory of the United
Kingdom, be treated as if he or she satisfied the contribution conditions for
such a pension.
4. Any pension which is awarded by virtue of this Article
shall continue to be payable if the pensioner ceases to be permanently resident
in one part of the territory of the United Kingdom and becomes permanently
resident in another part of the territory of the United Kingdom, and the
competent authority of the latter part of the territory of the United Kingdom
shall not determine entitlement under this Article.
5. Any pension which
is awarded by virtue of this Article shall cease to be payable if the pensioner
ceases to be permanently resident in the territory of the United
Kingdom.
6. Where a person is entitled to receive a benefit by virtue of
the provisions of this Article, the rate of benefit which he or she would
otherwise be entitled to receive, but for this paragraph, shall be reduced by
the amount of benefit which is payable by virtue of the legislation of Australia
in accordance with the provisions of Article 8(7).
ARTICLE 4
Age pensions
1. Where a person is qualified to receive an age pension under the
legislation of Australia otherwise than by virtue of the provisions of this
Agreement, or the former Agreement, that pension shall be payable and the
provisions of this Article shall not apply under that legislation.
2. For
the purpose of any claim by a person to receive an age pension under the
legislation of Australia, that person shall be treated as an Australian resident
for any period prior to that person’s last arrival in Australia for
which:
(a) that person; or
(b) if that person is a woman who is or has
been married, her husband,
paid contributions, or had earnings or
contributions credited under the legislation of the United
Kingdom.
3. For the purpose of applying paragraph (2), any period during
which the person (being a woman) and her husband both paid contributions or had
earnings or contributions credited to them shall be counted only
once.
4. For the purpose of applying paragraph (2), a period when the
person or, if the person is a woman who is or has been married, her husband paid
contributions or had earnings or contributions credited, which coincided with a
period in which that person was an Australian resident, shall be counted only
once.
5. A person who receives from Australia a wife’s pension or a
spouse carer’s pension by virtue of the fact that the spouse of that
person receives an age pension by virtue of this Article, shall, for the purpose
of this Agreement, be deemed to receive that pension by virtue of this
Agreement.
ARTICLE 5
UK Benefits for Widows
1. For the purpose of determining entitlement to widow’s benefit
under the legislation of any part of the territory of the United Kingdom, a
widow who is permanently resident in that part of the territory shall be treated
as if her husband had paid contributions under the legislation of that part of
the territory for any period during which he was resident in Australia between
the ages of sixteen years and sixty-five years.
2. Where a widow who is
permanently resident in any part of the territory of the United Kingdom was
receiving a pension payable to widows under the legislation of Australia,
otherwise than by virtue of this Agreement or the former Agreement, at the time
when she was last in Australia, and is not qualified by virtue of paragraph (1)
to receive widow’s allowance, widowed mother’s allowance or
widow’s pension at the full standard rate under the legislation of that
part of the territory of the United Kingdom where she is permanently resident,
she shall be qualified under that legislation to receive at the full standard
rate:
(a) widow’s allowance if she had been receiving a pension
payable to widows under the legislation of Australia for less than one year in
the case of Jersey and 26 weeks in the case of Guernsey; or
(b) widowed
mother’s allowance if she is not qualified to receive widow’s
allowance or if she has ceased to be qualified to receive widow’s
allowance, and if she has a child in her family or if she has residing with her
a person under the age of nineteen years or sixteen years in the case of Jersey
or eighteen years in the case of Guernsey, and the pension payable to widows
which she was receiving at the time when she was last in Australia was being
paid to her on the basis that that child or person was her dependent child;
or
(c) widow’s pension or retirement pension, as the case may require,
if she is not qualified to receive widow’s allowance, or widowed
mother’s allowance but had reached the age of fifty-five years or forty
years where that widow is permanently resident in Jersey or Guernsey, either
before she last left Australia or when she ceased to be qualified to receive
widow’s allowance or widowed mother’s allowance.
3. Any
pension which is awarded by virtue of this Article shall continue to be payable
if the pensioner ceases to be permanently resident in one part of the territory
of the United Kingdom, and becomes permanently resident in another part of the
territory of the United Kingdom, and the competent authority of the latter part
of the territory of the United Kingdom shall not determine entitlement under
this Article.
4. Any widow’s benefit which is awarded by virtue of
this Article shall cease to be payable if the widow ceases to be permanently
resident in the territory of the United Kingdom.
5. Where a person is
entitled to receive a benefit by virtue of the provisions of this Article, the
rate of benefit which she would otherwise be entitled to receive, but for this
paragraph, shall be reduced by the amount of benefit which is payable by virtue
of the legislation of Australia in accordance with the provisions of Article
8(7).
6. The provisions contained in this Article shall apply, in an
equal and opposite way to widowed father’s allowance under the legislation
of Jersey.
7. In the case of widows’ benefit payable under the
legislation of Jersey, contribution credits shall only be awarded to widows
permanently resident in Jersey.
8. In the case of widow’s benefit
payable under the legislation of Guernsey:
(a) Class 3 contributions
shall be credited only to a widow who is permanently resident in
Guernsey;
(b) where Class 3 contributions have not been credited to a widow
under the provisions of sub-paragraph (a) above and the rate of old age pension
which would be payable is less than the rate of widow’s benefit payable
immediately before pension age is attained the rate of old age pension shall be
adjusted so that it is equal to the rate of widow’s benefit which was
payable, or which would be payable, if widow’s benefit were payable beyond
pension age.
ARTICLE 6
UK Widowed Mother’s Allowance—Child in
Australia
Where a woman would be qualified under the legislation of the United
Kingdom, otherwise than by virtue of this Agreement or the former Agreement, to
receive widowed mother’s allowance, including an allowance for a child, if
her child were in the territory of the United Kingdom, she shall be qualified to
receive that allowance for any period during which the child is in
Australia.
ARTICLE 7
Australian Benefits for Widows
1. Where a person is qualified to receive a pension payable to widows
under the legislation of Australia otherwise than by virtue of the provisions of
this Agreement or the former Agreement, that pension shall be payable and the
provisions of this Article shall not apply under that legislation.
2. For
the purpose of any claim to receive a pension payable to widows under the
legislation of Australia, a widow shall be treated as if she had been an
Australian resident during any period for which her husband (or her last husband
if more than one) had paid contributions or had had earnings or contributions
credited to him under the legislation of the United Kingdom.
3. For the
purpose of applying paragraph (2), any period when the widow was an Australian
resident which coincided with a period when her husband (or her last husband if
more than one) had paid contributions or had earnings or contributions credited
to him shall be counted only once.
ARTICLE 8
Conversion of Australian Residence
1. For the purpose of calculating entitlement under the legislation of
Great Britain, Northern Ireland or the Isle of Man, to any benefit in accordance
with Articles 3 and 5, periods of residence in Australia before 6 April 1975
shall be treated as if they had been contribution or equivalent periods
completed under that legislation.
2. For the purpose of calculating
entitlement under the legislation of Great Britain, Northern Ireland or the Isle
of Man, to any benefit in accordance with Articles 3 and 5, periods of residence
in Australia on or after 6 April 1975 shall be treated as if a Class 3
contribution had been paid under that legislation for each week of
residence.
3. Notwithstanding the provisions of paragraph (2), where
residence in Australia during any tax year beginning on or after 6 April 1975 is
for a period of less than the complete tax year then for each week of that
period during which a person satisfies the competent authority that he or she
was employed in Australia:
(a) for each week up to 5 April 1987, a person
shall be treated as having paid a contribution as an employed earner on earnings
equivalent to two-thirds of that year’s upper earnings limit under the
legislation of Great Britain, Northern Ireland or the Isle of Man;
(b) for
each week commencing on or after 6 April 1987, a person shall be treated as
having earnings on which primary Class 1 contributions have been paid under the
legislation of Great Britain, Northern Ireland or the Isle of Man; these
earnings shall be treated as equivalent to two-thirds of that year’s upper
earnings limit.
4. For the purpose of calculating entitlement under the
legislation of Guernsey to any benefit in accordance with Articles 3 and 5,
residence in Australia between the ages of sixteen years and sixty-five years
shall be treated as if a Class 3 contribution had been paid under the
legislation of Guernsey for each week of residence.
5. For the purpose of
calculating entitlement under the legislation of Jersey to any benefit in
accordance with Articles 3 and 5, a person shall be treated:
(a) for each
week completed during residence in Australia between the ages of sixteen years
and sixty-five years, being a week in the relevant quarter, as having paid
contributions which derive a quarterly contribution factor of 0.077 for that
quarter;
(b) for each week completed during residence in Australia between
the ages of sixteen years and sixty-five years, being a week in a relevant year,
as having paid contributions which derive an annual contribution factor of
0.0193 for that year.
6. Where it is not possible to determine accurately
the periods of time in which certain insurance periods were completed under the
legislation of the United Kingdom, such periods shall be treated as if they did
not overlap with periods of residence in Australia, and they shall be taken into
account to the best advantage of the beneficiary.
7. For the purpose of
calculating the rate of any benefit payable to a person under the legislation of
the United Kingdom in accordance with the provisions of Articles 3, 5 or 13, the
amount of any Australian benefit to be taken into account shall be initially the
rate which that person is receiving at the date of entitlement to the United
Kingdom benefit, and thereafter the rate which that person is
receiving:
(a) on the date on which the latest uprating order, made by
the Secretary of State for Social Security under section 63 of the Social
Security Act 1986, came into effect; or
(b) in respect of Guernsey, on the
date on which the latest Ordinance made under Section 19 of the Social Insurance
(Guernsey) Law, 1978 came into effect; or
(c) in respect of Jersey, annually
on 1 October in accordance with Article 13 of the Social Security (Jersey) Law
1974.
8. Notwithstanding the provisions of paragraph (7), where a person
referred to in that paragraph has the rate of that Australian benefit reduced
under the legislation of Australia upon being absent from Australia for 12
months, the benefit payable to that person under the legislation of the United
Kingdom shall be adjusted upon that reduction occurring.
ARTICLE 9
Conversion of UK earnings factors or contribution
factors
In order to convert to a period of contributions or credits for the
purposes of Articles 4 and 7:
(a) the competent authority of Great
Britain, Northern Ireland or the Isle of Man shall divide any earnings factor
achieved in any tax year commencing after 5 April 1975 under its legislation, by
that years lower earnings limit;
(b) the competent authority of Jersey shall
multiply any contribution factor achieved by a person under its
legislation:
(i) by thirteen in the case of a quarterly contribution
factor; and
(ii) by fifty-two in the case of an annual contribution
factor.
The result shall be expressed as a whole number, any remaining
fraction being ignored. The figure so calculated, subject to a maximum of the
number of weeks during which the person was subject to that legislation in a
quarter or in a year, shall be treated as representing the number of weeks of
contributions or credits completed under that legislation.
PART III—UK FAMILY ALLOWANCE AND GUARDIAN’S
ALLOWANCE
ARTICLE 10
Family Allowance
1. Where a person who has been resident in Australia becomes
permanently resident in the territory of the United Kingdom, the period during
which that person was resident in Australia shall be treated, for the purpose of
a claim by the person for family allowance under the legislation of the United
Kingdom, as a period during which that person was resident in that
territory.
2. For the purpose of any claim to family allowance under the
legislation of Guernsey, a person whose place of birth is in Australia shall be
treated as if his or her place of birth was in Guernsey.
3. In the case
of Jersey, family allowance shall only be paid in respect of a child who is
ordinarily resident in Jersey.
ARTICLE 11
Guardian’s Allowance
1. Where a person who is permanently resident in the territory of the
United Kingdom claims guardian’s allowance under the legislation of any
part of that territory for a child who is permanently resident there, each
complete week during which either parent of that child was resident in Australia
after reaching sixteen years of age shall be treated as if that week had been a
complete week of residence in that part of the territory of the United Kingdom
or as if that parent had been an insured person under the legislation of
Guernsey.
2. If either parent of a child referred to in paragraph (1) was
born in Australia, that parent shall be treated as if he or she had been born in
the United Kingdom.
PART IV—SICKNESS BENEFITS AND INVALIDITY
BENEFITS
ARTICLE 12
Australian Sickness Benefit
Where a person who is temporarily absent from any part of the territory
of the United Kingdom and who is legally in Australia claims sickness benefit
under the legislation of Australia, that person shall, for the purpose of that
claim, be deemed to be an Australian resident.
ARTICLE 13
UK Sickness Benefit and Invalidity Benefit
1. Where a person who is permanently resident in the territory of the
United Kingdom and is ordinarily gainfully occupied, or would be, but for his or
her incapacity for work, claims sickness or invalidity benefit under the
legislation of the relevant part of that territory, then, for the purpose of
calculating entitlement to those benefits, periods during which that person was
in Australia shall be treated in accordance with the provisions of this
Article.
2. For the purpose of calculating entitlement under the
legislation of Great Britain, Northern Ireland or the Isle of Man to sickness or
invalidity benefit:
(a) periods of gainful occupation completed in
Australia before 6 April 1975 shall be treated as if they had been contribution
or equivalent periods completed under the legislation of Great Britain, Northern
Ireland or the Isle of Man; and
(b) periods completed as a self-employed
person in Australia after 5 April 1975 shall be treated as if they have been
contribution periods completed as a self-employed person or equivalent periods
completed under the legislation of Great Britain, Northern Ireland or the Isle
of Man.
3. For the purpose of calculating an earnings factor for
assessing entitlement to sickness or invalidity benefit under the legislation of
Great Britain, Northern Ireland or the Isle of Man, a person shall be treated
for each week beginning in a relevant tax year, during which he or she was an
employed person in Australia, as follows:
(a) for each week commencing on
or after 6 April 1975 and up to 5 April 1987, as having a contribution paid as
an employed earner on earnings equivalent to two-thirds of that year’s
upper earnings limit; and
(b) for each week beginning in a relevant tax year
commencing on or after 6 April 1987, as having earnings on which primary Class 1
contributions have been paid. These earnings shall be treated as equivalent to
two-thirds of that year’s upper earnings limit.
4. For the purpose
of calculating entitlement under the legislation of Guernsey to sickness or
invalidity benefit:
(a) periods during which a person was gainfully
occupied as an employed person in Australia shall be treated as if they had been
contribution or equivalent periods completed as an employed person under the
legislation of Guernsey; and
(b) periods during which a person was gainfully
occupied as a self-employed person in Australia shall be treated as if they had
been contribution or equivalent periods completed as a self-employed person
under the legislation of Guernsey.
5. For the purpose of calculating
entitlement under the legislation of Jersey to any benefit in accordance with
this Article, a person shall be treated:
(a) for each week completed
during residence in Australia between the ages of sixteen years and sixty-five
years being a week in the relevant quarter, as having paid contributions which
derive a quarterly contribution factor of 0.077 for that quarter;
(b) for
each week completed during residence in Australia between the ages of sixteen
years and sixty-five years being a week in a relevant year, as having paid
contributions which derive an annual contribution factor of 0.0193 for that
year.
6. For the purpose of calculating entitlement under the legislation
of the relevant part of the territory of the United Kingdom to sickness or
invalidity benefit, a person shall be treated as if he or she had had earnings
or contributions credited to him or her:
(a) as an
employed person for any week during which he or she was in Australia and was
unemployed and available for work or was incapable of work, if that week was
part of a period during which he or she was or would ordinarily have been
employed; and
(b) as a self-employed person for any other week during which
he or she was in Australia and was incapable of work, if that week was part of a
period during which he or she was or would ordinarily have been
self-employed.
7. Where a person who is permanently resident in the
territory of the United Kingdom was receiving a sickness benefit, an invalid
pension, a sheltered employment allowance or a rehabilitation allowance under
the legislation of Australia when he or she was last in Australia and is
incapable of work at the time when he or she arrives in the territory of the
United Kingdom, he or she shall be treated under the legislation of the United
Kingdom as if, at that time and for so long as he or she continues from that
time to be incapable of work, he or she satisfied the contribution conditions
under which sickness or invalidity benefit is payable.
8. For the purpose
of any claim to invalidity benefit under the legislation of the United Kingdom,
any period in respect of which a person received sickness benefit or an invalid
pension under the legislation of Australia shall be treated as if it were a
period of entitlement to sickness benefit or invalidity benefit completed under
the legislation of the United Kingdom.
9. Nothing in this Article shall
diminish any right which a person has, apart from this Agreement, to receive
sickness or invalidity benefit under the legislation of the United
Kingdom.
10. Where a person is entitled to receive a benefit by virtue of
the provisions of this Article, the rate of benefit which he or she would
otherwise be entitled to receive, but for this paragraph, shall be reduced by
the amount of benefit which is payable by virtue of the legislation of Australia
in accordance with the provisions of Article 8(7).
PART V—UK UNEMPLOYMENT BENEFIT
ARTICLE 14
1. Where a person who is permanently resident in the territory of the
United Kingdom except for Jersey claims unemployment benefit under the
legislation of any part of that territory, then, for the purpose of calculating
entitlement to that benefit, periods during which that person was in Australia
shall be treated in accordance with the provisions of this
Article.
2. Periods of gainful occupation as an employed person in
Australia before 6 April 1975 shall be treated as if they had been contribution
or equivalent periods completed under the legislation of Great Britain, Northern
Ireland or the Isle of Man.
3. For the purpose of calculating an earnings
factor for assessing entitlement to unemployment benefit under the legislation
of Great Britain, Northern Ireland or the Isle of Man, a person shall be treated
for each week beginning in a relevant tax year, during which he or she was an
employed person in Australia, as follows:
(a) for each week commencing on
or after 6 April 1975 and up to 5 April 1987, as having a contribution paid as
an employed earner on earnings equivalent to two-thirds of that year’s
upper earnings limit; and
(b) for each week beginning in a relevant tax year
commencing on or after 6 April 1987, as having earnings on which primary Class 1
contributions have been paid. These earnings shall be treated as equivalent to
two-thirds of that year’s upper earnings limit.
4. For the purpose
of calculating entitlement to unemployment benefit under the legislation of
Guernsey, periods during which a person was gainfully occupied as an employed
person in Australia shall be treated as if they had been contribution or
equivalent periods completed as an employed person under the legislation of
Guernsey.
5. A person shall be treated as if he or she had had earnings
or contributions credited to him or her as an employed person for any week
during which he or she was in Australia and was unemployed and available for
work or was incapable of work, if that week was part of a period during which he
or she was or would ordinarily have been gainfully occupied under a contract of
service.
6. Nothing in this Article shall diminish any right which a
person has, apart from this Agreement, to receive unemployment benefit under the
legislation of the United Kingdom.
7. The provisions of this Article
shall not apply to a person who claims unemployment benefit under the
legislation of Guernsey and who has not paid 26 contributions as an employed
person under that legislation.
PART VI—MISCELLANEOUS PROVISIONS
ARTICLE 15
Temporary Absences
1. A benefit which is payable to a person by Australia under Part II of
this Agreement shall not cease to be payable solely where the person is absent
from Australia and the competent authority of Australia is satisfied that the
absence is temporary. After the person has been temporarily absent from
Australia for a period of 12 months at any one time that person shall then be
deemed to have departed permanently from Australia.
2. Where a person,
who is qualified to receive any benefit under the legislation of the United
Kingdom, would be qualified to receive also an increase of that benefit for a
dependant if the dependant were in that territory, he or she shall be qualified
to receive that increase while the dependant is temporarily in
Australia.
ARTICLE 16
Calculation of Australian Benefits
1. Subject to paragraph (5), the provisions of this Article shall
apply, in relation to the territory of the United Kingdom, only to retirement
pensions and widows’ benefits, and, in relation to Australia only to age
pensions, wives’ pensions, spouse carer’s pensions and pensions
payable to widows, being benefits payable under the legislation of Australia
solely by virtue of this Agreement; and, for the purpose of applying those
provisions, the effect of any provision of the legislation of any part of the
territory of the United Kingdom which concerns overlapping benefits shall be
disregarded.
2. Subject to the provisions of paragraph (3), where a
person who is qualified to receive an Australian benefit also receives a United
Kingdom benefit, the rate of that Australian benefit shall be set
by:
(a) calculating that person’s income according to the
legislation of Australia but disregarding in that calculation the United Kingdom
benefit received by that person;
(b) deducting the amount of the United
Kingdom benefit received by that person from the maximum rate of that Australian
benefit; and
(c) applying to the remaining benefit obtained under
sub-paragraph (b) the relevant rate calculation set out in the legislation of
Australia using as the person’s income the amount calculated under
sub-paragraph (a).
3. Where a married person is, or both that person and
his or her spouse are, in receipt of a United Kingdom benefit or benefits, each
of them shall be deemed, for the purpose of paragraph (2) and for the
legislation of Australia, to be in receipt of one half of either the amount of
that benefit or the total of both of those benefits, as the case may
be.
4. If a person would receive an Australian benefit except for the
operation of paragraph (2) or except for that person’s failure to claim
the benefit, then for the purpose of a claim by that person’s spouse for a
payment under the legislation of Australia that person shall be deemed to
receive that benefit.
5. The reference in paragraph (4) to a payment
under the legislation of Australia to the spouse of a person is a reference to a
payment of:
(a) an age pension;
(b) an invalid pension;
(c) an
unemployment benefit;
(d) a sickness benefit;
(e) a sheltered employment
allowance; or
(f) a rehabilitation allowance,
under that legislation,
whether payable by virtue of this Agreement or otherwise.
6. For the
purpose of this Article “benefit” includes any additional
earnings-related pension, incremental addition, invalidity allowance and age
addition payable with the benefit.
ARTICLE 17
Dual Entitlement in Australia
Where:
(a) a claim is made for a benefit payable by Australia,
by virtue of this Agreement; and
(b) there are reasonable grounds for
believing that the claimant may also be entitled, whether by virtue of this
Agreement or otherwise, to a benefit that is payable under the legislation of
the United Kingdom and that, if paid, would affect the amount of the
first-mentioned benefit,
that first-mentioned benefit shall not be paid
until a claim is duly lodged for payment of the second-mentioned benefit and the
first-mentioned benefit shall not continue to be paid if the claim for the
second-mentioned benefit is not actively pursued.
ARTICLE 18
Dual Entitlement in UK
Where a person is qualified to receive a benefit under the legislation
of the United Kingdom pursuant to Articles 3, 5 or 13 and is also qualified to
receive an Australian benefit, the rate of that Australian benefit shall be
determined under the legislation of Australia but in that determination the
amount of the benefit payable under the legislation of the United Kingdom shall
be disregarded in the computation of that person’s income.
ARTICLE 19
Recovery of Benefit
1. Where a benefit is payable by a Party to a person in respect of a
past period (in this Article referred to as “the first benefit”),
and
(a) for all or part of that same period, the other Party has paid to
that person a benefit under its legislation (in this Article referred to as
“the second benefit”); and
(b) the amount of the second benefit
would have been reduced had the first benefit been paid during that period, the
competent authority of the former Party, at the request of the competent
authority of the latter Party, shall:
(c) deduct from the first benefit an
amount equal to the amount of the second benefit that would not have been paid
had the first benefit been paid on a periodical basis throughout that past
period; and
(d) transmit any sum deducted in accordance with sub-paragraph
(c) above to the competent authority of the latter Party.
Any balance
shall be paid by the former Party direct to the person.
2. Where the
United Kingdom has paid a benefit to a person in respect of a past period
and:
(a) for all or part of that same period, Australia has paid to that
person a benefit under its legislation; and
(b) the amount of the benefit
paid by Australia would have been reduced had the United Kingdom paid its
benefit during that period, the competent authority of Australia may determine
that:
(c) the amount of its benefit which would not have been paid had the
United Kingdom paid its benefit on a periodical basis throughout that period is
a debt due by that person to Australia; and
(d) the amount, or any part, of
that debt may be recovered from future benefits which Australia may pay under
its legislation to that person.
3. A reference in paragraphs (1) or (2)
to a payment under the legislation of a Party means a benefit payable whether by
virtue of this Agreement or otherwise.
4. Where a person has received
income support under the legislation of Great Britain, Northern Ireland or the
Isle of Man for a period for which that person subsequently becomes entitled to
any benefit under the legislation of Australia, the competent institution of
Australia, at the request of and on behalf of the competent institution of Great
Britain, Northern Ireland or the Isle of Man, shall withhold from the benefit
due for that period the amount by which the income support paid exceeded what
would have been paid had the benefit under the legislation of Australia been
paid before the amount of income support was determined, and shall transmit the
amount withheld to the competent institution of Great Britain, Northern Ireland
or the Isle of Man.
ARTICLE 20
Meaning of Permanently Resident
For the purpose of applying the provisions of this Agreement, a person
shall be treated as permanently resident in the territory of the United Kingdom
if he or she is ordinarily resident in that territory and the competent
authority of that territory is satisfied that it is that person’s
intention to remain so resident permanently.
ARTICLE 21
Gainful occupation in Australia
For the purpose of Articles 13 and 14, a person shall be treated as
having been gainfully occupied in Australia during:
(a) any period of
service, whether in Australia or elsewhere, in the Defence Force of Australia;
and
(b) any period of absence from Australia during which that person was an
employee and was treated as being a resident of Australia within the meaning of
any Act relating to the imposition, assessment and collection of a tax upon
incomes in force in Australia.
PART VII—ADMINISTRATION
ARTICLE 22
Administrative Arrangements
The competent authorities of the United Kingdom of Great Britain and
Northern Ireland and the Secretary to the Department of Social Security for the
Government of Australia shall make whatever administrative arrangements are
necessary from time to time in order to implement this Agreement.
ARTICLE 23
Disclosure of Information
1. The competent authorities may supply to each other such information
as is necessary for the operation of this Agreement or of the legislation of
each territory to which this Agreement applies as if the matter involved the
application of their own legislation.
2. Any information received by a
competent authority pursuant to paragraph (1) shall be protected in the same
manner as information obtained under the legislation of that territory and shall
be disclosed only to persons or authorities (including courts and administrative
bodies) concerned with matters, including the determination of appeals, arising
under the provisions of this Agreement and of the legislation to which this
Agreement applies and shall be used only for those purposes.
3. In no
case shall the provisions of paragraphs (1) and (2) be construed so as to impose
on the competent authority of either Party the obligation:
(a) to carry
out administrative measures which are at variance with the laws or the
administrative practice of either Party; or
(b) to supply particulars which
are not obtainable under the laws or in the normal course of the administration
of either Party.
4. The competent authorities shall notify each other of
legislation that supersedes, amends, supplements or replaces the legislation
within the scope of this Agreement in relation to their respective Parties,
promptly after the first-mentioned legislation is enacted.
5. The
appropriate competent authority shall also provide copies of the relevant
legislation and of related explanatory material and any further amplification or
clarification that the other competent authority may request.
PART VIII—TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 24
Transitional Provisions
1. No provision of this Agreement shall confer any right to receive any
payment of a benefit for a period before the date of the entry into force of
this Agreement.
2. Any contribution which a person has paid or earnings
or contributions credited under the legislation of the United Kingdom before the
date of the entry into force of this Agreement, and any period during which a
person was resident in Australia before that date, shall be taken into account
for the purpose of determining the right to receive a benefit in accordance with
the provisions of this Agreement under the legislation of Australia and under
the legislation of the United Kingdom respectively.
3. Subject to
paragraph (4), where, on the date on which this Agreement enters into force, a
person:
(a) is in receipt of a benefit under the legislation of either
Party by virtue of the former Agreement; or
(b) is qualified to receive a
benefit referred to in sub-paragraph (a) and, where a claim for that benefit is
required, has claimed that benefit,
no provision of this Agreement shall
affect the entitlement to receive that benefit.
4. The rate of a benefit
which is payable by virtue of paragraph (3) shall, subject to this Agreement, be
assessed in accordance with the provisions of the legislation of the relevant
Party.
ARTICLE 25
Entry into Force
1. The Agreement shall enter into force on a date to be specified in
Notes exchanged by the Parties through the Diplomatic channel notifying each
other that all matters as are necessary to give effect to this Agreement have
been finalised.
2. Subject to the provisions of Article 24, the former
Agreement shall terminate on the date of entry into force of this
Agreement.
ARTICLE 26
Termination Provisions
1. Subject to paragraph (2), this Agreement shall remain in force until
the expiration of twelve months from the date on which either Party receives
from the other written notice through the diplomatic channel of the intention of
the other Party to terminate this Agreement.
2. In the event that this
Agreement is terminated in accordance with paragraph (1), the Agreement shall
continue to have effect in relation to all persons who by virtue of this
Agreement:
(a) at the date of termination, are in receipt of benefits;
or
(b) prior to the expiry of the period referred to in that paragraph, have
lodged claims for, and would be entitled to receive, benefits.
In
witness whereof the undersigned, duly authorised by their respective
Governments, have signed this Agreement.
Done in duplicate at London this
1st day of October 1990.
For the Government of For the Government of
the
Australia: United Kingdom of Great
Britain and Northern
Ireland:
Graham Richardson Caithness
[Signatures
omitted]
PART B
NOTES DATED 22 APRIL 1992 AND 23 APRIL 1992 BETWEEN THE GOVERNMENT OF
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF
AUSTRALIA AGREEING TO THE DATE THAT THE AGREEMENT ON SOCIAL SECURITY SIGNED AT
LONDON ON 1 OCTOBER 1990 ENTERS INTO FORCE.
Note No. 29
The
British High Commission present their compliments to the Department of Foreign
Affairs and Trade and have the honour to refer to the Agreement on Social
Security Between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of Australia signed at London on 1 October
1990 and, in accordance with Article 25(1) of that Agreement, to notify the
Department of Foreign Affairs and Trade that the Government of the United
Kingdom has completed the constitutional and administrative requirements
necessary for its implementation.
The High Commission have the honour to
propose that, if the Government of Australia has similarly completed its
constitutional and administrative requirements, the Agreement shall enter into
force on 29 June 1992.
The High Commission avail themselves of this
opportunity to renew to the Department of Foreign Affairs and Trade the
assurance of their highest consideration.
22 April 1992
British High
Commission
CANBERRA
Note No. 312327
The Department of
Foreign Affairs and Trade presents its compliments to the British High
Commission and has the honour to refer to the High Commission’s Note No.
29 of 22 April 1992, which reads as follows:
“The British High
Commission present their compliments to the Department of Foreign Affairs and
Trade and have the honour to refer to the Agreement on Social Security between
the Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of Australia signed at London on 1 October 1990 and, in
accordance with Article 25(1) of that Agreement, to notify the Department of
Foreign affairs and Trade that the Government of the United Kingdom has
completed the constitutional and administrative requirements necessary for its
implementation.
The High Commission have the honour to propose that, if
the Government of Australia has similarly completed its constitutional and
administrative requirements, the Agreement shall enter into force on 29 June
1992.”
The Department has the honour to advise that the
constitutional and administrative arrangements necessary for the implementation
of the said Agreement by the Government of Australia have been completed. The
Department further has the honour to confirm that the foregoing is acceptable to
the Government of Australia and that the Agreement shall enter into force on 29
June 1992.
CANBERRA
23 April 1992.
PART C
NOTES DATED 22 APRIL 1992 BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM
OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA AMENDING
THE AGREEMENT ON SOCIAL SECURITY SIGNED AT LONDON ON 1 OCTOBER
1990.
Note No. 30
The British High Commission present their
compliments to the Department of Foreign Affairs and Trade and have the honour
to refer to the Agreement on Social Security between the Government of the
United Kingdom of Great Britain and Northern Ireland and the Government of
Australia signed at London on 1 October 1990 (which in this letter is referred
to as “the Agreement”) and to recent discussions between the
Departments of Social Security of the United Kingdom and Australia concerning
the need to amend the Agreement, so as to make provision for increases of United
Kingdom benefits in respect of dependants to be paid in certain circumstances,
for any period during which such dependant is in Australia.
The British
High Commission now have the honour to propose the following amendments to the
Agreement:
(a) Articles 6 and 15(2) of the Agreement shall be
deleted;
(b) The following shall be inserted after Article 15 of the
Agreement.
“ARTICLE 15A
UK INCREASES FOR DEPENDANTS
Where a person who is qualified to receive any benefit under the
legislation of the United Kingdom, other than a retirement pension or a widowed
mother’s allowance payable by virtue of this or the former Agreement,
would be qualified to receive also an increase of that benefit for a dependant
if the dependant were in that territory, he or she shall be qualified to receive
that increase while the dependant is in Australia”.
If the
foregoing proposals are acceptable to the Government of Australia, the High
Commission have the honour to propose that this Note and the Department of
Foreign Affairs and Trade’s reply to that effect, shall constitute an
Agreement between the government of the United Kingdom of Great Britain and
Northern Ireland and the Government of Australia which shall enter into force on
29 June 1992.
The British High Commission avail themselves of this
opportunity to renew to the Department of Foreign Affairs and Trade the
assurance of their highest consideration.
22 April 1992
British High
Commission
Canberra
Note No. 312326
The Department of
Foreign Affairs and Trade presents its compliments to the British High
Commission and has the honour to refer to the High Commission’s Note No.
30 of 22 April 1992, which reads as follows:
“The British High
Commission present their compliments to the Department of Foreign Affairs and
Trade and have the honour to refer to the Agreement on Social Security between
the Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of Australia signed at London on 1 October 1990 (which in this
letter is referred to as “the Agreement”) and to recent discussions
between the Departments of Social Security of the United Kingdom and Australia
concerning the need to amend the Agreement, so as to make provision for
increases of United Kingdom benefits in respect of dependants to be paid in
certain circumstances, for any period during which such dependant is in
Australia.
The British High Commission now have the honour to propose the
following amendments to the Agreement:
(a) Articles 6 and 15(2) of the
Agreement shall be deleted;
(b) The following shall be inserted after Article
15 of the Agreement.
“ARTICLE 15A
UK INCREASES FOR DEPENDANTS
Where a person who is qualified to receive any benefit under the
legislation of the United Kingdom, other than a retirement pension or a widowed
mother’s allowance payable by virtue of this or the former Agreement,
would be qualified to receive also an increase of that benefit for a dependant
if the dependant were in that territory, he or she shall be qualified to receive
that increase while the dependant is in Australia.
If the foregoing
proposals are acceptable to the Government of Australia, the High Commission
have the honour to propose that this Note and the Department of Foreign Affairs
and Trade’s reply to that effect, shall constitute an Agreement between
the Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of Australia which shall enter into force on 29 June
1992.”
The Department has the honour to confirm that the foregoing
is acceptable to the Government of Australia and that the High
Commission’s Note and this reply shall together constitute an Agreement
between the Government of Australia and the Government of the United Kingdom of
Great Britain and Northern Ireland which shall enter into force on 29 June
1992.
CANBERRA
22 April 1992.
Note: See section 5.
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF ITALY
PROVIDING FOR RECIPROCITY IN MATTERS RELATING TO SOCIAL SECURITY
Australia and the republic of Italy,
Wishing to strengthen the
existing friendly relations between the two countries, and
Desiring to
co-ordinate the operation of their respective social security systems and to
enhance the equitable access by people who move between Australia and Italy to
social security benefits provided for under the laws of both countries, Have
agreed as follows:
PART I—INTERPRETATION AND SCOPE
ARTICLE 1
Interpretation
1. In this Agreement, unless the context otherwise
requires:
(a) “Australian benefit” means a benefit referred
to in Article 2 in relation to Australia;
(b) “benefit” means
Australian benefit or Italian benefit;
(c) “competent authority”
means, in the case of Australia, the Secretary to the Department of Social
Security or an authorised representative of the Secretary and, in the case of
Italy, the Ministry of Labour and Social
Welfare;
(d) “dependants” means, in relation to Italy, persons
who are within the categories of family members of a person insured, or of a
pensioner, under the social security laws of Italy and who are recognised, by
those laws, as the dependants of such a person or
pensioner;
(e) “institution”, in relation to a Contracting Party,
means an institution apart from a competent authority which is responsible for
the application of this Agreement in respect of that Contracting Party as
specified in administrative arrangements made from time to time pursuant to
Article 19;
(f) “Italian benefit” means a benefit payable under
the social security laws of Italy;
(g) “Italian supplement” means
a supplement paid in order to increase the amount of a benefit, derived from
credited contributions and payable to a person, to the minimum amount specified
for that benefit in the social security laws of
Italy;
(h) “month” means calendar month;
(i) “period of
Australian residence during working life”, in relation to a person, means
the period, or the aggregate of the periods, during which that person has been a
resident of Australia, other than any period -
(a) during which the
person had not attained the age of 16 years; or
(b) after the person, being a
woman, had attained the age of 60 years or, being a man, had attained the age of
65 years;
but does not include any period deemed pursuant to
sub-paragraph 1 (c) of Article 7 to be a period in which that person was
residing in Australia;
(j) “period of credited
contributions”, in relation to a person, means a period, or the total of
two or more periods, of contributions used to acquire a benefit, and any period
deemed to be a period of contributions, under the social security laws of Italy
by that person but does not include any period deemed pursuant to sub-paragraph
1(d) of Article 7 to be a period of credited contributions in
Italy;
(k) “period of residence in Australia”, in relation to a
person, means a period or the total of 2 or more periods, at any time, when that
person was residing in Australia for purposes of the social security laws of
Australia, but does not include any period deemed pursuant to sub-paragraph 1(c)
of Article 7 to be a period in which that person was residing in
Australia;
(l) “social security laws of Australia” means the
Social Security Act 1947 of Australia as amended, not including amendments
effected by laws made by Australia for the purpose of giving effect to an
agreement on social security;
(m) “social security laws of Italy”
means legislation within the scope of this Agreement, in relation to Italy, by
virtue of Article 2;
(n) “spouse carer’s pension” means a
carer’s pension payable to a husband under the legislation within the
scope of this agreement relating to Australia;
(o) “survivors”
means, in relation to Italy, persons who are within the categories of family
members of a person who was insured or was a pensioner under the social security
laws of Italy, and is now deceased, and who are recognised by those laws as
survivors of that person or pensioner;
(p) “widow” means, in
relation to Australia, a de jure widow; and
(q) “year” means a
period of 365 days or, if that period includes 29 February, 366
days.
2. A reference in this Agreement to additional pensions and
mothers’ and guardians’ allowances for children is a reference to
increases in the rate of any of the benefits referred to in items (i) to (vi)
inclusive of sub-paragraph 1 (a) of Article 2 and paid under provisions of the
legislation within the scope of this Agreement in relation to Australia relating
to the custody, care and control of a child or children.
3. In the
application of this Agreement by a Contracting Party, any term not defined in
this Agreement shall, unless the context otherwise requires, have the meaning
which it has under the legislation within the scope of this Agreement, in
relation to that Contracting Party, by virtue of Article 2.
ARTICLE 2
Legislative Scope
1. The legislation within the scope of this Agreement is:
(a) in
relation to Australia: the Social Security Act 1947 as amended at the date of
signature of this Agreement and any legislation that subsequently amends,
supplements or replaces that Act, in so far as that Act and that legislation
provide for and for all matters in relation to the following
benefits:
(i) age pensions;
(ii) invalid pensions;
(iii) pensions
payable to widows;
(iv) wives’ pensions;
(v) double orphans’
pensions;
(vi) spouse carers’ pensions; and
(vii) additional
pensions and mothers and guardians’ allowances for children;
and
(b) in relation to Italy: the legislation in force at the date of
signature of this Agreement and any legislation that subsequently amends,
supplements or replaces that legislation, concerning the compulsory general
insurance scheme for employees in regard to invalidity, old age and survivors;
special insurance schemes for self-employed persons and other categories of
workers; family allowances and unemployment insurance, and in particular the
following benefits:
(i) old age pensions;
(ii) seniority
pensions;
(iii) anticipated pensions;
(iv) invalidity
allowances;
(v) inability pensions;
(vi) privileged invalidity
allowances;
(vii) privileged inability pensions;
(viii) invalidity
attendance allowance;
(ix) survivors’ pensions;
(x) family
allowances for dependants of pensioners; and
(xi) unemployment
allowances.
2. Notwithstanding the provisions of paragraph 1, the
legislation within the scope of this Agreement shall not include any laws made,
whether before or after the date of signature of this Agreement, for the purpose
of giving effect to any bilateral agreement on social security entered into by
either Contracting Party.
3. The competent authorities of the Contracting
Parties shall notify each other of legislation that amends, supplements or
replaces the legislation within the scope of this Agreement in relation to their
respective Contracting Parties, promptly after the first- mentioned legislation
is enacted.
ARTICLE 3
Personal Scope
Except as otherwise provided in Articles 4 and 20, this Agreement shall
apply to persons who move between Australia and Italy and who are or have been
resident in Australia or have been credited with contributions under the social
security laws of Italy and, where applicable, to any dependants or survivors of
those persons.
ARTICLE 4
Equality of Treatment
1. The citizens of each of the Contracting Parties shall be treated
equally in the application of the social security laws of Australia and of
Italy, respectively, and in any case in which entitlement to a benefit payable
under those laws by a Contracting Party depends, in whole or in part, on
citizenship of that Contracting Party, a person who is a citizen of the other
Contracting Party shall, for the purposes of a claim for that benefit, be deemed
to be a citizen of the first-mentioned Contracting Party.
2. The persons
to whom this Agreement applies shall be treated equally by each of the
Contracting Parties in regard to rights and obligations which arise by virtue of
this Agreement in relation to each Contracting Party.
PART II—RESIDENCE OR PRESENCE OUTSIDE AUSTRALIA FOR
PURPOSES OF QUALIFYING FOR AUSTRALIAN BENEFITS
ARTICLE 5
Residence or Presence in Italy
Where, apart from residing and being physically present in Australia, a
person is qualified for an Australian benefit under the social security laws of
Australia or by virtue of this Agreement but, on the date on which he or she
lodges a claim for that benefit, he or she is:
(a) residing in Australia
and physically present in Italy;
(b) residing in Italy and physically present
in Australia; or
(c) residing and physically present in Italy,
that
person shall be deemed, for the purposes of that claim, to be residing in and
physically present in Australia on that date.
ARTICLE 6
Residence or Presence in a Third Country
A person who is a resident of Australia or Italy, or of a third country
with which Australia enters into an agreement on social security, and is
physically present in that third country may, if that agreement includes
provisions for co-operation in the assessment and determination of claims for
benefits, lodge in that third country a claim for an Australian benefit, and
that person shall, for the purposes of that claim, be deemed to be residing in
and physically present in Australia on the date of lodgement of that
claim.
PART III—TOTALISATION AND PRO-RATA
BENEFITS
ARTICLE 7
Totalisation of Periods of Residence and Periods of
Contributions
1. Where a person to whom this Agreement applies has
accumulated:
(a) a period of residence in Australia that
is:
(i) less than the period required to qualify him or her, in respect
of residence, under the social security laws of Australia for an Australian
benefit; and
(ii) equal to or greater than the minimum period identified in
accordance with paragraph 4 for that person; or
(b) a period of credited
contributions that is:
(i) less than the period required to qualify him
or her, in respect of contributions, under the social security laws of Italy for
an Italian benefit; and
(ii) equal to or greater than the minimum period
identified in accordance with paragraph 5 for that benefit,
and, on the
other hand, has accumulated both a period of Australian residence during working
life and a period of credited contributions in Italy which, when added together,
are equal to or in excess of the required minimum period specified for that
benefit by the legislation that is within the scope of this Agreement in
relation to the Contracting Party by whom the benefit may be payable,
then:
(c) for the purposes of a claim for that Australian benefit, the
last-mentioned period of credited contributions shall be deemed to be a period
in which that person was residing in Australia; and
(d) for the purposes
of a claim for that Italian benefit, that period of Australian residence during
working life shall be deemed to be a period of credited contributions in
Italy.
2. Where a person to whom paragraph 1 applies:
(a) has
resided continuously in Australia for a period which is less than the minimum
period of continuous residence required by the social security laws of Australia
for entitlement of that person to an Australian benefit; and
(b) has
accumulated a period of credited contributions in 2 or more separate periods
that exceed in total the minimum period referred to in sub-paragraph (a),
the total of the periods of credited contributions shall be deemed to
be one continuous period and, by virtue of sub-paragraph 1-(c), a period in
which the person was residing continuously in Australia, equivalent to that
total.
3. Where a period of residence in Australia and a period of
credited contributions in Italy coincide, the period of coincidence shall be
taken into account once by each of the Contracting Parties for the purposes of
this Article, as follows:
(a) for an Australian benefit: as a period of
residence in Australia; and
(b) for an Italian benefit: as a period of
credited contributions.
4. The minimum period of Australian residence
during working life to be taken into account for the purposes of paragraph 1
shall be as follows:
(a) for the purposes of an Australian benefit that
is payable to a person outside Australia: the minimum period required shall be 1
year’s residence, of which at least 6 months must be continuous;
and
(b) for the purposes of an Australian benefit that is payable to a person
in Australia: no minimum period shall be required.
5. The minimum period
of credited contributions in Italy to be taken into account for the purposes of
paragraph 1 shall be as follows:
(a) for old age pension: 1
year;
(b) for anticipated pension: 1 year;
(c) for seniority pension: 15
years;
(d) for invalidity allowance: 1 year;
(e) for inability pension: 1
year;
(f) for privileged invalidity allowance: 1 year;
(g) for privileged
inability pension: 1 year; and
(h) for survivor’s pension: 1
year.
6. For the purposes of eligibility for voluntary insurance under
the social security laws of Italy, a period of credited contributions in Italy
in relation to a person shall be combined, where necessary, with any period of
Australian residence during working life accumulated by that person, provided
that the first-mentioned period totals at least one year.
ARTICLE 8
Australian Pro-Rata Benefits
1. Where an Australian benefit, other than a double orphan’s
pension, is payable by virtue of this Agreement:
(a) to a person who is
outside Australia: subject to paragraphs 2 and 9, the rate of that benefit shall
be determined in accordance with the formula
A = PQ
300
where
A represents the rate of benefit
payable;
Q represents, subject to paragraph 5, the number of whole
months, plus one, accumulated in a period of Australian residence during working
life by that person, but not exceeding 300;
P represents the rate
of Australian benefit that would be payable to that person if:
(i) he or
she were in Australia and were qualified under the social security laws of
Australia to receive that benefit;
(ii) any amount paid to that person as an
Italian supplement were not included as income for that person in determining
the rate; and
(iii) the amount of Italian benefit taken into account as
income for those same purposes were calculated as follows;
Y = Q X I
300
where
Y represents the amount of Italian benefit
to be taken into account;
Q represents the same value as set out
above in this subparagraph; and
I represents the amount of an
Italian benefit payable to that person not including the amount of any Italian
supplement;
(b) to a person who is in Australia: the rate of that benefit
shall, subject to paragraph 6, be calculated by disregarding, in the computation
of his or her income, any Italian benefit, including any Italian supplement,
which that person is entitled to receive, and by deducting the amount of that
Italian benefit, including that supplement, from the rate of Australian benefit
which would otherwise be payable to that person.
2. The rate mentioned in
subparagraph 1(a) in relation to the symbol A shall not exceed the rate that
would have been payable to that person if he or she had been in Australia and
had met the requirements, in respect of residence, under the social security
laws of Australia.
3. Where the rate of a benefit calculated in
accordance with subparagraph 1(b) is less than the rate of that benefit which
would be payable under subparagraph 1(a) if the person concerned were outside
Australia, the first-mentioned rate shall be increased to an amount equivalent
to the second-mentioned rate.
4. For the purposes of paragraph 3, a
comparison of the rates of a benefit determined in accordance with subparagraphs
1(a) and 1(b) shall be made as at:
(a) the date of the first pension pay
day occurring after the date on which the claim for the benefit was lodged;
and
(b) each anniversary of that pension pay day for so long as the person
concerned is entitled to the benefit,
using, as the value of the symbol
Q in subparagraph 1(a), the number of whole months, plus one, in the period of
Australian residence during working life accumulated by the person at the date
as at which the comparison is made.
5. In the case of a person and his or
her spouse or of a widow, the value to be applied to the symbol Q for the
purposes of subparagraph 1(a), in relation to a claim by either that person or
each of that person and that spouse, or by that widow, shall be determined in
accordance with those provisions of the social security laws of Australia which
specify periods of residence for calculating benefits payable to persons outside
Australia.
6. For the purposes of subparagraph 1(b),
where:
(a) one or other, or both, of a person and his or her spouse are
entitled to receive an Italian benefit; or
(b) a person is entitled to
receive an increase in respect of his or her spouse in an Italian benefit
payable to that person,
the total of the Italian benefits payable to
that person and his or her spouse shall be apportioned equally between them and
disregarded in the computation of their respective incomes, and the amount so
apportioned shall be deducted from the amount of Australian benefit that would
otherwise be payable to each of them.
7. In paragraph 6, a reference to a
spouse of a person is a reference not only to the de jure spouse of that person
but also to a de facto spouse within the meaning of that term under the social
security laws of Australia.
8. Subparagraph 1(a) shall not apply
to:
(a) a person who becomes qualified to receive an invalid pension by
virtue of this Agreement where the person became permanently incapacitated for
work or permanently blind while in Australia or during a temporary absence from
Australia;
(b) a widow who becomes qualified to receive a widow’s
pension by virtue of this Agreement by reason of the death in Australia or
during a temporary absence from Australia of the widow’s former spouse
while the widow and that spouse were residing permanently in Australia;
or
(c) a person, during any absence of the person from Australia that
commences before 1 January 1996, who:
(i) becomes eligible to receive an
Australian benefit by virtue of this Agreement;
(ii) was a resident of
Australia or an absent resident on 8 May 1985; and
(iii) commences to receive
that benefit before 1 January 1996.
9. An Australian benefit that is
payable by virtue of this Agreement to a person who:
(a) was a resident
of Australia or an absent resident on 8 May 1985; and
(b) commences to
receive that benefit before 1 January 1996,
shall be paid, during any
absence of that person from Australia that commences before 1 January 1996, at a
rate calculated in accordance with subparagraph 1(b) and paragraph
3.
ARTICLE 9
Italian Pro-Rata Benefits
1. The amount of an Italian benefit payable to a person by virtue of
this Agreement through the application of Article 7 shall be determined as
follows:
(a) the amount of the theoretical benefit to which the person
concerned would be entitled shall be established as if the period of credited
contributions in Italy, and the period of Australian residence during working
life referred to in subparagraph 1(d) of Article 7, and accumulated to the date
from which the benefit would be payable, for that person had accumulated under
the social security laws of Italy; and
(b) the amount of benefit payable
shall be that amount which bears to the amount referred to in subparagraph(a)
the same ratio as that period of credited contributions bears to the sum of that
period of credited contributions and that period of Australian residence during
working life for that person.
2. If the sum of the periods referred to in
subparagraph 1(b) exceeds the maximum period provided for by the social security
laws of Italy for entitlement to the maximum rate of the benefit concerned, that
maximum period shall be substituted for that sum in calculations made in
accordance with that subparagraph.
3. The calculation of a rate in
relation to a person in accordance with paragraph 1 shall take into account only
the salary of that person which was subject to contributions under the social
security laws of Italy.
PART IV—PROVISIONS CONCERNING
BENEFITS
ARTICLE 10
Payment of Supplementary and Additional Amounts
Where a benefit is payable by a Contracting Party by virtue of this
Agreement to or in respect of a person, there shall also be payable any
supplement or additional amount that is payable, in addition to that benefit, to
or in respect of a person who qualifies for that supplement or additional amount
under the social security laws of that Contracting Party.
ARTICLE 11
Unemployment Allowance
For the purposes of eligibility by a citizen of Australia or of Italy
for unemployment allowance under the social security laws of Italy, any periods
of employment accumulated by that person in Australia, other than periods of
self-employment, shall be totalised with periods of credited contributions in
Italy for that person, if those last-mentioned periods total one year or
more.
ARTICLE 12
Double Orphan’s Pension
Where a double orphan’s pension is payable under the social
security laws of Australia in respect of a child who was orphaned during a
period of residence in Australia by that child, that pension shall, subject to
the provisions of those laws, be payable while that child is in Italy to the
person who has the custody, care and control of the child.
ARTICLE 13
Family Allowances
Family allowances payable under the social security laws of
Italy:
(a) shall be payable by virtue of this Agreement to persons who
are receiving an Italian benefit payable under the social security laws of
Italy, whether those persons are citizens of Australia or Italy, and who are
residing in Australia; and
(b) shall not preclude the payment of family
allowance under the social security laws of Australia, including those laws as
modified or adapted by laws giving effect to an agreement on social security
with a third country,
and shall for the purposes of reciprocity in
relation to this Agreement be regarded as the Italian benefit equivalent to
those Australian benefits described as:
(c) wives’
pensions;
(d) spouse carers’ pensions; and
(e) additional pensions
and mothers’ and guardians’ allowances for children.
ARTICLE 14
Wife’s Pension and Spouse Carer’s
Pension
A person who receives from Australia a wife’s pension or a spouse
carer’s pension by virtue of the fact that the spouse of that person
receives, by virtue of that Agreement, an Australian benefit shall, for the
purposes of this Agreement and in particular for the purposes of paragraph 6 of
Article 8, be deemed to receive that pension by virtue of this
Agreement.
PART V—MISCELLANEOUS PROVISIONS
ARTICLE 15
Lodgement of Claims
1. A claim for a benefit, whether payable by virtue of this Agreement
or otherwise, may be lodged:
(a) in the territory of either of the
Contracting Parties in accordance with administrative arrangements made pursuant
to Article 19; or
(b) in a third country if that country is of the kind
referred to in Article 6,
at any time after the Agreement enters into
force.
2. Where a claim for a benefit of a Contracting Party is lodged in
the territory of the other Contracting Party or in a third country in accordance
with paragraph 1, the date on which the claim is so lodged shall be the date of
lodgement of the claim for all purposes relating to the claim.
ARTICLE 16
Determination of Claims
1. In determining the entitlement of a person to a benefit by virtue of
this Agreement:
(a) a period of Australian residence during working life
and a period of credited contributions; and
(b) any event which is relevant
to that entitlement,
shall, subject to this Agreement, be taken into
account in so far as those periods or those events are applicable in regard to
that person and whether they were accumulated or occurred before or after the
date on which this Agreement enters into force.
2. The commencement date
for payment of a benefit payable by virtue of this Agreement shall be determined
in accordance with the social laws of the Contracting Party concerned but in no
case shall that date be a date earlier than the date on which this Agreement
enters into force.
3. (1) Where:
(a) a claim is made for a benefit
payable by one of the Contracting Parties, whether by virtue of this Agreement
or otherwise; and
(b) there are reasonable grounds for believing that the
claimant may also be entitled, whether by virtue of this Agreement or otherwise,
to a benefit (in this Article called “assumed benefit”), that is
payable by the other Contracting Party and that, if paid, would affect the
amount of the first-mentioned benefit,
that claim may be determined by
the first-mentioned Party as if the assumed benefit were in fact being paid to
that claimant.
(2) Where a claim for a benefit is determined in
accordance with subparagraph (1) and it is subsequently established that the
amount of the assumed benefit in relation to that person was not in fact paid,
any deficiency in the payment of the first-mentioned benefit shall be adjusted
retrospectively.
(3) In this paragraph and in paragraph 4,
“benefit” is not limited to those benefits specified in Article
2.
4. Where:
(a) it appears that a person who is entitled to the
payment of a benefit by one of the Contracting Parties might also be entitled to
the payment of a benefit by the other Contracting Party, in either case whether
by virtue of this Agreement or otherwise;
(b) the amount of the benefit that
might be paid by that other Contracting Party would affect the amount of the
benefit payable by the first-mentioned Contracting Party; and
(c) the amount
that could be due in respect of the benefit by that other Contracting Party,
whether by virtue of this Agreement or otherwise, is likely to include an
adjustment for arrears of that benefit,
then
(d) that other
Contracting Party shall, if the first-mentioned Contracting Party so requests,
pay the amount of those arrears to the first-mentioned Contracting Party;
and
(e) the first-mentioned Contracting Party may deduct from the amount of
those arrears any excess amount of the benefit paid by it and shall pay any
balance remaining to that person.
ARTICLE 17
Exclusion of Italian Supplement from Australian Income
Test
Where a person receives both a benefit under the social security laws
of Australia, including any laws made for the purpose of giving effect to an
agreement on social security other than this Agreement, and an Italian benefit
which includes an Italian supplement, that supplement shall not be included as
income for the purposes of the social security laws of Australia.
ARTICLE 18
Portability of Benefits
1. Where a benefit is payable by a Contracting Party by virtue of this
Agreement that benefit shall be payable within and outside the respective
territory of both Contracting Parties.
2. Subject to paragraph 3, the
payment of a benefit by a Contracting Party shall be subject to the provisions
of this Agreement and of the legislation within the scope of this Agreement in
relation to that Contracting Party.
3. The legislation referred to in
paragraph 2 in relation to Australia shall not include those provisions which
preclude the payment of benefits outside Australia.
4. A benefit payable
by a Contracting Party by virtue of this Agreement shall be paid by that
Contracting Party, whether the beneficiary is in the territory of the other
Contracting Party or outside the respective territory of both Contracting
Parties, without deduction for administrative fees and charges.
ARTICLE 19
Administrative Arrangements and Mutual Assistance
1. The competent authorities of the Contracting Parties shall make
whatever administrative arrangements are necessary from time to time in order to
implement this Agreement, or in relation to any matter arising under their
respective social security laws, and, where those arrangements are required to
be made on a mutual basis, shall co-operate, both in regard to matters affecting
the operation of both social security systems and of each of them.
2. The
competent authorities of the Contracting Parties will, at the request of one to
the other, assist each other in relation to the implementation of agreements on
social security entered into by either of the Contracting Parties with other
countries.
ARTICLE 20
Exchange of Information
1. The competent authorities and the institutions of the Contracting
Parties shall exchange such information as is necessary for the operation of
this Agreement or of the social security laws of the Contracting Parties
concerning all matters arising under this Agreement or under those
laws.
2. The competent authorities and institutions of the Contracting
Parties may exchange information of the kind referred to in paragraph 1 in
relation to any person who has lodged a claim for or is in receipt of a benefit
and who is outside the categories of persons referred to in Article
3.
3. Any information received by the competent authority or an
institution of a Contracting Party pursuant to paragraphs 1 or 2 shall be
protected in the same manner as information obtained under the social security
laws of that Contracting Party and shall be disclosed only to persons or
authorities (including courts and administrative bodies) concerned with matters,
including the determination of appeals, arising under the provisions of this
Agreement or the social security laws of the Contracting Parties and shall be
used only for those purposes.
4. In no case shall the provisions of
paragraphs 1, 2 and 3 be construed so as to impose on the competent authority or
an institution of a Contracting Party the obligation:
(a) to carry out
administrative measures at variance with the laws or the administrative practice
of that or of the other Contracting Party; or
(b) to supply particulars which
are not obtainable under the laws or in the normal course of the administration
of that or the other Contracting Party.
5. Unless there are reasonable
grounds for believing the contrary, any information received by a competent
authority or relevant institution from the competent authority or an institution
of the other Contracting Party shall be accepted as valid or true, as the case
requires.
6. A Contracting Party shall not raise any charges against the
other Contracting Party for services of an administrative nature, including
services rendered in accordance with Article 19, by that first-mentioned
Contracting Party to the other in accordance with this Agreement, but that other
Contracting Party shall meet any costs or expenses which are reasonably incurred
for those services and are payable to another person or
organisation.
ARTICLE 21
Appeals
1. Any person who is affected by a determination, direction, decision
or approval made or given by the competent authority or institution of a
Contracting Party, in relation to a matter arising by virtue of this Agreement
shall have the same rights to the review, by administrative and judicial bodies
of that Contracting Party, of that determination, direction, decision or
approval as are provided under the domestic laws of that Contracting
Party.
2. Documents relating to appeals that may be made to
administrative bodies established by, or administratively for the purposes of,
the social security laws of one of the Contracting Parties may be lodged in the
territory of the other Contracting Party, in accordance with administrative
arrangements made pursuant to Article 19 and any documents duly lodged in that
manner shall be regarded as duly lodged for the purposes of those
laws.
3. The date on which a document is duly lodged in the territory of
one of the Contracting Parties in accordance with paragraph 2 shall determine
whether that document is lodged within any time limit specified by the laws or
administrative practices of the other Contracting Party which govern the appeal
concerned.
ARTICLE 22
Review of Agreement
1. The Contracting Parties may agree at any time to review any of the
provisions of this Agreement.
2. The Contracting Parties shall appoint
representatives to meet as a committee of experts once during each year for the
first four years after this Agreement comes into force and to review and report
to the competent authorities on the operation and effectiveness of the
Agreement, taking into account operational experience and practices in and
between the two countries and between either of them and any other country with
which either has entered into an agreement on social security.
3. The
contracting Parties shall consult on the further arrangements to review this
Agreement and its operations to apply after it has been in force for four
years.
4. The administrative arrangements made pursuant to Article 19
shall contain guidance on the role and method of operation of the committee of
experts referred to in paragraph 2.
5. (1) In particular, where a
Contracting Party enacts legislation that amends, supplements or replaces the
legislation within the scope of this Agreement in relation to that Contracting
Party, the Contracting Parties shall, if one of them so requests, consult on any
matters that arise, as a consequence of that first-mentioned legislation, in
relation to the continued operation or possible amendment of this
Agreement.
(2) For the purposes of the consultations referred to in
subparagraph (1), the Contracting Parties may direct the committee of experts
referred to in paragraph 2 to meet and report on matters which the Contracting
Parties require to be considered by the committee.
PART VI—FINAL PROVISIONS
ARTICLE 23
Entry Into Force
1. This Agreement shall be ratified by both Contracting Parties
according to their respective procedures and shall enter into force on the first
day of the month next following the month in which the instruments of
ratification are exchanged.
2. Immediately upon this Agreement entering
into force, the Agreement made on 2 November 1972 between the Government of the
Commonwealth of Australia and the Government of the Republic of Italy in
relation to portability of pensions between Australia and Italy shall
terminate.
ARTICLE 24
Termination
1. Subject to paragraph 2, this Agreement shall remain in force until
the expiration of 12 months from the date on which either Contracting Party
receives from the other written notice through the diplomatic channel of the
intention of the other Contracting Party to terminate this
Agreement.
2. In the event that this Agreement is terminated in
accordance with paragraph 1, the Agreement shall continue to have effect in
relation to all persons who:
(a) at the date of termination, are in
receipt of benefits; or
(b) prior to the expiry of the period referred to in
that paragraph, have lodged claims for, and would be entitled to receive,
benefits,
by virtue of this Agreement.
IN WITNESS WHEREOF the
undersigned, duly authorised thereto, have signed this Agreement.
DONE in
duplicate at Rome the 23rd day of April 1986 in the English and Italian
languages, both texts being equally authoritative.
FOR AUSTRALIA FOR
THE REPUBLIC OF ITALY
Bob Hawke B. Craxi
[Signatures
omitted]
Note: See section 5.
PART A
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF NEW ZEALAND PROVIDING FOR RECIPROCITY IN MATTERS RELATING TO
SOCIAL SECURITY
The Government of Australia and
The Government of New
Zealand
WISHING to strengthen the existing friendly relations between the
two countries, and
DESIRING to co-ordinate the operation of their
respective social security systems and to enhance the equitable access by people
covered by this Agreement to social security benefits provided for under the
laws of both countries, and
WISHING to modify the Agreement providing for
matters relating to social security which they entered into on the 31st day of
October 1988 by means of a consolidated document,
HAVE agreed as
follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Interpretation
1. In this Agreement, unless the context otherwise
requires:
(a) “benefit” means in relation to a Party, any of
the benefits, pensions or allowances listed in Article 2(1), and includes any
amount, increase or supplement that is payable in addition to that benefit,
pension or allowance to or in respect of a person who is eligible for that
amount, increase or supplement under the legislation of that
Party;
(b) “competent authority” means,
in relation to
Australia:
the Secretary to the Department of Social Security;
and
in relation to New Zealand:
the Director-General of Social
Welfare or an authorised representative of the
Director-General;
(c) “competent institution”
means,
in relation to Australia:
the Department of Social
Security; and
in relation to New Zealand:
the New Zealand Income
Support Service of the Department of Social Welfare;
(d) “financial
year” means, except in the case of the first financial year, the period
from 1 July of any year to 30 June of the next year;
(e) “first
financial year” means the period from 1 January 1995 to 30 June
1995;
(f) “foreign pension” means, in relation to a person, any
payment made to that person under the national social security, social welfare
or social insurance law of a third state;
(g) “legislation”
means,
in relation to Australia, the law specified in subparagraph 1(a)
of Article 2; and
in relation to New Zealand, the laws specified in
subparagraph 1(b) of Article 2;
(h) “month” means, except as
provided in Article 12, a calendar month, but where days are aggregated a month
means 30 days;
(i) “period of Australian working life residence”
means,
in relation to Australia, a period defined as such in the
legislation of Australia but also includes any period during which the person to
whom it relates, relied on Article 4(1)(b) of the agreement signed at Canberra
on 31 October 1988 or relies on Article 8(2)(b)(ii) or (iii) to be eligible for
an Australian benefit;
(j) “period of New Zealand working life
residence” means,
in relation to New Zealand, a period of ordinary
residence in New Zealand between the ages of 16 and 65 but includes any period
during which the person to whom it relates, relied on Article 4(1)(b) of the
agreement signed at Canberra on 31 October 1988 or relies on Article 7(2)(b)(ii)
or (iii) to be eligible for a New Zealand benefit;
(k) “ordinarily
resident” has, in relation to New Zealand, the meaning and interpretation
given to it under the laws of New Zealand;
(l) “partner” means,
in relation to New Zealand, spouse;
(m) “territory”
means,
in relation to Australia: Australia as defined in the legislation
of Australia; and
in relation to New Zealand: New Zealand only and not
the Cook Islands, Niue or Tokelau;
and references to
“Australia”, “New Zealand” or the
“territory” of either shall be read
accordingly;
(n) “year” means 12 calendar months.
2.
Any term not defined in this Article shall, unless the context otherwise
requires, have the meaning given to it in the legislation of either Party or, in
the event of a conflict of meanings, by whichever of those laws is the more
applicable in the circumstances.
ARTICLE 2
Legislative Scope
1. Except as provided under paragraph 2, this Agreement shall apply to
the following laws, as amended at the date of signature of this Agreement, and
to any legislation that subsequently amends, supplements, consolidates or
replaces them:
(a) in relation to Australia: the Social Security Act
1991 in so far as Act provides for, applies to or affects the following
benefits:
(i) age pension;
(ii) disability support
pension;
(iii) widow B pension;
(iv) sole parent pension;
(v) wife
pension; and
(vi) additional family payment payable to persons in receipt of
the above benefits; and
(b) in relation to New Zealand: the Social
Security Act 1964 and the Social Welfare (Transitional Provisions) Act
1990 in so far as they provide for, apply to or affect the following
benefits:
(i) New Zealand superannuation;
(ii) veteran’s
pension;
(iii) invalids benefit;
(iv) widows benefit; and
(v) domestic
purposes benefit for solo parents.
2. This Agreement shall apply to laws
or regulations which extend the existing legislation to other categories of
beneficiaries only if the two Parties so agree in a formal amendment to this
Agreement.
ARTICLE 3
Personal Scope
1. This Agreement shall apply to any person who:
(a) is or has
been an Australian resident; and
(b) is or has been ordinarily resident in
the territory of New Zealand; and
to any other person who derives rights
to a benefit from a person who is eligible for a benefit under this
Agreement.
2. This Agreement shall not apply to persons who are
unlawfully in the territory of a Party.
3. No person shall be considered
to have been resident, present, ordinarily resident or to have acquired working
life residence in the territory of either Party for any period during which that
person was unlawfully in the territory of a Party.
ARTICLE 4
Equality of Treatment
Except as provided in this Agreement, all persons to whom this
Agreement applies shall be treated equally by a Party in regard to rights and
obligations which arise whether directly under the legislation of that Party or
by virtue of this Agreement.
PART II—PROVISIONS RELATING TO
BENEFITS
ARTICLE 5
Corresponding Benefits
1. For the purposes of this Agreement:
(a) the Australian age
pension corresponds to New Zealand superannuation and veteran’s
pension;
(b) the Australian age pension paid to a woman who would receive a
widows benefit if she was in New Zealand shall correspond to a New Zealand
widows benefit;
(c) the Australian disability support pension corresponds to
the New Zealand invalids benefit;
(d) the Australian widow B pension
corresponds to the New Zealand widows benefit paid to persons without dependent
children; and
(e) the Australian sole parent pension corresponds to the New
Zealand domestic purposes benefit for solo parents and widows benefit paid to
persons with dependent children.
ARTICLE 6
Partner Related Benefits
1. A person who receives a benefit under the legislation of either
Australia or New Zealand, due to the fact that the partner of that person
receives a benefit by virtue of this Agreement, shall be considered to be
receiving that benefit under this Agreement.
2. If a person is eligible
for and is receiving a New Zealand benefit under the legislation of New Zealand
independently of that person’s partner who is receiving a New Zealand
benefit by virtue of this Agreement, that person shall not be considered to be
receiving his or her benefit under this Agreement.
3. If a person is
eligible for and is receiving an Australian benefit under the legislation of
Australia independently of that person’s partner who is receiving an
Australian benefit by virtue of this Agreement, that person shall not be
considered to be receiving his or her benefit under this
Agreement.
ARTICLE 7
Eligibility for New Zealand Benefits by Former Residents of
Australia
1. A person who does not meet the residence criteria for New Zealand
superannuation but would otherwise be eligible for that benefit under the
legislation of New Zealand shall be eligible for New Zealand superannuation if
that person:
(a) has reached the age of eligibility under the legislation
of New Zealand or under the legislation of Australia for a corresponding
benefit, whichever is the later age;
(b) is one of the
following:
(i) ordinarily resident in New Zealand;
(ii) present in New
Zealand and has the intention of remaining in New Zealand for at least one year;
or
(iii) present in New Zealand and has been present in New Zealand for at
least one year
at the date of grant of that
benefit;
(c) either:
(i) was an Australian resident immediately
before arriving in New Zealand; or
(ii) was, on entry into New Zealand, the
holder of a valid Australian passport; and
(d) had been an Australian
resident for a period of not less than 10 years, or an aggregate of 10 years,
after age 16.
2. A person who does not meet the residence criteria for
any New Zealand benefit (other than New Zealand superannuation) but who would
otherwise be eligible for that benefit under the legislation of New Zealand
shall be eligible for that benefit if that person:
(a) has reached the
age of eligibility under the legislation of New Zealand or under the legislation
of Australia, for the corresponding benefit, whichever is the later
age;
(b) is one of the following:
(i) ordinarily resident in New
Zealand;
(ii) present in New Zealand and has the intention of remaining in
New Zealand for at least one year; or
(iii) present in New Zealand and has
been present in New Zealand for one year
at the date of grant of that
benefit;
(c) either:
(i) was an Australian resident immediately
before arriving in New Zealand; or
(ii) was, on entry into New Zealand, the
holder of a valid Australian passport; and
(d) had been an Australian
resident for a period of not less than 10 years or an aggregate of 10
years.
3. No person other than a widower shall be eligible for a domestic
purposes benefit for solo parents by virtue of this Agreement or the legislation
of New Zealand if that person’s right to remain in New Zealand is
dependent on that person being an Australian citizen or a former Australian
resident, unless that person, immediately before the claim for benefit was
lodged has either:
(a) been continuously present in New Zealand for at
least 26 weeks; or
(b) been ordinarily resident in New Zealand for a period
of at least 12 months.
4. Nothing in this Article or Article 8 shall
affect the eligibility of a person who is in receipt of a New Zealand benefit
under the temporary absence provisions under the legislation of New
Zealand.
5. No person shall be eligible for a New Zealand benefit at the
same time as he or she is in receipt of an Australian benefit.
6. A
person shall not be eligible for a benefit under this Agreement or under the
legislation of New Zealand if that person fails to supply the competent
authority of Australia or New Zealand with any information to which that person
has access and which is legally required to establish:
(a) eligibility
for a benefit under this Agreement; or
(b) the amount which the Government of
Australia is required to reimburse the Government of New Zealand under this
Agreement.
ARTICLE 8
Eligibility for Australian Benefits by Former Residents of
New Zealand
1. A person who does not meet the residence criteria for an age pension
but who would otherwise be eligible for that benefit under the legislation of
Australia shall be eligible for an age pension if that person:
(a) has
reached the age of eligibility under the legislation of Australia or under the
legislation of New Zealand, for a corresponding benefit, whichever is the later
age;
(b) is one of the following:
(i) an Australian
resident;
(ii) in Australia and has the intention of remaining in Australia
for at least one year; or
(iii) in Australia and has been in Australia for
one year
at the date of grant of that
benefit;
(c) either:
(i) was ordinarily resident in New Zealand
immediately before arriving in Australia; or
(ii) was, on entry into
Australia, a New Zealand citizen; and
(d) had been ordinarily resident in
New Zealand for a period of not less than 10 years, or an aggregate of 10 years,
after age 16.
2. A person who does not meet the residence criteria for an
Australian benefit (other than an age pension) but who would otherwise be
eligible for that benefit under the legislation of Australia shall be eligible
for that benefit if that person:
(a) has reached the age of eligibility
under the legislation of Australia or under the legislation of New Zealand for a
corresponding benefit, whichever is the later age;
(b) is one of the
following:
(i) an Australian resident;
(ii) in Australia and has the
intention of remaining in Australia for at least one year; or
(iii) in
Australia and has been in Australia for one year
at the date of grant of
that benefit;
(c) either:
(i) was ordinarily resident in New
Zealand immediately before arriving in Australia; or
(ii) was, on entry into
Australia, a New Zealand citizen; and
(d) had been ordinarily resident in
New Zealand for a period of not less than 10 years or an aggregate of 10
years.
3. No person other than a widow or a widower shall be eligible for
a sole parent pension by virtue of this Agreement or the legislation of
Australia if that person’s right to remain in Australia is dependent on
that person being a New Zealand citizen, unless that person, immediately before
the claim for benefit was lodged, has either:
(a) been continuously
present in Australia for at least 26 weeks; or
(b) been an Australian
resident for a period of at least 12 months.
4. Subject to this
Agreement, a person who is ordinarily resident in New Zealand shall not be
eligible for an Australian portable benefit where that person would be eligible
for a New Zealand benefit.
5. A person who is present, but not ordinarily
resident, in New Zealand shall not be eligible for an Australian portable
benefit after a period which exceeds the period of temporary absence allowable
for the corresponding New Zealand benefit under the legislation of New
Zealand.
6. Where, at the date this Agreement comes into force, a person
is ordinarily resident in or present in New Zealand and is in receipt of an
Australian benefit, the competent authority of New Zealand shall calculate the
rate of its benefit as if that Australian benefit was not being received and
Australia shall cease paying its benefit to that person on any date New Zealand
grants its benefit to that person.
7. No person shall be eligible for an
Australian benefit at the same time as he or she is in receipt of a New Zealand
benefit.
8. A person shall not be eligible for a benefit under this
Agreement or under the legislation of Australia if that person fails to supply
the competent authority of Australia or New Zealand with any information to
which that person has access and which is legally required to
establish:
(a) eligibility for a benefit under this Agreement;
or
(b) the amount which the Government of New Zealand is required to
reimburse the Government of Australia under this Agreement.
ARTICLE 9
Calculation of Rates of Benefits
1. Except as provided in paragraphs 2 and 3, if a benefit is payable by
a Party under this Agreement, the amount of that benefit will be determined
according to the legislation of that Party.
2. If a person who is
receiving a benefit under this Agreement, is also in receipt of a foreign
pension, that pension shall not be regarded as income, but the maximum rate of
benefit otherwise payable to that person shall be reduced by the amount of the
foreign pension.
3. For the purposes of paragraph 2, if a person
receiving a benefit has a partner:
(a) in relation to Australia, each
partner shall be considered to receive one half of the total of any foreign
pensions received by either partner; and
(b) in relation to New Zealand, any
foreign pension received by that person only shall be directly deducted first
from the rate of New Zealand benefit payable to that person and then any excess
shall be directly deducted from the rate of New Zealand benefit payable to that
person’s partner and any foreign pension received by that person’s
partner shall be directly deducted first from the rate of New Zealand benefit
payable to that partner and then any excess shall be directly deducted from the
rate of New Zealand benefit payable to that person.
4. Where members of a
couple are in receipt of respectively, New Zealand and Australian benefits, each
Party shall, when calculating the rate of benefit payable, disregard the amount
of benefit paid by the other Party to the other member of the
couple.
ARTICLE 10
Residence in Third States
1. If a person who has been an Australian resident and has been
ordinarily resident in New Zealand is residing in a third State with which both,
or either, Australia or New Zealand have or has a bilateral social security
agreement:
(a) any benefit from New Zealand for which that person is
eligible shall not be considered as income or directly deducted in assessing the
rate of any Australian benefit for which that person is eligible; and
(b) any
benefit from Australia for which that person is eligible shall not be considered
as income or directly deducted in assessing the rate of any New Zealand benefit
for which that person is eligible.
PART III—REIMBURSEMENT PROVISIONS
ARTICLE 11
CRITERIA FOR REIMBURSEMENT OF BENEFITS
1. Except as provided in Article 13 and paragraph 3 of this Article,
the Government of New Zealand shall reimburse the Government of Australia, on
and from 1 January 1995, in accordance with the provisions of Article 12, for
any benefit paid to a person who:
(a) has a period of Australian working
life residence of less than 10 years;
(b) either:
(i) had been
ordinarily resident in New Zealand immediately before arriving in Australia;
or
(ii) was, on entry into Australia, the holder of a valid New Zealand
passport;
(c) had been ordinarily resident in New Zealand for a period of
not less than 10 years or an aggregate of 10 years;
(d) would be eligible for
a corresponding benefit from New Zealand if that person had been resident in New
Zealand;
(e) is an Australian resident and in Australia or is in receipt of a
benefit by virtue of Article 8(1)(b)(ii) or (iii) or Article 8(2)(b)(ii) or
(iii); and
(f) last became an Australian resident on or after 1 January
1983.
2. Except as provided under Article 12 and paragraph 3 of this
Article, the Government of Australia shall reimburse the Government of New
Zealand, on and from 1 January 1995, for any benefit paid to a person
who:
(a) has a period of New Zealand working life residence of less than
10 years;
(b) either:
(i) had been an Australian resident immediately
before arriving in New Zealand; or
(ii) was, on entry into New Zealand, the
holder of a valid Australian passport;
(c) had been resident in Australia
for a period of not less than 10 years or an aggregate of 10 years;
(d) would
be eligible for a corresponding benefit from Australia if that person had been
resident in Australia;
(e) is resident and present in New Zealand or is in
receipt of a benefit by virtue of Article 7(1)(b)(ii) or (iii) or Article
7(2)(b)(ii) or (iii); and
(f) last became ordinarily resident in New Zealand
on or after 1 January 1983.
3. Neither Party shall be required to
reimburse the other Party for any sole parent pension or domestic purposes
benefit payable to a person, other than a widow or widower, if that person has
been in receipt of a sole parent pension for a period of less than 12
consecutive months.
4. Working life residence shall continue to be
accruable during any period a benefit (other than age pension or New Zealand
superannuation) is paid by either Australia or New Zealand.
5. Neither
Party shall be required to reimburse the other Party for a benefit paid to a
person who is outside the territory of the Party paying the benefit for a period
which exceeds the period of temporary absence allowable under the legislation of
New Zealand in respect of that benefit or a corresponding benefit.
6.
Any Australian benefit, as defined in Article 1 of this Agreement, payable by
virtue of the former Agreement at the date on which this Agreement comes into
force, shall be reimbursable by the Government of New Zealand at a rate
calculated under Article 12 of this Agreement.
ARTICLE 12
Rate of Reimbursement of Benefits
1. The amount a Party shall be required to reimburse the other Party
for a benefit under Article 11 shall be calculated as follows:
(a) by
dividing the number of whole months of working life residence in the reimbursing
country of the person receiving the benefit by:
(i) 480 in the case of an
age pension; and
(ii) 300 in the case of any other benefit; and
(b) by
multiplying the results under subparagraph (a) by the nominal benefit
rate.
2. The nominal benefit rate shall be calculated as
follows:
(a) in relation to an Australian age pension,
either:
(i) the amount of age pension actually paid; or
(ii) the rate
of New Zealand superannuation that is payable under the legislation of New
Zealand:
A. in the case of a single person living alone the rate payable
to a single person who is living alone;
B. in the case of a single person not
living alone the rate payable to a single person who is not living
alone;
C. in the case of a married person whose partner is not receiving a
wife pension, the rate payable to a married person whose spouse is also eligible
for New Zealand superannuation in his or her own right;
less an amount
equal to the income of that person as it exceeds the applicable New Zealand
superannuation thresholds under the Income Tax Act of 1976, multiplied by
the prevailing rate of the New Zealand superannuation surcharge; or
D. in
the case of a married person whose partner is receiving a wife pension, the rate
payable to a married person whose spouse is not eligible for New Zealand
superannuation in his or her own right and who elects to receive the income
tested rate applicable after 1 April 1991;
whichever is the lesser
amount;
(b) in relation to other Australian benefits,
either:
(i) the amount of Australian benefit actually paid;
or
(ii) the rate of the corresponding New Zealand benefit (after the New
Zealand income test applicable to that benefit has been applied) which would be
payable if that person was resident in New Zealand;
whichever is the
lesser amount;
(c) in relation to New Zealand superannuation,
either:
(i) the amount of New Zealand superannuation actually paid, less
(except where the rate of payment is subject to an income test under the
legislation of New Zealand) an amount equal to the income of that person as it
exceeds the applicable New Zealand superannuation thresholds under the Income
Tax Act of 1976, multiplied by the prevailing rate of the New Zealand
superannuation surcharge; or
(ii) the rate of age pension, after the income
and assets tests applicable to that person had been applied, which would be
payable if that person was resident in Australia;
whichever is the
lesser amount; and
(d) in relation to other New Zealand benefits,
either:
(i) the amount of New Zealand benefit actually paid;
or
(ii) the rate of the corresponding Australian benefit (after the
Australian income and assets tests applicable to the benefit have been applied)
which would be payable if that person was resident in
Australia:
whichever is the lesser amount.
3. For the purposes of
paragraph (2) the income on which any income test is applied to determine the
nominal benefit rate of a person shall not include the amount of the benefit
actually paid, any additional amount or supplement or any foreign pension paid
to that person or that person’s partner.
4. If a person’s
period of working life residence would be a number of whole months and a day or
days, the period is to be increased so that it is equal to the number of months
plus one month.
5. Neither Party shall be required to reimburse the other
for any additional amount or supplement that is paid to a person who is in
receipt of a benefit under this Agreement and in determining the nominal benefit
rate, an amount of benefit actually paid or rate of benefit shall not include
any additional amount or supplement.
6. In the case of a married couple,
each partner shall be assessed individually for the purposes of deciding whether
that person’s benefit is reimbursable under Article 11 and estimating the
rate of reimbursement under this Article.
ARTICLE 13
Phase-in Provisions
1. In respect of benefits which were granted before 1 January 1945, for
the first 4 financial years, each Party shall be required to reimburse the other
Party for only a percentage of the amount which is reimbursable under Article 12
in respect of those benefits (in this Article called “the reimbursable
amount of the historical group”). That percentage shall be calculated as
follows:
(a) 15% of the reimbursable amount of the historical group for
the first financial year ending on 30 June 1995;
(b) 40% of the reimbursable
amount of the historical group for the financial year ending on 30 June
1996;
(c) 6O% of the reimbursable amount of the historical group for the
financial year ending on 30 June 1997; and
(d) 80% of the reimbursable amount
of the historical group for the financial year ending on 30 June
1998;
and thereafter shall pay the full reimbursable
amount.
2. Notwithstanding paragraph (1)(a) above, the amount to be
reimbursed by a Party for the financial year ending on 30 June 1995, under that
paragraph shall be at least equal to the amount that would have been reimbursed
by that Party under the 1988 Agreement between the Parties.
3. A Party
shall reimburse the other Party the full amount to be reimbursed by it under
Article 12 for all benefits granted by the other Party on or after 1 January
1995.
ARTICLE 14
Reimbursement Procedures
1. At least 2 months before the start of the financial year, while any
benefit is reimbursable under this Agreement, the competent institution of
Australia shall supply the competent institution of New Zealand with a written
estimate of the amount of the reimbursement for that financial year and the
competent institution of New Zealand shall supply the competent institution of
Australia with a written estimate of the amount of the reimbursement for that
financial year, except in respect of the first financial year, when the estimate
shall be made at least 2 months before 1 January 1995.
2. The amount the
competent institution of a Party is required to pay to the competent institution
of the other Party for a financial year, during that financial year, shall equal
the amount that the other Party estimated under paragraph 1.
3. Subject
to paragraph 4, the amount determined in paragraph 1 shall be payable in equal
quarterly instalments by the competent institution of a Party to the competent
institution of the other Party on 1 July, 1 October, 1 January and 1
April.
4. In regard to amounts to be reimbursed by each Party in the
first financial year of operation of this Agreement, the full amount determined
in paragraph 1 shall be payable within 3 months of 1 January
1995.
5. Within 3 months after the end of the financial year or the first
financial year:
(a) the competency institution of Australia shall provide
the competent institution of New Zealand with a written reconciliation statement
covering the amounts estimated as payable under paragraph 1 and the amounts
actually reimbursable in that financial year; and
(b) the competent
institution of New Zealand shall provide the competent institution of Australia
with a written reconciliation statement covering the amounts estimated as
payable under paragraph 1 and the amounts actually reimbursable in that
financial year.
6. If the reconciliation statements referred to in
paragraph 5 show that an amount is payable by one Party to the other to balance
the payments in the relevant financial year, then that amount shall be paid,
together with any interest payable under paragraph 7, at the time of the next
quarterly payment referred to in paragraph 3.
7. If at the end of a
financial year a Party is required to make a payment to the other Party under
paragraph 6, then interest will be payable on the total amount outstanding. The
total interest payable shall be the sum of the four amounts of interest payable
in respect of each quarterly reimbursement period referred to in paragraph 3,
calculated using the formula in paragraph 8.
8. In respect of each
quarterly reimbursement period referred to in paragraph 3, the interest payable
under paragraph 7 shall be calculated on the following basis:
Interest
Payable = NP x (N x I)/365
where:
NP = Nominal payment equal to
one quarter of the amount payable by a Party to the other to balance the
payments in the relevant financial year.
N = The number of days between
the date at which the nominal payment would have been paid if no estimation
error had occurred (ie, the commencement of the relevant quarter) and the date
the payment is settled.
I = The relevant interest rate referred to in
paragraph 9.
9. For the purposes of paragraph 8, the “relevant
interest rate” shall be:
(a) in the case of refunds made by the
Government of Australia, the 26 week New Zealand Government Treasury Bill rate
expressed in per annum terms obtained in the regular Treasury Bill auction
closest in time to when the nominal payment would have been paid if the
estimation under paragraph 1 had been exact; and
(b) in the case of refunds
made by the Government of New Zealand, the 180 day Australian Government
Treasury Bill rate expressed in per annum terms applicable at the time the
nominal payment would have been paid if the estimation under paragraph 1 had
been exact.
10. Any interest payable under paragraph 7 in respect of a
financial year shall be payable at the same time as the payment under paragraph
6.
11. For administrative purposes, the gross quarterly amounts payable
by each Party (comprising the estimated reimbursable amount for the next quarter
under paragraph 3 and any nominal payment under paragraph 6 and associated
interest payments under paragraph 7) shall be netted between the two
Parties.
12. For the purposes of netting in paragraph 11, the relevant
cross rate between the Australian dollar and the New Zealand dollar shall be
determined by using the mid-rates as quoted at 3 pm on the ASAP page of Reuters,
or equivalent page, 5 working days prior to the relevant quarterly settlement
date.
13. For net payment purposes, the Government of Australia shall
reimburse the Government of New Zealand in New Zealand dollars and the
Government of New Zealand shall reimburse the Government of Australia in
Australian dollars.
14. If a Party has forwarded to the other Party a
reconciliation statement referred to in paragraph 5, that Party shall not be
entitled to claim any further reimbursement for benefit payments made in that
financial year.
15. At any time, on the agreement of the Parties, the
procedures under this Article may be modified or substituted by an exchange of
notes.
PART IV—MISCELLANEOUS PROVISIONS
ARTICLE 15
Benefits for the Unemployed
1. This Article applies to any person who is in the territory of a
Party and whose right to remain in that territory is dependent upon that person
being:
(a) in the case of New Zealand, an Australian citizen or a former
Australian resident; and
(b) in the case of Australia, a New Zealand
citizen.
2. Subject to paragraph 3, a person to whom this Agreement
applies shall not be eligible to receive benefits for the unemployed from a
Party unless the person:
(a) has been continuously present in the
territory of that Party for not less than 6 months since the date of his or her
most recent arrival in that territory; and
(b) meets those criteria which are
specified for that benefit by the legislation of that Party.
3. This
Article shall not apply to a person who has been:
(a) in relation to
Australia, an Australian resident; or
(b) in relation to New Zealand,
ordinarily resident in New Zealand,
for the period of 12 months
immediately before the date on which the person lodges a claim for a benefit for
the unemployed in, respectively, Australia or New Zealand.
4. For the
purposes of this Article only, benefits for the unemployed means, in relation to
Australia:
(i) job search allowance;
(ii) newstart allowance;
and
(iii) young homeless allowance; and
in relation to New
Zealand:
(i) unemployment benefit;
(ii) job search
allowance;
(iii) training benefit; and
(iv) independent youth
allowance.
ARTICLE 16
Mutual Assistance and Exchange of Information
1. The competent authorities and competent institutions responsible for
the application of this Agreement:
(a) shall communicate to the other
Party, in relation to each benefit granted by that Party and which is
reimbursable under Article 11, all the information required
to:
(i) verify that the person in receipt of that benefit is eligible to
receive it under the legislation of the Party granting the
benefit;
(ii) verify that the person in receipt of that benefit would be
eligible for the corresponding benefit if he or she was resident in Australia or
ordinarily resident in New Zealand, as the case may be;
(iii) verify that the
amount of benefit paid is the amount payable;
(iv) determine the rate of the
corresponding benefit that would be payable if the person in receipt of the
benefit were resident in Australia or ordinarily resident in New Zealand as the
case may be; and
(v) determine the amount of benefit that is reimbursable
under Article 11;
(b) shall communicate to each other, as soon as
possible, all information about the measures taken by them for the application
of this Agreement or about changes in their respective legislation in so far as
these changes affect the application of this Agreement; and
(c) at the
request of one to the other, assist each other in relation to the implementation
of Agreements on social security entered into by either of the Parties with
third states, to the extent and in the circumstances specified in the
administrative arrangement made pursuant to Article 17.
2. The assistance
referred to in paragraph 1 shall be provided free of charge, subject to any
administrative arrangement made pursuant to Article 17.
3. Unless
disclosure is required or permitted under the laws of a Party, any information
about an individual which is transmitted in accordance with this Agreement to a
competent authority or competent institution of that Party by a competent
authority or a competent institution of the other Party is confidential and
shall be used only for purposes of implementing this Agreement and the social
security laws of either Party.
4. In no case shall the provisions of
paragraphs 1 and 3 be construed so as to impose on the competent authority or
competent institution of a Party the obligation:
(a) to carry out
administrative measures at variance with the laws or the administrative
practices of that or the other Party; or
(b) to supply particulars which are
not obtainable under the laws or in the normal course of the administration of
either Party.
5. Communication between the Parties, including the
exchange of information may be conducted by electronic data transfer should the
Parties so agree in an exchange of letters at any time.
6. The competent
authorities of the Parties shall exchange such information as is necessary for
the operation of this Agreement or of the social security laws of the Parties
concerning all matters arising under this Agreement, apart from matters relating
to maintenance payments or liable parent contributions.
ARTICLE 17
Administrative Arrangement
The competent authorities of the Parties shall make whatever
administrative arrangements are necessary in order to implement this
Agreement.
ARTICLE 18
Recovery of Overpayments
1. Where:
(a) an amount paid by one of the Parties to a person
in respect of a benefit exceeds the amount if any, that was properly payable,
whether by virtue of this Agreement or otherwise, in respect of that benefit;
and
(b) a benefit is payable by the other Party to that person, whether by
virtue of this Agreement or otherwise,
the competent institution of that
other Party shall, if requested by the other competent institution to do so, and
in accordance with this Article, deduct the amount equivalent to the excess
payment referred to in subparagraph (a) from the amount due in respect of the
last mentioned benefit.
2. The amount of an excess payment referred to in
paragraph 1 shall be the amount determined by the competent institution of the
Party by whom the excess payment was made.
3. The rate of deductions made
in accordance with paragraph 1 from amounts due in respect of a benefit, and any
incidental or related matters, shall be determined by the competent institution
of the Party by whom the benefit is payable, in accordance with the legislation
or practice of that Party.
4. Amounts deducted by the competent
institution of one of the Parties in accordance with paragraph 1, and any
amounts received by that competent institution pursuant to arrangements referred
to in paragraph 3, shall be remitted to the other competent institution as
agreed between the competent institutions or in any administrative arrangement
made pursuant to Article 17.
5. For the purposes of this Article,
“benefit” shall also include:
in relation to New
Zealand:
(a) unemployment benefit;
(b) sickness
benefit;
(c) transitional retirement benefit;
(d) independent youth
benefit;
(e) job search allowance;
(f) training benefit;
(g) domestic
purposes benefit for caregivers and women alone;
(h) orphans benefit;
and
(i) unsupported child’s benefit; and
in relation to
Australia:
(a) job search allowance;
(b) newstart
allowance;
(c) sickness allowance;
(d) carer pension;
(e) double
orphans pension; and
(f) family payments.
ARTICLE 19
Resolution of Difficulties
1. The competent authorities of the Parties shall resolve, to the
extent possible, any difficulties which arise in interpreting or applying this
Agreement according to its spirit and fundamental principles.
2. The
Parties shall consult promptly at the request of either concerning matters which
have not been resolved by the competent authorities in accordance with paragraph
1.
ARTICLE 20
Review of the Agreement
1. The Parties may agree at any time to review the whole or any part of
this Agreement.
2. Subject to paragraph 1, the Parties shall meet for the
purpose of reviewing the implementation of this Agreement within 12 months of
the Agreement coming into force.
3. Where a Party amends, supplements or
replaces its legislation, the Parties shall consult on any consequence of that
change to the legislation and on the continuing implementation of the Agreement
including on whether any amendment to the Agreement is
necessary.
4. Where a Party requests the other to meet to review this
Agreement, the Parties shall meet for that purpose no later than 6 months after
that request was made and, unless the Parties otherwise agree, their meeting
shall be held in the territory of the Party to which that request was
made.
PART V—FINAL PROVISIONS
ARTICLE 21
Transitional Provisions
1. Subject to this Agreement, in determining the eligibility of a
person for a benefit payable by virtue of this Agreement, or in determining the
reimbursement liability of a Party:
(a) a period as an Australian
resident and a period during which a person was ordinarily resident in New
Zealand; and
(b) any event or fact which is relevant to that
eligibility,
shall be taken into account in so far as those periods or
those events are applicable in regard to that person, no matter when they were
accumulated or occurred.
2. The start date for payment of a benefit
payable by virtue of this Agreement shall be determined in accordance with the
legislation of the Party concerned but shall never be earlier than the date on
which this Agreement enters into force.
3. If this Agreement does not
come into force on 1 January 1995, the Parties shall reimburse each other from 1
January 1995, at the rate provided under Article 12 of this Agreement, but only
to the amount provided under Article 13, for all benefits granted before the
Agreement comes into force that meet the criteria for reimbursement under
Article 12 of this Agreement.
4. Any right to a benefit outside the scope
of this Agreement acquired by a person in accordance with the provisions of the
Agreement signed at Canberra on 31 October 1988 shall
continue.
5. Subject to this Agreement, when this Agreement comes into
force, the Agreement between the Government of Australia and the Government of
New Zealand providing for Reciprocity in Matters relevant to Social Security
signed at Canberra on 31 October 1988 shall terminate and persons who were
receiving benefits by virtue of that 1988 Agreement shall receive those benefits
by virtue of this Agreement.
ARTICLE 22
Entry into Force and Termination
1. This Agreement shall come into force on 1 January 1995 if, before
that date, the Parties have notified each other by exchange of notes through the
diplomatic channel that all requirements that are necessary to give effect to
this Agreement in their law have been met. Otherwise it shall come into force
on the first day of the second month following the month in which the exchange
of notes took place.
2. Subject to paragraph 3, this Agreement shall
remain in force until the expiration of 12 months from the date on which either
Party receives from the other a written notice through the diplomatic channel
indicating the intention of either Party to terminate this
Agreement.
3. In the event that this Agreement is terminated in
accordance with paragraph 2, the Agreement shall continue to have effect in
relation to all persons who:
(a) at the date of termination, are in
receipt of benefits; or
(b) prior to the expiry of the period referred to in
that paragraph, have lodged claims for, and would be eligible to receive,
benefits.
4. In the event that this Agreement is terminated in accordance
with paragraph 2, the reimbursement provisions of this Agreement shall also
continue to apply to all benefits payable at the time of the expiry of the 12
months mentioned in that paragraph.
IN WITNESS WHEREOF, the
undersigned, being duly authorised thereto by their respective Governments, have
signed this Agreement.
DONE in duplicate at Wellington this Nineteenth
day of July 1994
Peter Baldwin Peter Gresham
FOR THE FOR
THE GOVERNMENT GOVERNMENT
OF AUSTRALIA OF NEW ZEALAND
[Signatures
omitted]
PART B
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF NEW
ZEALAND
WISHING to amend and supplement the Agreement on Social Security
between the two States signed at Wellington on the nineteenth day of July 1994,
have agreed as follows:
ARTICLE I
1. In this Protocol “Agreement” means the Agreement between
the Government of New Zealand and the Government of Australia on Social Security
signed on the nineteenth day of July 1994 at Wellington.
2. In the
application of this Protocol (the first Protocol to the Agreement) any term
defined in the Agreement shall, unless the context otherwise requires, have the
same meaning.
3. In the application of this Protocol any term not defined
in the Agreement or this Protocol shall, unless the context otherwise requires,
have the meaning assigned to it by the legislation of either
Party.
ARTICLE II
Subparagraph (j) of paragraph 1 of Article 1 of the Agreement shall be
deleted and substituted by the following:
“(j) “period of New
Zealand working life residence” means,
in relation to New Zealand,
a period of ordinary residence in New Zealand between the ages of 16 and 65, but
includes any period during which the person to whom it relates relied on Article
4(2)(b) of the Agreement between the Government of Australia and the Government
of New Zealand providing for reciprocity in matters relating to Social Security
signed at Canberra on 31 October 1988 or relies on Article 7(2)(b)(ii) or (iii)
of the Agreement to be eligible for a New Zealand benefit.”
ARTICLE III
Subparagraph (a) of paragraph 1 of Article 2 of the Agreement shall be
deleted and substituted by the following:
“(a) in relation to
Australia: the Social Security Act 1991 in so far as the Act provides for,
applies to or affects the following benefits:
(i) age
pension;
(ii) disability support pension;
(iii) widow B
pension;
(iv) sole parent pension;
(v) wife pension;
(vi) partner
allowance payable to the female partner of a person in receipt of an age pension
or a disability support pension (referred to in this Agreement as partner
allowance);
(vii) parenting allowance payable to the female partner of a
person in receipt of an age pension or a disability support pension (referred to
in this Agreement as parenting allowance); and
(viii) additional family
payment payable to persons in receipt of the above benefits;
and”
ARTICLE IV
In order to clarify the original intentions of the Parties when first
drafting Article 3 of the Agreement, paragraph 1 of Article 3 of the Agreement
shall be deleted and substituted by the following:
“1. This
Agreement shall apply to any person who:
(a) is or has been an Australian
resident; or
(b) is or has been ordinarily resident in the territory of New
Zealand; and
to any other person who derives rights to a benefit from a
person who is eligible for a benefit under this Agreement.”
ARTICLE V
Subparagraph (b) of paragraph 1 of Article 12 of the Agreement shall be
deleted and substituted by the following:
“(b) by multiplying the
nominal benefit rate (as calculated below) by the smaller of:
(i) the
result obtained under subparagraph (a); or
(ii) one.”
ARTICLE VI
Paragraph 3 of Article 14 of the Agreement shall be deleted and
substituted by the following:
“3. Subject to paragraph 4, the
amount determined in paragraph 1 shall be payable in equal quarterly instalments
by the competent institution of a Party to the competent institution of the
other Party on 1 July, 1 October, 1 January and 1 April or, if those dates are
not banking days, on the first banking day thereafter.”
ARTICLE VII
Paragraph 4 of Article 15 of the Agreement shall be deleted and
substituted by the following:
“4. For the purposes of this Article
only, benefits for the unemployed means, in relation to
Australia:
(i) job search allowance; and
(ii) newstart allowance;
and
in relation to New Zealand:
(i) unemployment
benefit;
(ii) job search allowance;
(iii) training benefit;
and
(iv) independent youth allowance.”
ARTICLE VIII
Upon an exchange of notes by the Parties through the diplomatic channel
notifying each other that all matters as are necessary to give effect to this
Protocol have been finalised, this Protocol shall be deemed to have entered into
force on 1 January 1995, except for Article III which shall be deemed to have
entered into force on 1 July 1995.
IN WITNESS WHEREOF, the
undersigned, being duly authorized thereto by their respective Governments, have
signed this Protocol.
DONE in duplicate at Sydney this seventh day of
September 1995.
FOR THE FOR THE GOVERNMENT GOVERNMENT
OF
AUSTRALIA OF NEW ZEALAND
PETER BALDWIN GRAHAM FORTUNE
[Signatures
omitted]
PART C
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF NEW
ZEALAND
WISHING to amend and supplement the Agreement on Social Security
between the two States signed at Wellington on the nineteenth day of July 1994,
have agreed as follows:
ARTICLE I
1. In this Protocol “Agreement” means the Agreement between
the Government of New Zealand and the Government of Australia on Social Security
signed on the nineteenth day of July 1994 at Wellington as amended by the first
Protocol signed on the seventh day of September 1995 at Sydney.
2. In the
application of this Protocol (the second Protocol to the Agreement) any term
defined in the Agreement shall, unless the context otherwise requires, have the
same meaning.
3. In the application of this Protocol any term not defined
in the Agreement or this Protocol shall, unless the context otherwise requires,
have the meaning assigned to it by the legislation of either
Party.
ARTICLE II
1. The heading to Article 7 of the Agreement shall be amended to read
“Eligibility for New Zealand Benefits”.
2. Paragraphs 4 and 5
of Article 7 of the Agreement shall be deleted and the remaining paragraph shall
be renumbered as paragraph 4.
ARTICLE III
1. The heading to Article 8 of the Agreement shall be amended to read
“Eligibility for Australian Benefits”.
2. Paragraphs 4 and 5
of Article 8 of the Agreement shall be deleted and the remaining paragraphs
shall be renumbered as paragraphs 4, 5 and 6.
ARTICLE IV
A new Article shall be inserted after Article 8 of the Agreement, to
read as follows:
“ARTICLE 8A
Portability of Benefits
New Zealand benefits
1. Except as provided in paragraphs
2 and 3, the temporary absence provisions under the legislation of New Zealand
shall apply to a person who is receiving a New Zealand benefit under this
Agreement.
2. A person who is in receipt of New Zealand Superannuation
and who is present in Australia but not an Australian resident, shall be
eligible to continue to receive that benefit for up to 26
weeks:
(a) where that person is temporarily absent from New Zealand for
up to 26 weeks; or
(b) where that person is temporarily absent from New
Zealand for over 26 weeks and in the opinion of the New Zealand Competent
Authority that person has sufficient reason for remaining outside New Zealand
for more than 26 weeks.
3. A person who is in receipt of an
invalid’s benefit, a widow’s benefit or a domestic purposes benefit
and who is present in Australia but not an Australian resident, shall be
eligible to continue to receive that benefit for up to 4 weeks during a
temporary absence from New Zealand.
Australian benefits in New
Zealand
4. A person who, by virtue of this Agreement or otherwise, is
in receipt of an age pension and who is present but not ordinarily resident in
New Zealand, shall be eligible to continue to receive that benefit for up to 26
weeks during a temporary absence from Australia.
5. A person who, by
virtue of this Agreement or otherwise, is in receipt of a disability support
pension, a wife pension, a widow B pension or a sole parent pension and who is
present but not ordinarily resident in New Zealand, shall be eligible to
continue to receive that benefit for up to 4 weeks during a temporary absence
from Australia.
6. A person who, by virtue of this Agreement or
otherwise, is in receipt of a partner or parenting allowance and who is present
but not ordinarily resident in New Zealand, shall be eligible to continue to
receive that benefit during a temporary absence from Australia for the period
allowed under the legislation of Australia, except where the partner of that
person is in receipt of a disability support pension in which case the person
shall be eligible to receive his or her benefit for up to 4 weeks during a
temporary absence from Australia.
Australian benefits in a Third
Country
7. A person who, by virtue of this Agreement, is in receipt
of an age pension and who is not present or ordinarily resident in New Zealand
shall be eligible to continue to receive that benefit for up to 26 weeks during
a temporary absence from Australia.
8. A person who, by virtue of this
Agreement, is in receipt of a disability support pension, a wife pension, a
widow B pension, or a sole parent pension who is not present or ordinarily
resident in New Zealand shall be eligible to continue to receive that benefit
for up to 4 weeks during a temporary absence from Australia.
9. A person
who, by virtue of this Agreement, is in receipt of a partner or parenting
allowance who is not present or ordinarily resident in New Zealand shall be
eligible to continue to receive that benefit during a temporary absence from
Australia for the period allowed under the legislation of Australia, except
where the partner of that person is in receipt of a disability support pension
in which case the person shall be eligible to receive his or her benefit for up
to 4 weeks during a temporary absence from Australia.
Dual
Payments
10. A person who is in New Zealand shall not be eligible for
any pension, benefit or allowance paid under the social security laws of
Australia where that person would otherwise be eligible for a New Zealand
benefit under this Agreement or any payment (other than an emergency benefit, a
special benefit or a benefit payable in respect of specified costs) under the
social security laws of New Zealand.
11. A person who is in Australia
shall not be eligible for any payment made under the social security laws of New
Zealand where that person is eligible for an Australian benefit under this
Agreement or any payment made under the social security laws of
Australia.
ARTICLE V
1. Subparagraph (e) of paragraph 1 of Article 11 of the Agreement shall
be deleted and substituted by the following:
“(e) is an Australian
resident or is in receipt of a benefit by virtue of Article 8 or Article 8A;
and”
2. Subparagraph (e) of paragraph 2 of Article 11 of the
Agreement shall be deleted and substituted by the
following:
“(e) is ordinarily resident in New Zealand or is in
receipt of a benefit by virtue of Article 7 or Article 8A;
and”
3. Paragraph 5 of Article 11 of the Agreement shall be deleted
and substituted by the following:
“5. Neither Party shall be
required to reimburse the other Party for a benefit paid to a person who is
outside the territory of the Party paying the benefit except:
(a) during
a period of absence as provided in Article 8A; and
(b) in the case of a
benefit which is not paid by virtue of this Agreement and is not paid into the
territory of either Party, for a period up to:
(i) 26 weeks for age
pension and New Zealand superannuation;
(ii) 13 weeks for partner and
parenting allowance payable to the partner of a person in receipt of an age
pension; and
(iii) 4 weeks for all other benefits.”
ARTICLE VI
This Protocol shall enter into force on the first day of the month
following the month in which notes are exchanged by the Parties through the
diplomatic channel notifying each other that all matters as are necessary to
give effect to this Protocol have been finalised.
IN WITNESS WHEREOF,
the undersigned, being duly authorized thereto by their respective Governments,
have signed this Protocol.
DONE in duplicate at Sydney this seventh day
of September 1995.
FOR THE FOR THE GOVERNMENT GOVERNMENT
OF
AUSTRALIA OF NEW ZEALAND
PETER BALDWIN GRAHAM FORTUNE
[Signatures
omitted]
Part
D
Notes dated 2 July 1998 between the Government of Australia and the
Government of New Zealand agreeing that Article 15 of the Agreement is to be
deleted.
No. Legal 98/290
The Department of Foreign Affairs and Trade
presents its compliments to the New Zealand High Commission and has the honour
to refer to the Agreement between the Government of Australia and the Government
of New Zealand on Social Security, signed at Wellington on 19 July 1994, as
amended by the First and Second Protocols to the Agreement between the
Government of Australia and the Government of New Zealand on Social Security of
7 September 1995 (“the Agreement”) and to recent discussions between
the Department of Social Security of Australia and the Department of Social
Welfare of New Zealand concerning the need to amend the Agreement, so as to
remove the provisions relating to benefits for the unemployed.
The
Department of Foreign Affairs and Trade now has the honour to propose the
following amendment to the Agreement:
Article 15 of the Agreement shall be deleted.
If the foregoing proposal is acceptable to the Government of New
Zealand, the Department of Foreign Affairs and Trade has the honour to propose
that this Note and the New Zealand High Commission’s reply to that effect,
shall constitute an Agreement between the Government of Australia and the
Government of New Zealand which shall enter into force on the first day of
September 1998 provided that prior to that date the Government of Australia and
the Government of New Zealand have exchanged further notes through the
diplomatic channel notifying each other that all other matters as are necessary
to give effect to this Agreement have been finalised or if that notification has
not been completed prior to 1 September 1998, on the first day of the second
month after that notification has been completed.
The Department of
Foreign Affairs and Trade avails itself of this opportunity to renew to the New
Zealand High Commission the assurances of its highest
consideration.
CANBERRA
2 July 1998
A/NZ/2/4/2
The New Zealand High Commission presents its compliments to the
Department of Foreign Affairs and Trade and has the honour to refer to the
Department’s Note No Legal 98/290 of 2 July which reads as
follows:
The Department of Foreign Affairs and Trade presents its
compliments to the New Zealand High Commission and has the honour to refer to
the Agreement between the Government of Australia and the Government of New
Zealand on Social Security, signed at Wellington on 19 July 1994, as amended by
the First and Second Protocols to the Agreement between the Government of
Australia and the Government of New Zealand on Social Security of 7 September
1995 (“the Agreement”) and to recent discussions between the
Department of Social Security of Australia and the Department of Social Welfare
of New Zealand concerning the need to amend the Agreement, so as to remove the
provisions relating to benefits for the unemployed.
The Department of
Foreign Affairs and Trade now has the honour to propose the following amendment
to the Agreement:
Article 15 of the Agreement shall be deleted.
If the foregoing proposal is acceptable to the Government of New
Zealand, the Department of Foreign Affairs and Trade has the honour to propose
that this Note and the New Zealand High Commission’s reply to that effect,
shall constitute an Agreement between the Government of Australia and the
Government of Zealand which shall enter into force on the first day of September
1998 provided that prior to that date the Government of Australia and the
Government of New Zealand have exchanged further notes through the diplomatic
channel notifying each other that all other matters as are necessary to give
effect to this Agreement have been finalised or if that notification has not
been completed prior to 1 September 1998, on the first day of the second month
after that notification has been completed.
The New Zealand High
Commission has further the honour to confirm that the above is acceptable to the
Government of New Zealand and that the Department’s Note and this reply
shall constitute an Agreement Between the Government of New Zealand and the
Government of Australia which shall enter into force on the first day of
September 1998 provided that prior to that date the Government of New Zealand
and the Government of Australia have exchanged further notes through the
diplomatic channel notifying each other that all other matters as are necessary
to give effect to this Agreement have been finalised or that if notification has
not been completed prior to 1 September 1998, on the first day of the second
month after that notification has been completed.
The New Zealand High
Commission takes this opportunity to renew to the Department of Foreign Affairs
and Trade the assurances of its highest consideration.
New Zealand High
Commission
CANBERRA
2 July 1998
Note: See section 5.
PART A
RECIPROCAL AGREEMENT ON SOCIAL SECURITY BETWEEN THE
GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF CANADA
The Government of Australia and the Government of
Canada,
Wishing to strengthen the existing friendly relations between the
two countries, and
Resolved to co-operate in the field of social
security,
Have agreed as follows:
PART I—INTERPRETATION AND SCOPE
ARTICLE 1
Interpretation
1. In this Agreement:
“benefit” means, in relation
to a Party, a benefit for which provision is made in the legislation of that
Party, and includes any additional amount, increase or supplement that is
payable, in addition to that benefit, to or in respect of a person who qualifies
for that additional amount, increase or supplement under the legislation of that
Party;
“Canadian creditable period” means a period, or the
total of two or more periods, of residence or contributions which has been or
can be used to acquire the right to a Canadian benefit, but does not include any
period considered under paragraph 2 of Article 10 as a Canadian creditable
period;
“carer’s pension” means a carer’s
pension payable to a spouse under the legislation of
Australia;
“competent authority” means, in relation to
Australia, the Secretary to the Department of Social Security and, in relation
to Canada, the Minister of National Health and
Welfare;
“Government of Canada” means the Government in its
capacity as representative of Her Majesty the Queen in right of Canada and
represented by the Minister of National Health and
Welfare;
“legislation” means, in relation to a Party, the
laws specified in Article 2 in relation to that Party;
“period of
residence in Australia”, in relation to a person, means a period defined
as such in the social security laws of Australia, but does not include any
period deemed pursuant to Article 6 to be a period in which that person was an
Australian resident;
“social security laws”
means:
(i) in relation to Australia, the Social Security Act 1947 as
amended, not including amendments effected by laws made for the purpose of
giving effect to an agreement on social security; and
(ii) in relation to
Canada, the laws specified in subparagraph 1 (b) of Article
2;
“widow “ means, in relation to Australia:
(i) a de
jure widow; or
(ii) a woman who, for not less than 3 years immediately prior
to the death of a man, lived with him on a permanent basis as his de facto
spouse and was wholly or mainly maintained by him,
but does not include
a woman who is the de facto spouse of a man.
2. In the application by a
Party of this Agreement to a person, any term not defined in this Article shall,
unless the context otherwise requires, have the meaning assigned to it in the
social security laws of either Party or, in the event of a conflict of meaning,
by whichever of those laws is the more applicable to the circumstances of that
person.
ARTICLE 2
Legislative Scope
1. Subject to paragraphs 2 and 3, this Agreement shall apply to the
following laws, as amended at the date of signature of this Agreement, and to
any laws that subsequently amend, supplement or replace them:
(a) in
relation to Australia, the Social Security Act 1947 to the extent that
the Act provides for and applies to:
(i) age pensions;
(ii) invalid
pensions;
(iii) wives’ pensions;
(iv) carers’ pensions;
and
(v) pensions payable to widows; and
(b) in relation to
Canada:
(i) the Old Age Security Act and the regulations made thereunder;
and
(ii) the Canada Pension Plan and the regulations made
thereunder.
2. In relation to Australia, the legislation to which this
Agreement applies shall not include any laws made, whether before or after the
date of signature of this Agreement, for the purpose of giving effect to any
agreement on social security.
3. This Agreement shall apply to laws of a
Party which extend the existing legislation of that Party to new categories of
beneficiaries unless the competent authority of that Party communicates in
writing an objection in regard to those laws to the competent authority of the
other Party prior to the commencement of those laws.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is residing or has resided in Canada within
the meaning of the Old Age Security Act or is making or has made contributions
under the Canada Pension Plan
and, where applicable, to any spouse,
dependent or survivor of such a person.
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
PART II—PROVISIONS RELATING TO AUSTRALIAN
BENEFITS
ARTICLE 5
Residence or Presence in Canada or a Third State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in Canada or a third State with which Australia has concluded an
agreement on social security that includes provision for co-operation in the
assessment and determination of claims for benefits; and
(b) is in Australia,
Canada or that third State, that person shall be deemed, for the purposes of
lodging that claim, to be an Australian resident and in Australia on that
date.
2. Paragraph 1 shall not apply to a claimant for a wife’s
pension or carer’s pension who has never been an Australian
resident.
ARTICLE 6
Totalisation in relation to Australian Benefits
1. Where a person has been an Australian resident for a period that
is:
(a) less than the period as an Australian resident required to
qualify him or her under the legislation of Australia for a benefit;
and
(b) equal to or greater than the minimum period identified in accordance
with paragraph 6 for that person,
but has accumulated both a period of
residence in Australia and a Canadian creditable period which, when added
together, are equal to or greater than the minimum period required for
qualification for that benefit by the legislation of Australia, that Canadian
creditable period shall be deemed, for the purposes of a claim for that benefit,
to be a period in which that person was an Australian resident.
2. In the
case of a claim by a person for an invalid pension or pension payable to a
widow, paragraph 1 shall apply only to a Canadian creditable period accumulated
by that person under the Canada Pension Plan.
3. For the purposes of a
claim by a person for a pension payable to a widow, that person shall, subject
to Article 9, be deemed to have accumulated a Canadian creditable period for any
period for which her spouse accumulated a creditable period under the Canada
Pension Plan but any period during which the person and her spouse both
accumulated Canadian creditable periods under the Canada Pension Plan shall be
taken into account once only.
4. For the purposes of paragraph 1, where a
person:
(a) has been an Australian resident for a continuous period which
is less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit; and
(b) has
accumulated a Canadian creditable period in two or more separate periods that
exceed in total the minimum period referred to in subparagraph (a),
the
total of the Canadian creditable periods shall be deemed to be one continuous
period.
5. For the purposes of this Article:
(a) where a period of
residence in Australia and a Canadian creditable period coincide, the period of
coincidence shall be taken into account once only as a period in which that
person was an Australian resident; and
(b) a Canadian creditable period
accumulated under the Old Age Security Act which coincides with a Canadian
creditable period accumulated under the Canada Pension Plan shall be taken into
account once only.
6. The minimum period of residence in Australia which
a person must have accumulated before paragraph 1 applies shall be as
follows:
(a) for an Australian benefit other than an invalid pension, the
minimum period required shall be one year of which at least 6 months must be
continuous; and
(b) for an invalid pension, the minimum period required shall
be 2 years of which at least 6 months must be continuous.
ARTICLE 7
Australian Pro-Rata Benefits
1. Where an Australian benefit is payable whether by virtue of this
Agreement or otherwise to a person who is outside Australia, the rate of that
benefit shall be determined according to the social security laws of Australia
but:
(a) disregarding in the computation of his or her income the
guaranteed income supplement under the Old Age Security Act and the portion of
the spouse’s allowance under that Act equivalent to the guaranteed income
supplement and other Canadian federal, provincial or territorial payments of a
similar character as mutually determined from time to time in letters exchanged
between the Ministers respectively administering the legislation of Australia
and Canada; and
(b) by assessing as income to that person only a proportion
of any other benefit received by that person under the legislation of Canada
calculated by multiplying the number of whole months, plus one, accumulated by
that person in a period of residence in Australia, but not exceeding 300, by the
amount of that benefit and dividing that product by 300.
2. Where an
Australian benefit is payable only by virtue of this Agreement to a person who
is in Australia, the rate of that benefit shall be determined according to the
legislation of Australia but, subject to paragraph 5, disregarding in the
computation of his or her income any Canadian benefit which that person is
entitled to receive, and deducting the amount of that Canadian benefit from the
rate of Australian benefit which would otherwise be payable to that
person.
3. Where the rate of a benefit calculated in accordance with
paragraph 2 is less than the rate of that benefit which would be payable under
paragraph 1 if the person concerned were outside Australia, the first-mentioned
rate shall be increased to an amount equivalent to the second-mentioned
rate.
4. For the purposes of paragraph 3, a comparison of the rates of a
benefit determined in accordance with paragraphs 1 and 2 shall be made as
at:
(a) the date of the first pension pay-day occurring after the date on
which the claim for the benefit was lodged; and
(b) each anniversary of that
pension pay-day for so long as the person concerned is entitled to the benefit,
using, in that comparison, the number of months in the period of residence in
Australia accumulated by the person at the date as at which the comparison is
made.
5. For the purposes of paragraph 2, where one or other, or both, of
a person and his or her spouse are entitled to receive a Canadian benefit, the
total of the Canadian benefits payable to that person and his or her spouse
shall be apportioned equally between them and disregarded in the computation of
their respective incomes, and the amount so apportioned shall be deducted from
the amount of Australian benefit that would otherwise be payable to each of
them.
6. An Australian benefit that is payable only by virtue of this
Agreement to a person who:
(a) was an Australian resident on 8 May 1985;
and
(b) commences to receive that benefit before 1 January 1996
shall
be paid, during any absence of that person from Australia that commences before
1 January 1996, at a rate calculated in accordance with paragraphs 2 and
3.
7. As soon as practicable after an exchange of letters in which
Canadian federal, provincial or territorial payments are mutually determined for
the purposes of subparagraph 1 (a), the Minister administering the legislation
of Australia shall cause to be published in the Commonwealth of Australia
Gazette a notice specifying those Canadian payments.
ARTICLE 8
Wives’ Pensions and Carers’ Pensions
For the purposes of this Agreement, a person who receives an Australian
wife’s pension or carer’s pension due to the fact that the spouse of
that person receives, by virtue of this Agreement, an Australian benefit shall
be deemed to receive that pension by virtue of this Agreement.
ARTICLE 9
Pensions Payable to Widows
Where, under the legislation of Australia, a widow lodges a claim for a
pension payable to a widow, matters which concern her former spouse and affect
that claim shall be considered for the purposes of that claim by reference only
to her last-deceased spouse who was her husband or was a man in respect of whom
she satisfies the conditions specified in subparagraph (ii) of the definition of
“widow” in Article 1.
PART III—PROVISIONS RELATING TO CANADIAN
BENEFITS
ARTICLE 10
Totalising of Periods for Purposes of the Legislation of
Canada
1. Subject to paragraph 3, if a person is not entitled to a benefit on
the basis of his or her Canadian creditable periods, eligibility for that
benefit shall be determined by totalising these periods and those specified in
paragraph 2.
2.
(a) For the purposes of determining eligibility for a
benefit under the Old Age Security Act, a period of residence in Australia shall
be considered as a period of residence in Canada.
(b) For the purposes of
determining eligibility for a benefit under the Canada Pension Plan, a calendar
year which includes a period of residence in Australia of at least 6 calendar
months shall be considered as a year for which contributions have been made
under the Canada Pension Plan.
3. For the purposes of this Article, where
a Canadian creditable period and a period of residence in Australia coincide,
the period of coincidence shall be taken into account once only as a Canadian
creditable period.
ARTICLE 11
Benefits under the Old Age Security Act
1. (a) If a person is entitled to payment of a pension in Canada under
the Old Age Security Act without recourse to the provisions of this Agreement,
but has not accumulated sufficient periods of residence in Canada to qualify for
payment of the pension abroad under that Act, a partial pension shall be paid to
that person outside Canada if the Canadian creditable period accumulated under
the Old Age Security Act and period of residence in Australia, when totalised as
provided in Article 10, are at least equal to the minimum period of residence in
Canada required by the Old Age Security Act for payment of a pension
abroad.
(b) The amount of the pension payable shall, in this case, be
calculated under the provisions of the Old Age Security Act governing the
payment of a partial pension, exclusively on the basis of the periods creditable
under that Act.
2. (a) If a person is not entitled to a pension or
spouse’s allowance under the Old Age Security Act solely on the basis of
periods of residence in Canada, a partial pension or a spouse’s allowance
shall be paid to that person if the Canadian creditable period accumulated under
that Act and period of residence in Australia, when totalised as provided in
Article 10 are at least equal to the minimum period of residence in Canada
required by the Old Age Security Act for payment of a pension or a
spouse’s allowance.
(b) The amount of the pension or the
spouse’s allowance payable shall, in this case, be calculated under the
provisions of the Old Age Security Act governing the payment of a partial
pension or a spouse’s allowance, exclusively on the basis of the periods
creditable under that Act.
3. Notwithstanding any other provision of this
Agreement:
(a) the competent authority of Canada shall not pay a pension
under the Old Age Security Act to a person outside Canada unless his or her
Canadian creditable period accumulated under that Act and period of residence in
Australia, when totalised as provided in Article 10, are at least equal to the
minimum period of residence in Canada required by the Old Age Security Act for
payment of a pension abroad;
(b) a spouse’s allowance shall not be
payable by virtue of this Agreement to a person who has not accumulated a
Canadian creditable period of at least one year under the Old Age Security Act;
and
(c) a spouse’s allowance and a guaranteed income supplement shall
be paid outside Canada only to the extent permitted by the Old Age Security
Act.
ARTICLE 12
Benefits under the Canada Pension Plan
1. If a person is not entitled to a disability pension, disabled
contributor’s child’s benefit, survivor’s pension,
orphan’s pension or death benefit solely on the basis of the periods
creditable under the Canada Pension Plan, but is entitled to that benefit
through the totalising of periods as provided in Article 10, the competent
authority of Canada shall calculate the amount of the earnings-related portion
of such benefit under the provisions of the Canada Pension Plan, exclusively on
the basis of the pensionable earnings under the Canada Pension
Plan.
2. The amount of the flat-rate portion of the benefit payable by
virtue of this Agreement shall, in a case referred to in paragraph 1, be
determined by multiplying:
(a) the amount of the flat-rate portion of the
benefit determined under the Canada Pension
Plan
by
(b) the fraction which represents the ratio of the
periods of contributions to the Canada Pension Plan in relation to the
minimum qualifying period required under the Canada Pension Plan for
entitlement to that benefit,
but in no case shall that fraction exceed
the value of one.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 13
Lodgement of Documents
1. The date on which a claim, notice or appeal concerning the
determination or payment of a benefit under the legislation of one Party is
lodged with the competent authority of the other Party shall be treated, for all
purposes concerning the matter to which it relates, as the date of lodgement of
that document with the competent authority of the first Party.
2. In
relation to Australia, the reference in paragraph 1 to an appeal document is a
reference to a document concerning an appeal that may be made to an
administrative body established by, or administratively for the purposes of, the
social security laws of Australia.
ARTICLE 14
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and a Canadian creditable period; and
(b) any event which is
relevant to that eligibility or entitlement
shall, subject to this
Agreement, be taken into account to the extent that those periods or those
events are applicable in regard to that person and whether they were accumulated
or occurred before or after the date on which this Agreement enters into
force.
2. No provision of this Agreement shall confer any right to
receive payment of a benefit for a period before the date of entry into force of
this Agreement.
3. A death benefit under the Canada Pension Plan shall
not be paid by virtue of this Agreement in respect of a death which occurred
before the date of entry into force of this
Agreement.
4. Where:
(a) the competent authority of Canada pays a
benefit to a person in respect of a past period;
(b) for all or part of that
period, the competent authority of Australia has paid to that person a benefit
under the legislation of Australia; and
(c) the amount of the Australian
benefit would have been varied had the Canadian benefit been paid during that
period,
then
(d) the amount that would not have been paid by the
competent authority of Australia had the Canadian benefit been paid on a
periodical basis from the date to which the arrears of benefit referred to in
subparagraph (a) were paid shall be a debt due by that person to Australia;
and
(e) the competent authority of Australia may determine that the amount,
or any part, of that debt may be deducted from future payments of a benefit to
that person.
5. In paragraph 4, “benefit” means, in relation
to Australia, a pension, benefit or allowance that is payable under the Social
security laws of Australia.
ARTICLE 15
Payment of Benefits
1. The payment outside Australia of an Australian benefit payable by
virtue of this Agreement shall not be restricted by those provisions of the
social security laws of Australia which prohibit the payment of a benefit to a
former Australian resident who returns to Australia and lodges a claim for an
Australian benefit and leaves Australia within 12 months of the date of that
return.
2. A carer’s pension as defined in this Agreement, whether
payable by virtue of this Agreement or otherwise, shall be paid within Australia
and Canada.
3. A benefit payable by virtue of this Agreement shall be
paid without deduction for administrative fees and charges.
ARTICLE 16
Exchange of Information and Mutual Assistance
1. The competent authorities shall:
(a) notify each other of
laws that amend, supplement or replace the social security laws of their
respective Parties promptly after the first-mentioned laws are
made;
(b) communicate to each other any information necessary for the
application of this Agreement or of the respective social security laws of the
Parties concerning all matters arising under this Agreement or under those
laws;
(c) lend their good offices and furnish assistance to one another with
regard to the determination or payment of any benefit under this Agreement or
any other entitlement under the respective social security laws as if the matter
involved the application of their own laws; and
(d) at the request of one to
the other, assist each other in relation to the implementation of agreements on
social security entered into by either of the Parties with third States, to the
extent and in the circumstances specified in administrative arrangements made in
accordance with Article 17.
2. The assistance referred to in paragraph 1
shall be provided free of charge, subject to any arrangement reached between the
competent authorities for the reimbursement of certain types of
expenses.
3. Any information about a person which is transmitted in
accordance with this Agreement to a competent authority shall be protected in
the same manner as information obtained under the social security laws of that
Party and shall be disclosed only in the manner permitted by the laws of that
Party.
4. In no case shall the provisions of paragraphs 1 and 3 be
construed so as to impose on the competent authority of a Party the
obligation:
(a) to carry out administrative measures at variance with the
laws or the administrative practice of that or the other Party; or
(b) to
supply particulars which are not obtainable under the laws or in the normal
course of the administrative practice of that or the other Party.
ARTICLE 17
Administrative Arrangements
The competent authorities of the Parties shall make whatever
administrative arrangements are necessary from time to time to implement this
Agreement.
ARTICLE 18
Language of Communication
In the application of this Agreement, the competent authority of a
Party may communicate directly with the other competent authority in any
official language of that Party.
ARTICLE 19
Understandings with a Province of Canada
The relevant authority of Australia and a province of Canada may
conclude understandings concerning any social security matter within provincial
jurisdiction in Canada provided that those understandings are not inconsistent
with the provisions of this Agreement.
ARTICLE 20
Resolution of Difficulties
1. The competent authorities of the Parties shall resolve, to the
extent possible, any difficulties which arise in interpreting or applying this
Agreement according to its spirit and fundamental principles.
2. The
Parties shall consult promptly at the request of either concerning matters which
have not been resolved by the competent authorities in accordance with paragraph
1.
3. Any dispute between the Parties concerning the interpretation of
this Agreement which has not been resolved or settled by consultation in
accordance with paragraph 1 or 2 shall, at the request of either Party, be
submitted to arbitration.
4. Unless the Parties mutually determine
otherwise, the arbitral tribunal shall consist of three arbitrators, of whom
each Party shall appoint one and the two arbitrators so appointed shall appoint
a third who shall act as president; provided that if the two arbitrators fail to
agree, the President of the International Court of Justice shall be requested to
appoint the president.
5. The arbitrators shall determine their own
procedures.
6. The decision of the arbitrators shall be final and
binding.
ARTICLE 21
Review of Agreement
Where a party requests the other to meet to review this Agreement,
representatives of the Parties shall meet no later than 6 months after that
request was made and, unless the Parties otherwise mutually determine, their
meeting shall be held in the territory of the Party to which that request was
made.
PART V—FINAL PROVISIONS
ARTICLE 22
Entry into Force and Termination
1. This Agreement shall enter into force on a date specified in notes
exchanged by the Parties through the diplomatic channel notifying each other
that all matters as are necessary to give effect to this Agreement have been
finalised.
2. Subject to paragraph 3, this Agreement shall remain in
force until the expiration of 12 months from the date on which either Party
receives from the other written notice through the diplomatic channel of the
intention of the other Party to terminate this Agreement.
3. In the event
that this Agreement is terminated in accordance with paragraph 2, the Agreement
shall continue to have effect in relation to all persons who by virtue of this
Agreement:
(a) at the date of termination, are in receipt of benefits;
or
(b) prior to the expiry of the period referred to in that paragraph, have
lodged claims for, and would be entitled to receive, benefits.
IN WITNESS
WHEREOF, the undersigned, being duly authorised thereto by their respective
Governments, have signed this Agreement.
DONE in two copies at Canberra
this 4th day of July 1988 in the English and French languages, each text being
equally authoritative.
BEN HUMPHREYS DON MAZANKOWSKI
FOR THE
GOVERNMENT FOR THE GOVERNMENT
OF AUSTRALIA OF CANADA
[Signatures
omitted]
PART B
PROTOCOL AMENDING THE RECIPROCAL AGREEMENT ON SOCIAL SECURITY BETWEEN
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF CANADA SIGNED AT CANBERRA ON
THE 4TH DAY OF JULY 1988.
The Government of Australia and the Government
of Canada
Desiring to amend the Reciprocal Agreement on Social Security
signed by them at Canberra on the 4th day of July 1988 (in this
Protocol referred to as “the Agreement”)
Have agreed as
follows:
ARTICLE 1
Article 1 of the Agreement is amended by omitting from paragraph 1 the
definition of “widow” and substituting the following definition of
“widowed person”:
“ ‘widowed person’ means,
in relation to Australia, a person who:
(i) stops being a married person
or becomes a single person because of the death of the person’s spouse;
or
(ii) is a class B widow because of the death of her legal husband or
because she is a dependent female,
but does not include a person who has
a new spouse.”
ARTICLE 2
Article 2 of the Agreement is amended by omitting from subparagraph
1(a)(v) the word “widows” and substituting the words “widowed
persons”.
ARTICLE 3
Article 6 of the Agreement is amended by:
(a) omitting from
paragraphs 2 and 3 the word “widow” where appearing and substituting
the words “widowed person”;
(b) omitting from paragraph 3 the
word “her” where first appearing and substituting the words
“the persons”;
(c) omitting from paragraph 3 the word
“her” where second appearing and substituting the word
“the”; and
(d) omitting paragraph 6 and substituting the
following paragraph:
“6. The minimum period to be taken into
account for the purposes of subparagraph 1(b) shall be as
follows:
(a) for a person who is residing outside
Australia;
(i) in regard to a benefit other than an invalid pension, a
minimum period of residence in Australia of one year of which at least 6 months
must be continuous; and
(ii) in regard to an invalid pension, a minimum
period of residence in Australia of 2 years of which at least 6 months must be
continuous; and
(b) for an Australian resident;
(i) in regard to a
benefit other than an invalid pension, a minimum period as an Australian
resident of one year of which at least 6 months must be continuous;
and
(ii) in regard to an invalid pension, a minimum period as an Australian
resident of 2 years of which at least 6 months must be
continuous.”
ARTICLE 4
Article 9 of the Agreement is deleted and the following Article is
substituted:
ARTICLE 9
Pensions Payable to Widowed Persons
Where, under the legislation of Australia, a person lodges a claim for
a pension payable to a widowed person, matters which concern that person’s
former spouse and affect that claim shall be considered for the purposes of that
claim by reference only to the last-deceased spouse of that
person.
ARTICLE 5
Article 15 of the Agreement is amended by:
(a) omitting
paragraph 2;
(b) renumbering paragraph 3 as paragraph 4;
(c) inserting the
following new paragraphs 2 and 3:
“2. The benefits payable by
virtue of this Agreement and listed in this paragraph shall be payable within
and outside Australia and Canada:
(a) for Australia:
(i) age
pension;
(ii) invalid pension;
(iii) wive’s pension;
(iv) a
pension payable to a widowed person who became a widowed person while both the
person and the spouse were Australian residents;
(v) Class “B”
widow’s pension; and
(b) for Canada:
subject to
subparagraph 3(c) of Article 11, the benefits referred to in the legislation of
Canada.
3. A pension payable to a widowed person or a carer’s
pension, whether payable by virtue of this Agreement or otherwise, shall be paid
in Australia and Canada with no limitation by time.
ARTICLE 6
This Protocol, which shall form an integral part of the Agreement,
shall enter into force on a date specified in notes exchanged by the Parties
through the diplomatic channel notifying each other that all matters as are
necessary to give effect to this Protocol have been finalized and, thereupon,
this Protocol shall have effect as from the date on which the Agreement entered
into force.
IN WITNESS WHEREOF, the undersigned, being duly
authorized thereto by their respective Governments, have signed this
Protocol.
DONE in two copies at Ottawa, this 11 day of October 1990, in
the English and French languages, each text being equally
authoritative.
J. HUMPHREYS PERRIN BEATTY
FOR THE GOVERNMENT FOR
THE GOVERNMENT
OF AUSTRALIA OF CANADA
[Signatures
omitted]
Note: See section 5.
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND
SPAIN
Wishing to strengthen the existing friendly relations between the two
countries, and
Resolved to co-operate in the field of social
security;
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. In this Agreement, unless the context otherwise
requires:
“benefit” means in relation to a Party, a benefit
for which provision is made in the legislation of that Party, and includes any
additional amount, increase or supplement that is payable, in addition to that
benefit, to or in respect of a person who qualifies for that additional amount,
increase or supplement under the legislation of that
Party;
“carer’s pension” means a carer’s pension
payable to a spouse under the legislation of Australia;
“Competent
Authority” means; in relation to Australia: the Secretary to the
Department of Social Security; and, in relation to Spain: the Department of
Labour and Social Security;
“Competent Institution” means;
in relation to Australia: the Competent Authority for Australia; and in relation
to Spain: the Institution responsible under the legislation of Spain for dealing
with a claim for a Spanish benefit;
“Institution” means; in
relation to Australia: the Competent Authority for Australia; and in relation to
Spain: the agency or authority responsible for the implementation of the
legislation of Spain;
“legislation” means, in relation to a
Party, the laws specified in Article 2 in relation to that
Party;
“period of residence in Australia”, in relation to a
person, means a period defined as such in the legislation of Australia, but does
not include any period deemed pursuant to Article 8 to be a period in which that
person was an Australian resident;
“Spanish creditable
period” means a period, or the total of two or more periods, of
contributions which has been or can be used to acquire the right to a Spanish
benefit, but does not include any period considered under paragraph 1 of Article
10 as a Spanish creditable period;
“widow” means, in
relation to Australia: a de jure widow but does not include a woman who is the
de facto spouse of a man.
2. In the application by a Party of this
Agreement in relation to a person, any term not defined in this Article shall,
unless the context otherwise requires, have the meaning assigned to it in the
legislation of either Party or, in the event of a conflict of meaning, by
whichever of those laws is the more applicable to the circumstances of that
person.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, supplement or replace them:
(a) in relation to
Australia: the Social Security Act 1947 in so far as the Act provides for and in
relation to the following benefits:
(i) age pensions;
(ii) invalid
pensions;
(iii) wives’ pensions;
(iv) carer’s pensions;
and
(v) pensions payable to widows,
(b) in relation to Spain: the
legislation relating to the General Scheme and the Special Schemes of the Social
Security system as they relate to the following benefits:
(i) benefits
for temporary incapacity for work in cases of common illness, maternity or non-
industrial accident;
(ii) invalidity;
(iii) old age;
(iv) death and
survivors; and
(v) unemployment benefits.
2. Notwithstanding the
provisions of paragraph 1 the legislation of Australia shall not include any
laws made, whether before or after the date of signature of this Agreement, for
the purpose of giving effect to any reciprocal agreement on social security
entered into by either Party.
3. This Agreement shall apply to laws which
extend the legislation of either Party to new categories of beneficiaries only
if the two Parties so agree in a Protocol to this Agreement.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is or has been subject to the legislation of
Spain,
and where applicable, to any spouse, dependant or survivor of such
a person.
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
ARTICLE 5
Application of Spanish Legislation
1. Where an employee or a self-employed worker who is covered by the
Social Security Schemes of Spain is sent by his firm, or goes, to undertake
temporary work in Australia he or she shall continue to be covered by those
Social Security Schemes so long as the period of the proposed work does not
exceed 5 years.
2. If, owing to unforeseen circumstances, the period of
the work extends beyond 5 years, this extension may be recognised by the
Competent Authority of Spain.
PART II—PROVISIONS RELATING TO AUSTRALIAN
BENEFITS
ARTICLE 6
Residence or Presence in Spain or a Third State
1. Where a person would be qualified under the legislation of Australia or
by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in Spain or a third State with which Australia has concluded an
agreement on social security that includes provision for co-operation in the
assessment and determination of claims for benefits; and
(b) is in Australia,
Spain or that third State, that person shall be deemed, for the purposes of
lodging that claim, to be an Australian resident and in Australia on that
date.
2. Paragraph 1 shall not apply to a claimant for a wife’s
pension or carer’s pension who has never been an Australian
resident.
ARTICLE 7
Spouse-related Australian Benefits
For the purposes of this Agreement, a person who receives an Australian
benefit due to the fact that the spouse of that person receives by virtue of
this Agreement another Australian benefit, shall be deemed to receive that
first-mentioned benefit by virtue of this Agreement.
ARTICLE 8
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify him
or her, on that ground, under the legislation of Australia for that Australian
benefit; and
(b) a period of residence in Australia equal to or greater than
the minimum period identified in accordance with paragraph 4 for that
person;
and has accumulated a Spanish creditable period then for the
purposes of a claim for that Australian benefit, that Spanish creditable period
shall be deemed, only for the purposes of meeting any minimum qualifying periods
for that benefit set out in legislation of Australia, to be a period in which
that person was an Australian resident.
2. For the purposes of paragraph
1, where a person:
(a) has been an Australian resident for a continuous
period which is less than the minimum continuous period required by the
legislation of Australia for entitlement of that person to a benefit;
and
(b) has accumulated a Spanish creditable period in two or more separate
periods that equals or exceeds in total the minimum period referred to in
subparagraph (a),
the total of the Spanish creditable periods shall be
deemed to be one continuous period.
3. For all purposes of this Article,
where a period by a person as an Australian resident and a Spanish creditable
period accumulated by that person coincide, the period of coincidence shall be
taken into account once only by Australia as a period as an Australian
resident.
4. The minimum period of residence in Australia to be taken
into account for the purposes of paragraph 1 shall be as follows:
(a) for
the purposes of an Australian benefit that is payable to a person residing
outside Australia, the minimum period required shall be one year, of which at
least six months must be continuous; and
(b) for the purposes of an
Australian benefit that is payable to an Australian resident there shall be no
minimum period of residence in Australia.
ARTICLE 9
Calculation of Australian Benefits
1. Where an Australian benefit is payable by virtue of this Agreement,
to a person outside of Australia, the rate of that benefit shall be determined
according to the legislation of Australia.
2. Notwithstanding the
provisions of the previous paragraph, when assessing the income of a person for
the purposes of calculating the rate of benefit only a proportion of any Spanish
benefit (or benefits) shall be regarded as income.
That proportion shall
be calculated by multiplying the total number of months of that person’s
period of residence in Australia, which shall not exceed 300, by the amount of
that Spanish benefit and dividing that product by 300.
3. A person who is
in receipt of an Australian benefit under the legislation of Australia, shall be
entitled to the concessional assessment of income set out in paragraph 2 of this
Article for any period during which the rate of that person’s Australian
benefit is proportionalised under the legislation of Australia.
4. Where
an Australian benefit is payable only by virtue of this Agreement to a person
who is in Australia and until the person becomes eligible under Australian
domestic legislation the amount of that benefit shall be determined as
follows:
(a) according to the legislation of Australia, but without
taking into account in the computation of his or her income any Spanish benefit
which that person is entitled to receive, and
(b) by deducting the amount of
that Spanish benefit from the amount of the Australian benefit to which that
person would otherwise be entitled.
5. Where a married person, or that
person and his or her spouse are in receipt of a Spanish benefit or benefits, it
shall be deemed, for the purposes of implementing paragraph 4 and the
legislation of Australia, that each one of them receives one half of the amount
of the benefit or the total of the two benefits as the case may be.
6. If
a person is unable to receive an Australian benefit as a result of the
provisions of paragraph 4, or because the person did not claim the said benefit,
it shall be deemed that if that person’s spouse claims a benefit under the
legislation of Australia, that the person receives that benefit.
7. The
reference in paragraph 6 to payment of a benefit under the legislation of
Australia to the spouse, means the payment of any benefit, pension or allowance
payable under the Social Security Act 1947 as amended from time to time
and whether payable by virtue of this Agreement or otherwise.
PART III—PROVISIONS RELATING TO SPANISH
BENEFITS
ARTICLE 10
Totalization for Spain
1. Where this Agreement applies and there is a Spanish creditable
period that is:
(a) less than the period necessary to give a claimant
entitlement to the benefit claimed under Spanish legislation; and
(b) equal
to or greater than the minimum period mentioned in paragraph 3 for that
benefit,
then any period of residence in Australia by the contributor to
whom that Spanish creditable period was credited shall be deemed to be a Spanish
creditable period.
2. For the purposes of this Article, where a Spanish
creditable period and period of residence in Australia coincide, the period of
coincidence shall be taken into account once only as a Spanish creditable
period.
3. The minimum Spanish creditable period to be taken into
consideration for the purposes of paragraph 1 shall be one year. However, where
the Spanish creditable period is shorter than one year and the period of
residence in Australia is also shorter than one year, but with the addition of
both periods an entitlement to a Spanish benefit is obtained, they shall both be
taken into account.
4. For the purposes of this Article the upper age
limit for a woman, set in the definition of a period of residence in Australia
in the legislation of Australia shall be raised from 60 years to 65 years for
the purposes of claiming an old age pension under the legislation of
Spain.
ARTICLE 11
Sickness Benefits
For the granting of benefits in case of sickness of a worker the
totalization of periods referred to in Article 10 shall be taken into account,
if necessary, without the condition imposed by subparagraph 1(b) of Article
10.
ARTICLE 12
Old age, invalidity and survivors pensions
1. Entitlement by virtue of this Agreement to old age, invalidity or
death and survivors benefit under the legislation of Spain shall be determined
as follows:
(a) the Competent Institution shall determine, according to
its own provisions, the amount of the benefit corresponding to the duration of
the periods of insurance completed only under its legislation.
(b) The
Competent Institution shall also examine the entitlement considering the
provisions of Article 10. If, in application of it, entitlement to pension is
obtained, the following rules shall apply for the calculation of the
amount:
(i) the Competent Institution shall determine the theoretical
pension to which the claimant would be entitled as if all the periods of
insurance and/or residence totalized had been accomplished under its
legislation;
(ii) the amount of the pension effectively due to the claimant,
shall be that obtained after reducing the amount of the theoretical pension to a
pro-rata pension, according to the period of insurance completed exclusively
under the legislation of Spain and all the periods of insurance and residence
completed in the two Parties; and
(iii) in no case shall the sum of the
Spanish creditable periods and the periods of residence in Australia be taken to
exceed the maximum period established by the legislation of Spain in regard to
the benefit in question.
2. Once the entitlement of the claimant has been
established according to subparagraphs 1(a) and (b) the Competent Institution
shall assign the most favourable benefit.
ARTICLE 13
Special Scheme Benefits
If the legislation of Spain provides that in the determination of
entitlement to or the granting of certain benefits there is a requirement that
the Spanish creditable periods have been completed in an activity subject to a
Special Scheme or, as the case may be, in a specific activity or specific
employment, periods of residence in Australia completed under the legislation of
Australia shall be taken into account when they have been accomplished in an
equivalent scheme or in the same activity or in the same
employment.
ARTICLE 14
Determination of Regulating Base
When, for determining the Regulating Base for benefits, periods of
residence in Australia must be taken into account, the Spanish Competent
Institution shall determine that Regulating Base on the minimum contribution
bases in force in Spain, during that period or fraction of period, for the
workers of the same category of professional qualification as the person
concerned last had according to Spanish legislation.
ARTICLE 15
Situacion de alta
An Australian resident or a person in receipt of an Australian benefit
shall be deemed to be validly insured (situacion de alta o asimilada) for the
purposes of entitlement to benefit under the legislation of Spain.
ARTICLE 16
Unemployment Benefits
1. For the granting of unemployment benefits the totalization of
periods referred to in Article 10 shall, if necessary, be taken into account
without the condition imposed by subparagraph 1(b) of that
Article.
2. Notwithstanding the provisions of Article 20, unemployment
benefits paid pursuant to paragraph 1 shall be paid during the periods
established under the legislation of Spain and while the unemployed person
resides in the territory of Spain.
ARTICLE 17
Equivalence of Events
The continuing entitlement to a Spanish benefit shall be subject to the
legislation of Spain and events which occur in Australia relevant to that
continuing entitlement will be considered as if they had occurred in
Spain.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 18
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by a
Party by virtue of this Agreement or otherwise, may be lodged in the territory
of either of the Parties in accordance with administrative arrangements made
pursuant to Article 22 at any time after the Agreement enters into
force.
2. The date on which a claim, notice or appeal referred to in
paragraph 1 is lodged with the Competent Institution of the other Party shall be
treated, for all purposes concerning the matter to which it relates, as the date
of lodgement of that document with the Competent Institution of the first
Party.
3. In relation to Australia, the reference in paragraph 2 to an
appeal document is a reference to a document concerning an appeal that may be
made to an administrative body established by, or administratively for the
purposes of, the social security laws of Australia.
ARTICLE 19
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and a Spanish creditable period; and
(b) any event or fact which is
relevant to that entitlement,
shall, subject to this Agreement, be taken
into account in so far as those periods or those events are applicable in regard
to that person no matter when they were accumulated or occurred.
2. The
commencement date for payment of a benefit payable by virtue of this Agreement
shall be determined in accordance with the legislation of the Party concerned
but in no case shall that date be a date earlier than the date on which this
Agreement enters into force.
3. (a) Where a person receives or will
receive a benefit from one Party and has received an overpayment of a benefit
from the other Party, the Institution of the latter Party may request the
Institution of the former Party to withhold the amount of the overpayment from
the arrears of benefits payable by the former Party and transfer them to the
Institution of the latter Party to recoup the amount of the
overpayment.
(b) The Institution receiving a request under subparagraph
(a) shall take the action set out in the Administrative Arrangement, as provided
for in Article 22, to recoup the amount of the overpayment and to transfer it to
the other Institution.
(c) The amount of the overpayment shall be a debt
due by the person receiving it to the Party that paid it.
4. A reference
in paragraph 3 to a benefit, in relation to Australia, means a pension, benefit
or allowance that is payable under the Social Security Act 1947 of
Australia as amended from time to time, and in relation to Spain, means any
pension, benefit, allowance or advance made by an Institution including
overpayments.
ARTICLE 20
Payment of Benefits
1. The benefits payable by virtue of this Agreement and listed in this
paragraph shall be payable within and outside the territories of both
Parties:
(a) for Australia: - age pensions,
- invalid
pensions,
- wife’s pensions, and
- pensions payable to widows for
persons who are Class B widows or Class A widows who were widowed in
Australia.
(b) for Spain: - invalidity,
- old age, and
- death
and survivors.
2. The benefits payable by virtue of this Agreement or
otherwise and listed in this paragraph shall be paid in Australia and Spain with
no limitation by time:
(a) for Australia: - carer’s pensions,
and
- pensions payable to widows who are not included in subparagraph
1(a).
(b) for Spain: - invalidity,
- old age, and
- death and
survivors.
3. If a Party imposes legal or administrative
restrictions on the transfer of its currency abroad, both Parties shall adopt
measures as soon as practicable to guarantee the rights to payment of benefits
derived under this Agreement. Those measures shall operate retrospectively to
the time the restrictions were imposed.
4. A benefit payable by a party
by virtue of this Agreement shall be paid by that Party, whether the beneficiary
is in the territory of the other Party or outside the respective territories of
both Parties, without deduction for government administrative fees and charges
for processing and paying that benefit.
5. The payment outside Australia
of an Australian benefit that is payable by virtue of this Agreement shall not
be restricted by those provisions of the legislation of Australia which prohibit
the payment of a benefit to a former Australian resident who returns to
Australia becoming again an Australian resident, and lodges a claim for an
Australian benefit and leaves Australia within 12 months of the date of that
return.
ARTICLE 21
Exchange of Information and Mutual Assistance
1. The Competent Authorities shall:
(a) advise each other of
laws that amend, supplement or replace the legislation of their respective
Parties, promptly after the first-mentioned laws are made;
(b) advise each
other directly of internal action to implement this Agreement and any
Arrangement adopted for its implementation; and
(c) advise each other of any
technical problems encountered when applying the provisions of this Agreement or
of any Arrangement made for its implementation.
2. The Institutions of
both Parties shall:
(a) advise each other of any information necessary
for the application of this Agreement or of the respective legislation of the
Parties concerning all matters within their area of competence arising under
this Agreement or under those laws;
(b) assist one another in relation to the
determination of any benefit under this Agreement or the respective legislation
within the limits of and according to their own laws; and
(c) at the request
of one to the other, assist each other in relation to the implementation of
agreements on social security entered into by either of the Parties with third
States, to the extent and in the circumstances specified in administrative
arrangements made in accordance with Article 22.
3. The assistance
referred to in paragraphs 1 and 2 shall be provided free of charge, subject to
any arrangement reached between the Competent Authorities and Institutions for
the reimbursement of certain types of expenses.
4. Any information about
a person which is transmitted in accordance with this Agreement to an
Institution shall be protected in the same manner as information obtained under
the legislation of that Party.
5. In no case shall the provisions of
paragraphs 1, 2 and 4 be construed so as to impose on the Competent Authority or
Institution of a Party the obligation:
(a) to carry out administrative
measures at variance with the laws or the administrative practice of that or the
other Party; or
(b) to supply particulars which are not obtainable under the
laws or in the normal course of the administration of that or the other
Party.
6. In this Article the meaning of “legislation” is not
confined by any restrictions imposed by Article 2.
7. In the application
of this Agreement, the Competent Authority and the Institutions of a party may
communicate with the other in the official language of that Party.
ARTICLE 22
Administrative Arrangements
The Competent Authorities of the Parties shall make whatever
administrative arrangements are necessary in order to implement this
Agreement.
ARTICLE 23
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose no later than 6 months after that request
was made and, unless the Parties otherwise arrange, their meeting shall be held
in the territory of the Party to which that request was made.
PART V—FINAL PROVISIONS
ARTICLE 24
Entry Into Force and Termination
1. This Agreement shall enter into force one month after an exchange of
notes by the Parties through the diplomatic channel notifying each other that
all constitutional or legislative matters as are necessary to give effect to
this Agreement have been finalized.
2. Subject to paragraph 3, this
Agreement shall remain in force until the expiration of 12 months from the date
on which either Party receives from the other a note through the diplomatic
channel indicating the intention of the other Party to terminate this
Agreement.
3. In the event that this Agreement is terminated in
accordance with paragraph 2, the Agreement shall continue to have effect in
relation to all persons who:
(a) at the date of termination, are in
receipt of benefits; or
(b) prior to the expiry of the period referred to in
that paragraph, have lodged claims for, and would be entitled to receive,
benefits,
by virtue of this Agreement.
IN WITNESS WHEREOF, the
undersigned, being duly authorised thereto by their respective Governments, have
signed this Agreement.
DONE in 2 copies at CANBERRA this 10th day of
FEBRUARY 1990 in the Spanish and English languages, each text being equally
authoritative.
FOR AUSTRALIA: FOR SPAIN:
BRIAN HOWE JOSE LUIS
PARDOS
[Signatures omitted]
Note: See section 5.
AGREEMENT BETWEEN AUSTRALIA AND MALTA ON SOCIAL
SECURITY
Australia and Malta,
Wishing to strengthen the existing friendly
relations between the two countries, and
Resolved to co-ordinate their
social security systems;
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Interpretation
1. In this Agreement, unless the context otherwise
requires:
“applicable rate” means, in relation to Malta, the
rate that would otherwise have been payable to a claimant had the number of
totalised contributions been all paid or credited under the legislation of
Malta;
“benefit” means, in relation to a Party, a benefit
for which provision is made in the legislation of that Party, and includes any
additional amount, increase or supplement that is payable, in addition to that
benefit, to or in respect of a person who qualifies for that additional amount,
increase or supplement under the legislation of that
Party;
“Competent Authority” means, in relation to
Australia, the Secretary of the Department of Social Security and, in relation
to Malta, the Director of Social Security;
“Competent
Institution” means, in relation to Australia the Competent Authority for
Australia and in relation to Malta, the Competent Authority for
Malta;
“legislation” means, in relation to a Party, the laws
specified in Article 2 in relation to that Party;
“period of
insurance” means, the period of contributions or any equivalent period
which has been or can be used to acquire the right to a benefit under the
legislation of Malta, but does not include any period deemed pursuant to Article
9 to be a period of insurance;
“period of residence in
Australia”, in relation to a person, means a period defined as such in the
legislation of Australia, but does not include any period deemed pursuant to
Article 7 to be a period in which that person was an Australian
resident;
“territory” means, in relation to Australia,
Australia as defined in the legislation of Australia and in relation to Malta,
Malta as defined in the Constitution of Malta; and
“widow”
means, in relation to Australia, a de jure widow but does not include a woman
who is the de facto spouse of a man.
2. In the application by a Party of
this Agreement in relation to a person, any term not defined in this Article
shall, unless the context otherwise requires, have the meaning assigned to it in
the legislation of either Party or, in the event of a conflict of meaning, by
whichever of those laws is the more applicable to the circumstances of that
person.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, supplement or replace them:
(a) in relation to
Australia: the Social Security Act 1947 in so far as the Act provides
for, applies to or affects:
(i) age pensions;
(ii) invalid
pensions;
(iii) wives’ pensions; and
(iv) pensions payable to
widows; and
(b) in relation to Malta: the Social Security Act,
1987 as it provides for, applies to or affects:
(i) contributory
pensions in respect of retirement;
(ii) contributory pensions in respect of
invalidity;
(iii) contributory pensions in respect of widowhood;
and
(iv) non-contributory assistance and pensions.
2. Notwithstanding
the provisions of paragraph 1 the legislation of either Party shall not include
any laws made at any time for the purpose of giving effect to any reciprocal
agreement on Social Security entered into by either Party.
3. This
Agreement shall apply to laws which extend the legislation of either Party to
new categories of beneficiaries only if the two Parties so agree in a Protocol
to this Agreement.
4. In respect of non-contributory assistance and
pensions payable under the legislation of Malta, a citizen of Australia shall
have the same rights as a citizen of Malta.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is or has been an insured person under the
legislation of Malta,
and, where applicable, to other persons in regard
to the rights they derive from the person described above.
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
PART II—PROVISIONS RELATING TO AUSTRALIAN
BENEFITS
ARTICLE 5
Residence or Presence in Malta or a Third State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in the territory of Malta or a third State with which Australia has
concluded an agreement on social security that includes provision for
co-operation in the assessment and determination of claims for benefits;
and
(b) is in Australia, or the territory of Malta or that third
State,
that person shall be deemed, for the purposes of lodging that
claim, to be an Australian resident and in Australia on that
date.
2. Paragraph 1 shall not apply to a claimant for a wife’s
pension who has never been an Australian resident.
ARTICLE 6
Spouse Related Australian Benefits
For the purposes of this Agreement, a person who receives from
Australia an Australian benefit due to the fact that the spouse of that person
receives, by virtue of this Agreement, another Australian benefit shall be
deemed to receive that first-mentioned benefit by virtue of this
Agreement.
ARTICLE 7
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify him
or her, on that ground, under the legislation of Australia for a benefit;
and
(b) a period of residence in Australia equal to or greater than the
minimum period identified in accordance with paragraph 4 for that
person,
and has accumulated a period of insurance, then for the purposes
of a claim for that Australian benefit, that period of insurance shall be
deemed, only for the purposes of meeting any minimum qualifying periods for that
benefit set out in the legislation of Australia, to be a period in which that
person was an Australian resident.
2. For the purposes of paragraph 1,
where a person:
(a) has been an Australian resident for a continuous
period which is less than the minimum continuous period required by the
legislation of Australia for entitlement of that person to a benefit;
and
(b) has accumulated a period of insurance in two or more separate periods
that equals or exceeds in total the minimum period referred to in subparagraph
(a),
the total of the periods of insurance shall be deemed to be one
continuous period.
3. For all purposes of this Article, where a period by
a person as an Australian resident and a period of insurance coincide, the
period of coincidence shall be taken into account once only by Australia as a
period as an Australian resident.
4. The minimum period of residence in
Australia which a person must have accumulated before paragraph 1 applies shall
be as follows:
(a) for the purposes of an Australian benefit that is
payable to a person residing outside Australia, the minimum period required
shall be one year, of which at least 6 months must be continuous; and
(b) for
the purposes of an Australian benefit that is payable to an Australian resident,
no minimum period shall be required.
5. For the purposes of a claim by a
person for a pension payable to a widow, that person shall be deemed to have
accumulated a period of insurance for any period for which her spouse
accumulated a period of insurance but any period during which the person and her
spouse both accumulated periods of insurance shall be taken into account once
only.
6. Where a person receives in Malta a contributory pension in
respect of retirement by virtue of this Agreement, Australia shall, for the
purposes of this Article, regard the period during which that person receives
that pension, up to the age of 65, as a period of insurance.
ARTICLE 8
Calculation of Australian Benefits
1. Subject to paragraph 2, where an Australian benefit is payable,
whether by virtue of this Agreement or otherwise, to a person who is outside
Australia the rate of that benefit shall be determined according to the
legislation of Australia but when assessing the income of that person for the
purposes of calculating the rate of the Australian benefit only a proportion of
any Maltese contributory pension in respect of retirement, invalidity or
widowhood which is received by that person shall be regarded as income. That
proportion shall be calculated by multiplying the number of whole months
accumulated by that person in a period of residence in Australia (not exceeding
300) by the amount of that Maltese benefit and dividing that product by
300.
2. A person referred to in paragraph 1 shall only be entitled to
receive the concessional assessment of income described in that paragraph for
any period during which the rate of that person’s Australian benefit is
proportionalised under the legislation of Australia.
3. Where an
Australian benefit is payable, whether by virtue of this Agreement or otherwise
to a person who is resident in the territory of Malta, Australia shall
disregard, when assessing the income of that person any non-contributory
assistance and pension paid to that person by Malta.
4. Subject to the
provisions of paragraph 5, where an Australian benefit is payable only by virtue
of this Agreement to a person who is in Australia, the rate of that benefit
shall be determined by:
(a) calculating that person’s income
according to the legislation of Australia but disregarding in that calculation
the Maltese benefit received by that person;
(b) deducting the amount of the
Maltese benefit received by that person from the maximum rate of that Australian
benefit; and
(c) applying to the remaining benefit obtained under
subparagraph (b) the relevant rate calculation set out in the legislation of
Australia, using as the person’s income the amount calculated under
subparagraph (a).
5. Where a married person is, or both that person and
his or her spouse are, in receipt of a Maltese benefit or benefits, each of them
shall be deemed, for the purpose of paragraph 4 and for the legislation of
Australia, to be in receipt of one half of either the amount of that benefit or
the total of both of those benefits, as the case may be.
6. If a person
would receive an Australian benefit except for the operation of paragraph 4 or
except for that person’s failure to claim the benefit, then for the
purposes of a claim by that person’s spouse for a payment under the
legislation of Australia that person shall be deemed to receive that
benefit.
7. The reference in paragraph 6 to a payment under the
legislation of Australia to the spouse of a person is a reference to a payment
of any benefit, pension or allowance payable under the Social Security Act
1947 as amended from time to time and whether payable by virtue of this
Agreement or otherwise.
PART III—PROVISIONS RELATING TO MALTESE
BENEFITS
ARTICLE 9
Totalisation for Malta
1. Where this Agreement applies and there is a period of insurance that
is:
(a) less than the period necessary to give a claimant entitlement to
the benefit claimed under the legislation of Malta; and
(b) equal to or
greater than the minimum period mentioned in paragraph 3 for that
benefit,
then any period of residence in Australia by the contributor to
whom that period of insurance was credited shall be deemed to be a period of
insurance.
2. For the purposes of this Article, where a period of
insurance and a period of residence in Australia coincide, the period of
coincidence shall be taken into account once only as a period of
insurance.
3. The minimum period of insurance to be taken into
consideration for purposes of paragraph 1 shall be 52 paid contributions.
However, subject to paragraph 5, where the period of insurance, not being less
than 52 paid contributions, does not entitle a person to a Maltese benefit, but
the period of insurance in Malta and the period of residence in Australia
together entitle such person to a Maltese benefit, they shall be taken into
account.
4. The provisions of this Article shall not apply in the case of
a Two-Thirds Pension (Retirement) or a Survivor’s Pension (Widowhood)
unless:
(a) in the case of a Two-Thirds Pension, the person concerned
would have paid at least 156 contributions under the legislation of Malta after
the 22nd January, 1979; and
(b) in the case of a Survivor’s Pension,
the husband of the widow concerned would have paid at least 156 contributions
under the legislation of Malta after the 22nd January, 1979.
5. For the
purposes of a claim by a person for a contributory widow’s pension the
contributor, provided the contributor meets the requirements of subparagraph
1(b), shall be deemed to have also accumulated a period of residence in
Australia for any period for which the claimant accumulated a period of
residence in Australia but any period during which the contributor and the
claimant both accumulated periods of residence in Australia shall be taken into
account once only.
ARTICLE 10
Calculation of Maltese Benefits
1. Where Malta pays non-contributory assistance or pension by virtue of
this Agreement, the rate of that benefit shall be determined according to the
legislation of Malta.
2. Where a contributory benefit is payable by Malta
to a claimant by virtue of this Agreement the rate of that benefit shall be
calculated as follows:
(a) in the case of a pension in respect of
retirement other than a Two-Thirds Pension, by multiplying the applicable rate
of that pension attributable to the claimant by the number of reckonable
contributions (not exceeding 2400) on which that pension would have otherwise
been calculated under the legislation of Malta and dividing the product by the
number of totalised contributions aggregated under Article 9 (not exceeding
2400);
(b) in the case of a Two-Thirds Pension, the rate of that pension
shall be calculated according to the following formula:
P.I. x 2 x ( TI + T2 ) x (
C1 + C2 )
( Y 10) (T1
T2)
600
but that pension shall not be payable if the formula
( TI + T2 )
( Y 10 )
2
gives a result that is less than 15
where:
P.I. = the
claimant’s pensionable income or re-assessed pensionable income (as the
case may be) according to the legislation of Malta;
C1 = the
number of reckonable contributions (not exceeding 1000) during any period prior
to the last 10 calendar years immediately before
retirement;
C2 = the number of reckonable contributions (not
exceeding 500) within the last 10 calendar years immediately before
retirement;
T1 = the number of totalised contributions (not
exceeding 1000) aggregated under Article 9 during any period prior to the last
10 calendar years immediately before retirement;
T2 = the number
of totalised contributions (not exceeding 500) aggregated under Article 9 within
the last 10 calendar years immediately before retirement;
and
Y = the number of reckonable years (not exceeding 20) prior to
the last 10 calendar years immediately before retirement.
(c) in the case
of a pension in respect of invalidity, by multiplying the applicable rate of
that pension attributable to the claimant by the number of reckonable
contributions (not exceeding 2400) on which that pension would have otherwise
been calculated under the legislation of Malta and dividing the product by the
number of reckonable totalised contributions aggregated under Article 9 (not
exceeding 2400);
(d) in the case of a pension in respect of widowhood other
than a Survivor’s Pension by multiplying the applicable rate of that
pension attributable to the claimant by the number of reckonable contributions
(not exceeding 2400) on which that pension would have otherwise been calculated
under the legislation of Malta relating to her late husband and dividing the
product by the number of totalised contributions aggregated under Article 9 (not
exceeding 2400); and
(e) in the case of a Survivor’s Pension at 5/6 of
the rate of pension arrived at in accordance with the provisions of paragraph
2(b).
3. Any statutory pension additional rates that are applicable to
certain benefits covered by this Agreement that are payable under the
legislation of Malta, payment of which is also linked to a yearly contribution
average, shall be calculated in the same manner as that indicated in paragraph
2, as the case may require.
4. Where Malta pays a Maltese benefit to a
person only by virtue of the Agreement it shall deduct any statutory pension
deductions that would be deducted if those pensions were paid solely under the
legislation of Malta provided that any service pension for war service or
wife’s service pension paid to that person by Australia as defined in and
payable under its Veterans’ Entitlement Act 1986 shall not for the
purposes of this Agreement or otherwise under the legislation of Malta be
treated as a service pension as defined in the legislation of
Malta.
5. Any pension arrived at in accordance with paragraphs 2, 3 and 4
shall be rounded up to the nearest whole cent.
6. In this Article
‘reckonable contribution’ and ‘reckonable year’ shall
have the meanings given to them in the legislation of Malta.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 11
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by a
Party by virtue of this Agreement or otherwise, may be lodged in the territory
of either of the Parties in accordance with an Administrative Arrangement made
pursuant to Article 15 at any time after the Agreement enters into
force.
2. The date on which a claim, notice or appeal referred to in
paragraph 1 is lodged with the Competent Institution of the other Party shall be
treated, for all purposes concerning the matter to which it relates, as the date
of lodgement of that document with the Competent Institution of the first
Party.
3. In relation to Australia, the reference in paragraph 2 to an
appeal document is a reference to a document concerning an appeal that may be
made to an administrative body established by, or administratively for the
purposes of, the Social Security Act 1947 of Australia as amended from
time to time.
4. In relation to Malta, the reference in paragraph 2 to an
appeal document is a reference to a document concerning an appeal that may be
made to the Umpire for the purposes of the Social Security Act, 1987 of
Malta as amended from time to time.
ARTICLE 12
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and a period of insurance; and
(b) any event or fact which is
relevant to that entitlement,
shall, subject to this Agreement, be taken
into account in so far as those periods or those events are applicable in regard
to that person no matter when they were accumulated or occurred.
2. The
commencement date for payment of a benefit payable by virtue of this Agreement
shall be determined in accordance with the legislation of the Party concerned
but in no case shall that date be a date earlier than the date on which this
Agreement enters into force.
3. Where:
(a) a claim is made for a
benefit payable by one of the Parties by virtue of this Agreement;
and
(b) there are reasonable grounds for believing that the claimant may also
be entitled, whether by virtue of this Agreement or otherwise, to a benefit that
is payable by the other Party and that, if paid, would affect the amount of the
first-mentioned benefit, that first-mentioned benefit shall not be paid until a
claim is duly lodged for payment of the second-mentioned benefit and the
first-mentioned benefit shall not continue to be paid if the claim for the
second-mentioned benefit is not actively pursued.
4. Where:
(a) a
benefit is paid or payable by a Party to a person in respect of a past
period;
(b) for all or part of that period, the other Party has paid to that
person a benefit under its legislation; and
(c) the amount of the benefit
paid by that other Party would have been reduced had the benefit paid or payable
by the first Party been paid during that period;
then
(d) the
amount that would not have been paid by the other Party had the benefit
described in subparagraph (a) been paid throughout that past period shall be a
debt due by that person to the other Party; and
(e) the other Party may
determine that the amount, or any part, of that debt may be deducted from future
payments of a benefit payable by that Party to that person.
5. Where the
first Party has not yet paid the arrears of benefit described in subparagraph
4(a) to the person:
(a) that Party shall, at the request of the other
Party, pay the amount of the debt described in subparagraph 4(d) to the other
Party and shall pay any excess to the person; and
(b) any shortfall in those
arrears may be recovered by the other Party under subparagraph
4(e).
6. The Competent Institution receiving a request under paragraph 5
shall take the action set out in an Administrative Arrangement made pursuant to
Article 15, to recoup the amount of the overpayment and to transfer it to the
other Competent Institution.
7. A reference in paragraphs 3, 4 and 5 to a
benefit, in relation to Australia, means a pension, benefit or allowance that is
payable under the Social Security Act 1947 of Australia as amended from
time to time, and in relation to Malta, means any pension, benefit, allowance or
assistance that is payable under the Social Security Act, 1987 of
Malta.
ARTICLE 13
Payment of Benefits
1. The benefits payable by virtue of this Agreement and listed in this
paragraph shall be payable within and outside the territories of both
Parties:
(a) for Australia:
(i) age pensions;
(ii) invalid
pensions;
(iii) wives’ pensions;
(iv) pensions payable to widows who
were widowed while both they and their husbands were Australian
residents;
(v) class B widows’ pensions; and
(b) for Malta:
contributory pensions in respect of retirement, invalidity and
widowhood.
2. A pension payable to a widow whether payable by virtue of
this Agreement or otherwise, shall be paid by Australia in the territories of
both Parties with no limitation by time.
3. If a Party imposes legal or
administrative restrictions on the transfer of its currency abroad, both Parties
shall adopt measures as soon as practicable to guarantee the rights to payment
of benefits derived under this Agreement. Those measures shall operate
retrospectively to the time the restrictions were imposed.
4. A party
that imposes restrictions described in paragraph 3 shall inform the other Party
of those restrictions within one calendar month of their imposition and shall
adopt the measures described in paragraph 3 within 3 months of the imposition of
those restrictions. If the other Party is not so informed or if the necessary
measures are not adopted within the set time the other Party may treat such a
failure as a material breach of the Agreement for the purposes of Article 60 of
the Vienna Convention on the Law of Treaties.
5. A benefit payable by a
Party by virtue of this Agreement to a person outside the territory of that
Party shall be paid without deduction for government administrative fees and
charges for processing and paying that benefit.
6. The payment outside
Australia of an Australian benefit that is payable by virtue of this Agreement
shall not be restricted by those provisions of the legislation of Australia
which prohibit the payment of a benefit to a former Australian resident who
returns to Australia becoming again an Australian resident, and lodges a claim
for an Australian benefit and leaves Australia within 12 months of the date of
that return.
ARTICLE 14
Exchange of Information and Mutual Assistance
1. The Competent Authorities and Competent Institutions responsible for
the application of this Agreement:
(a) shall communicate to each other
any information necessary for the application of this Agreement or of the Social
Security Laws of the Parties;
(b) shall lend their good offices and furnish
assistance to one another with regard to the determination or payment of any
benefit under this Agreement or the legislation to which this Agreement applies
as if the matter involved the application of their own legislation;
(c) shall
communicate to each other, as soon as possible, all information about the
measures taken by them for the application of this Agreement or about changes in
their respective legislation in so far as these changes affect the application
of this Agreement; and
(d) at the request of one to the other, assist each
other in relation to the implementation of agreements on social security entered
into by either of the Parties with third States, to the extent and in the
circumstances specified in an Administrative Arrangement made pursuant to
Article 15.
2. The assistance referred to in paragraph 1 shall be
provided free of charge, subject to any Administrative Arrangement made pursuant
to Article 15.
3. Unless disclosure is required under the laws of a
Party, any information about an individual which is transmitted in accordance
with this Agreement to a Competent Authority or a Competent Institution of that
Party by a Competent Authority or a Competent Institution of the other Party is
confidential and shall be used only for purposes of implementing this Agreement
and the legislation to which this Agreement applies.
4. In no case shall
the provisions of paragraphs 1 and 3 be construed so as to impose on the
Competent Authority or Competent Institution of a Party the
obligation:
(a) to carry out administrative measures at variance with the
laws or the administrative practice of that Party or the other Party;
or
(b) to supply particulars which are not obtainable under the laws or in
the normal course of the administration of that Party or the other
Party.
5. In the application of this Agreement, the Competent Authority
and the Competent Institution of a Party may communicate with the other in the
official language of that Party.
ARTICLE 15
Administrative Arrangement
The Competent Authorities of the Parties shall make whatever
Administrative Arrangement is necessary from time to time in order to implement
this Agreement.
ARTICLE 16
Resolution of Difficulties
1. The Competent Authorities of the Parties shall resolve, to the
extent possible, any difficulties which arise in interpreting or applying this
Agreement according to its spirit and fundamental principles.
2. The
Parties shall consult promptly at the request of either concerning matters which
have not been resolved by the Competent Authorities in accordance with paragraph
1.
3. Any dispute between the Parties concerning the interpretation of
this Agreement which has not been resolved or settled by consultation in
accordance with paragraph 1 or 2 shall, at the request of either Party, be
submitted to arbitration.
4. Unless the Parties mutually determine
otherwise, the arbitral tribunal shall consist of three arbitrators, of whom
each Party shall appoint one and the two arbitrators so appointed shall appoint
a third who shall act as president; provided that if the two arbitrators fail to
agree, the President of the International Court of Justice shall be requested to
appoint the president.
5. The arbitrators shall determine their own
procedures.
6. The decision of the arbitrators shall be final and
binding.
7. Unless the Parties otherwise agree, the place of arbitration
shall be in the territory of the Party which did not raise the matter in
dispute.
ARTICLE 17
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose no later than 6 months after that request
was made and, unless the Parties otherwise arrange, their meeting shall be held
in the territory of the Party to which that request was made.
PART V—FINAL PROVISIONS
ARTICLE 18
Entry into Force and Termination
1. This Agreement shall enter into force one month after an exchange of
notes by the Parties through the diplomatic channel notifying each other that
all constitutional or legislative matters as are necessary to give effect to
this Agreement have been finalized.
2. Subject to paragraph 3, this
Agreement shall remain in force until the expiration of 12 months from the date
on which either Party receives from the other a note through the diplomatic
channel indicating the intention of the other Party to terminate this
Agreement.
3. In the event that this Agreement is terminated in
accordance with paragraph 2, the Agreement shall continue to have effect in
relation to all persons who:
(a) at the date of termination, are in
receipt of benefits; or
(b) prior to the expiry of the period referred to in
that paragraph, have lodged claims for, and would be entitled to receive,
benefits,
by virtue of this Agreement.
IN WITNESS WHEREOF,
the undersigned, being duly authorised thereto by their respective Governments,
have signed this Agreement.
DONE in duplicate at Canberra this
fifteenth day of August 1990.
FOR AUSTRALIA: FOR MALTA:
Graham
Richardson Louis Galea
[Signatures omitted]
Note: See section 5.
AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF THE
NETHERLANDS ON SOCIAL SECURITY
The Government of Australia and the Government of The Kingdom of The
Netherlands,
Wishing to strengthen the existing friendly relations
between their two countries, and
Resolved to co-operate in the field of
social security;
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. In this Agreement, unless the context otherwise
requires:
“benefit” means in relation to a Party, a benefit,
pension or allowance for which provision is made in the legislation of that
Party, and includes any additional amount, increase or supplement for which a
beneficiary is qualified;
“Competent Authority” means, in
relation to Australia: the Secretary to the Department of Social Security, and,
in relation to The Netherlands: the Minister for Social Affairs and
Employment;
“Competent Institution” means, in relation to
Australia: the Competent Authority for Australia, and in relation to The
Netherlands: the Insurance Institution which is charged with the implementation
of the legislation of The Netherlands specified in Article 2 and which is
competent under that legislation;
“legislation” means, in
relation to Australia, the laws specified in Article 2 in relation to Australia;
and, in relation to The Netherlands, the laws, ordinances and administrative
regulations relating to the systems and branches of social security specified in
Article 2 in relation to The Netherlands;
“period of
insurance” means a period defined as such in the legislation of The
Netherlands;
“period of residence in Australia”, in relation
to a person, means a period defined as such in the legislation of Australia, but
does not include any period deemed pursuant to Article 9 to be a period in which
that person was an Australian resident; and
“territory”
means, in relation to Australia, The Commonwealth of Australia, the Territory of
Cocos (Keeling) Islands and the Territory of Christmas Island, and, in relation
to The Netherlands, the territory of the Kingdom in Europe.
2. In the
application by a Party of this Agreement in relation to a person, any term not
defined in this Article shall, unless the context otherwise requires, have the
meaning assigned to it in the legislation of either Party.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, consolidate, supplement or replace them:
(a) in
relation to Australia: the Social Security Act 1947, in so far as the Act
provides for, applies to or affects the following benefits:
(i) age
pensions;
(ii) wives’ pensions for women who are the wives of persons
receiving age pension;
(b) in relation to The Netherlands, its
legislation on:
(i) general old age insurance;
and for the
application of Article 6 also its legislation on:
(ii) sickness
insurance;
(iii) unemployment insurance;
(iv) children’s
allowances;
(v) invalidity insurance;
(vi) general survivor’s
insurance.
2. Notwithstanding the provisions of paragraph 1 the
legislation of Australia shall not include any laws made, whether before or
after the date of signature of this Agreement, for the purpose of giving effect
to any agreement on social security entered into by either Party.
3. This
Agreement shall apply to laws which extend the legislation of either Party to
new categories of beneficiaries or to new branches or systems of social security
only if the two Parties so agree in a Protocol to this Agreement.
4. This
Agreement shall not apply to social and medical assistance schemes, to special
schemes for civil servants or persons treated as such, or to benefit schemes for
victims of war or its consequences.
ARTICLE 3
Personal Scope
Subject to other articles of this Agreement, it shall apply to any
person who:
(a) is or has been an Australian resident, or
(b) is or
has been subject to the legislation of The Netherlands,
and, where
applicable, to other persons in regard to the rights they derive from a person
described above.
ARTICLE 4
Equality of Treatment
1. Subject to the domestic laws of a Party the citizens of each of the
Parties shall be treated equally in the application of the social security laws
of Australia and of The Netherlands.
2. Subject to this Agreement and
unless otherwise provided, all persons to whom this Agreement applies shall be
treated equally by a Party in regard to rights and obligations which arise by
virtue of this Agreement.
ARTICLE 5
Payment of benefits abroad
1. Except where otherwise provided in this Agreement and subject to the
legislation of the Parties, benefits may not be reduced, modified, suspended or
withdrawn on account of the recipient residing in the territory of the other
Party.
2. Where qualification for Australian wives’ pensions for
women, who are the wives of persons receiving age pensions, are subject to
limitations as to time, then reference to Australia in those limitations shall
be read also as reference to the territory of The Netherlands.
ARTICLE 6
Secondment
1. Where a person, who is subject to the legislation of The
Netherlands, in the service of an employer having its place of business in the
territory of The Netherlands is sent from that territory by that employer to
work in the territory of Australia for a period not expected to exceed 5 years,
the person may remain subject to the legislation of The Netherlands as if he
were employed in the territory of The Netherlands.
2. If the duration of
the work is expected to extend beyond the afore-mentioned duration a person who
is subject to the legislation of The Netherlands in the service of an employer
having his place of business in the territory of The Netherlands, is sent from
that territory by that employer to work in the territory of Australia, the
person may, if justified by special reasons, remain subject to the legislation
of The Netherlands as if he were employed in the territory of the
Netherlands.
3. If the actual duration of work of the person described in
paragraph 1 exceeds the expected period of work owing to unforeseeable
circumstances that person may remain subject to the legislation of The
Netherlands as if he were employed in the territory of The
Netherlands.
4. For the purposes of the Netherlands’ legislation, a
person who is subject to the Netherlands’ legislation in accordance with
the provisions of this article shall be considered to be resident in the
territory of The Netherlands.
5. According to the provisions of this
article the Netherlands’ legislation shall be applicable if the employer
or employee has applied for a certificate of secondment within three months
after the first day of secondment or as expressed in paragraph 3 before the end
of the expected period of secondment and this certificate has been issued to the
person concerned.
PART II—PROVISIONS RELATING TO AUSTRALIAN
BENEFITS
ARTICLE 7
Residence or Presence in The Netherlands or a Third
State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in The Netherlands or a third State with which Australia has concluded
an agreement on social security that includes provision for co-operation in the
assessment and determination of claims for benefits, and
(b) is in Australia
or The Netherlands or that third State,
that person shall be deemed, for
the purposes of lodging that claim, to be an Australian resident and in
Australia on that date.
2. Paragraph 1 shall not apply to a claimant for
a wife’s pension who has never been an Australian resident.
ARTICLE 8
Spouse-related Australian Benefits
1. For the purposes of this Agreement, a person who receives a
wife’s pension under the Social Security Act 1947 as amended from time to
time due to the fact that the spouse of that person receives by virtue of this
Agreement an Australian benefit, shall be deemed to receive that wife’s
pension by virtue of this Agreement.
2. For the purposes of this
Agreement, a person in Australia who receives a carer’s pension under the
Social Security Act 1947 as amended from time to time because that person is
caring for someone who receives an Australian benefit by virtue of this
Agreement, shall be deemed to receive that carer’s pension by virtue of
this Agreement.
ARTICLE 9
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify him
or her, on that ground, under the legislation of Australia for that Australian
benefit; and
(b) a period of residence in Australia equal to or greater than
the period identified in paragraph 4 for that person,
and has
accumulated a period of insurance then, for the purposes of a claim for that
Australian benefit, that period of insurance shall be deemed, only for the
purposes of meeting any minimum qualifying periods for that benefit set out in
the legislation of Australia, to be a period in which that person was an
Australian resident.
2. For the purposes of paragraph 1, where a
person:
(a) has been an Australian resident for a continuous period which
is less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit, and
(b) has
accumulated a period of insurance in two or more separate periods that equals or
exceeds in total the minimum period referred to in subparagraph (a),
the
total of the periods of insurance shall be deemed to be one continuous
period.
3. For all purposes of this Article, where a period by a person
as an Australian resident and a period of insurance accumulated by that person
coincide, the period of coincidence shall be taken into account once only by
Australia as a period as an Australian resident.
4. The minimum period of
residence in Australia to be taken into account for the purposes of paragraph 1
shall be as follows:
(a) for the purposes of an Australian benefit that
is payable to a person residing outside Australia, the minimum period required
shall be one year, of which at least six months must be continuous,
and
(b) for the purposes of an Australian benefit that is payable to an
Australian resident there shall be no minimum period of residence in
Australia.
ARTICLE 10
Calculation of Australian Benefits
1. Subject to paragraph 2, where a person who is outside Australia is
qualified for an Australian benefit only by virtue of this Agreement, the rate
of that benefit shall be determined according to the legislation of
Australia.
2. When assessing the income of a person for the purposes of
calculating the rate of a benefit pursuant to paragraph 1:
(a) any
payment according to the Algemene Bijstandswet, to that person under the
legislation of The Netherlands shall be disregarded, and
(b) only the
proportion of any other Netherlands’ benefit described as follows which is
received by that person shall be regarded as income. That proportion shall be
calculated by multiplying the number of whole months accumulated by that person
in a period of residence in Australia (not exceeding 300) by the amount of that
Netherlands’ benefit and dividing that product by 300.
The
calculation described in paragraph 2(b) may be expressed as
A = Q [R - (NP x Q/300 + I -
F)]
300 2
where:
A = rate of
Australian benefit payable;
Q = number of months of the period of
residence in Australia of the person or 300 whichever is the
lower;
R = maximum rate of Australian
benefit;
NP = Netherlands’ old age benefit excluding AOW
toeslag;
I = income within the meaning of Australian legislation
excluding NP; and
F = free area under the Australian income
test.
3. A person who receives an Australian benefit in the territory of
The Netherlands under the legislation of Australia shall be entitled to receive
the concessional assessment of income set out in paragraph 2(a).
4. A
person who receives a proportionalised Australian benefit in the territory of
The Netherlands under the legislation of Australia shall be entitled to receive
the concessional assessment of income set out in paragraph 2.
5. Subject
to the provisions of paragraph 6, where a person who is in Australia is
qualified to receive an Australian benefit only by virtue of this Agreement, the
rate of that benefit shall be determined by:
(a) calculating that
person’s income according to the legislation of Australia but disregarding
in that calculation the Netherlands’ benefit received by that
person;
(b) deducting the amount of the Netherlands’ benefit received
by that person from the maximum rate of that Australian benefit;
and
(c) applying to the remaining benefit obtained under subparagraph (b) the
relevant rate calculation set out in the legislation of Australia, using as the
person’s income the amount calculated under subparagraph
(a).
6. Where a married person is, or both that person and his or her
spouse are, in receipt of a Netherlands’ benefit or benefits, each of them
shall be deemed, for the purpose of paragraph 5 and for the Social Security
Act 1947 as amended from time to time, to be in receipt of one half of
either the amount of that benefit or the total of both of those benefits, as the
case may be.
7. If a person would receive an Australian benefit except
for the operation of paragraph 5 or except for that person’s failure to
claim the benefit, then for the purposes of a claim by that person’s
spouse for a payment under the legislation of Australia that person shall be
deemed to receive that benefit.
8. The reference in paragraph 7 to a
payment under the legislation of Australia to the spouse of a person is a
reference to a payment of any benefit, pension or allowance under the Social
Security Act 1947 as amended from time to time whether by virtue of this
Agreement or otherwise.
PART III—PROVISIONS RELATING TO THE NETHERLANDS
BENEFITS
ARTICLE 11
Benefits under the General Old Age Pensions Act
1. The Netherlands’ Competent Institution shall determine the old
age pension directly and exclusively on the basis of periods of insurance
completed under the Netherlands’ General Old Age Pensions
Act.
2. Subject to paragraph 3, periods before January 1, 1957 during
which a national of one Party resided in the territory of The Netherlands after
reaching the age of fifteen or during which, while residing in another country
the person was gainfully employed in The Netherlands, shall also be considered
as periods of insurance if the person does not satisfy the condition of the
Netherlands’ legislation permitting such periods to be treated for that
person as periods of insurance.
3. The periods referred to in paragraph 2
shall be taken into consideration in the calculation of the old age pension only
if the person concerned has been insured under the Netherlands’ General
Old Age Pensions Act and has resided for at least six years in the territory of
one or both Parties after reaching the age of fifty-nine and only while the
person is residing in the territory of either Party. However, the periods before
January 1, 1957 shall not be taken into consideration if they coincide with
periods taken into consideration for the calculation of an old age pension under
the legislation of a country other than The Netherlands.
PART IV—COMMON PROVISIONS
ARTICLE 12
Common Provisions for the Calculation of Benefits
1. For the purposes of calculating Australian benefits under paragraph
2 of Article 10, the AOW-toeslag shall not be taken into account if the
beneficiary resides in the territory of The Netherlands.
2. For the
purposes of calculating the AOW-toeslag under Article 11, Australian benefits
for the spouse of the beneficiary shall not be taken into account if the
beneficiary resides in the territory of Australia.
PART V—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 13
Lodgement of Documents
1. Any claim, notice or appeal concerning the determination or payment
of a benefit under the legislation of one Party which should for the purposes of
that legislation, have been presented within a prescribed period to a Competent
Authority, Competent Institution or Tribunal of that Party, but which is
presented within the same period to a Competent Authority, Competent Institution
or Tribunal of the other Party, shall be treated as if it had been presented to
the Competent Authority, Competent Institution or Tribunal of the first Party.
The date on which such a claim, notice or appeal was submitted to that Competent
Authority, Competent Institution or Tribunal of the first Party shall be
considered only for the purposes of assessing entitlement to benefit as the date
of its submission to that Competent Authority, Competent Institution or Tribunal
of the other Party.
2. A claim for a benefit under the legislation of one
Party shall be deemed to be a claim for the corresponding benefit under the
legislation of the other Party, provided that the applicant:
(a) requests
that it be considered an application under the legislation of the other Party,
or
(b) provides information at the time of application indicating that
periods of residence or periods of insurance have been completed under the
legislation of the other Party and the claim is received by the Competent
Institution of the other Party within six months from the date of lodgement with
the first Party.
3. In any case to which paragraph 1 or 2 applies, the
Competent Authority, Competent Institution or Tribunal to which the claim,
notice or appeal has been submitted shall transmit it without delay to the
Competent Authority, Competent Institution or Tribunal of the other
Party.
4. In relation to Australia, the reference in paragraph 1 to an
appeal document is a reference to a document concerning an appeal that may be
made to an administrative body established by the social security laws of
Australia.
ARTICLE 14
Recovery of Overpayments
1. Where:
(a) a benefit under this Agreement is claimed from, or
is being paid by, one of the Parties; and
(b) there are reasonable grounds
for believing that the claimant may also be entitled, whether by virtue of this
Agreement or otherwise, to a benefit from the other Party and that, if paid,
would affect the amount of that first-mentioned benefit
that
first-mentioned benefit shall not be paid or continue to be paid if a claim is
not duly lodged for payment of the second-mentioned benefit or if that claim is
not actively pursued.
2. For the purposes of the Social Security Act
1947, where:
(a) a benefit is paid or payable by a Party to a person
in respect of a past period and that past period occurred after the entry into
force of the Agreement;
(b) for all or part of that period, the other Party
has paid to that person a benefit under its legislation; and
(c) the amount
of the benefit paid by that other Party would have been reduced had the benefit
referred to in subparagraph (a) been paid during that past period,
then
the amount that would not have been paid by the other Party had the benefit
described in subparagraph (a) been paid on a periodical basis throughout the
past period shall, for the purposes of this Article, be referred to as an
“overpayment”.
3. A Competent Institution which has made an
overpayment of a benefit to a beneficiary may request the other Competent
Institution which is required to pay a corresponding benefit to that beneficiary
to deduct the amount of the overpayment from any arrears of that corresponding
benefit which the latter Competent Institution pays to that beneficiary. The
latter Competent Institution shall if so requested deduct the amount of the
overpayment from those arrears and transfer it to the former Competent
Institution. Where the whole or part of any overpayment cannot be deducted from
any arrears the provisions of paragraph 4 shall apply.
4. Where a
Competent Institution of a Party is unable to recover pursuant to paragraph 3
all the amount of an overpayment it has made, it may, within the conditions and
limits laid down by the legislation which it applies, request the Competent
Institution of the other Party to deduct the unrecovered amount of the
overpayment from any pension, benefit or allowance which the latter Competent
Institution pays to the beneficiary. The latter Competent Institution shall make
the deductions under the conditions and within the limits set out in the
legislation which it applies as if it had made the overpayment and shall
transfer the amounts deducted to the former Competent Institution.
5. The
amount of any overpayment shall be a debt due by the person who received it to
the Party that paid it.
6. A Party may determine that the amount, or any
part, of the debt owing to it under paragraph 5 may be deducted from future
payments of any pension, benefit or allowance payable at any time by that Party
to the person owing the debt.
7. The Competent Institution receiving a
request under paragraph 3 or 4 shall take the action agreed upon between the
liaison agencies to recoup the amount of the overpayment and to transfer it to
the other Competent Institution.
ARTICLE 15
Payments of Benefits
1. If a Party imposes legal or administrative restrictions on the
transfer of its currency abroad, both Parties shall adopt measures as soon as
practicable to guarantee the rights to payment of benefits derived under this
Agreement or to payment of social security contributions. Those measures shall
operate retrospectively to the time the restrictions were imposed.
2. A
benefit payable by a Party by virtue of this Agreement shall be paid by that
Party, whether the beneficiary is in the territory of the other Party or outside
the respective territories of both Parties, without deduction for government
administrative fees and charges for processing and paying that
benefit.
3. The payment outside Australia of an Australian benefit that
is payable by virtue of this Agreement shall not be restricted by those
provisions of the legislation of Australia which prohibit the payment of a
benefit to a former Australian resident who returns to Australia becoming again
an Australian resident, and lodges a claim for an Australian benefit and leaves
Australia within 12 months of the date of that return.
4. Any exemption
granted in the territory of one of the Parties from stamp duty, notarial or
registration fees in respect of certificates and documents required to be
submitted to authorities and insurance institutions in the same territory, shall
also apply to certificates and documents which, for the purposes of this
Agreement, have to be submitted to authorities and insurance institutions in the
territory of the other Party. Documents and certificates required to be produced
for the purpose of this Agreement shall be exempt from authentication by
diplomatic or consular authorities.
ARTICLE 16
Exchange of Information and Mutual Assistance
1. The Competent Authorities and Institutions responsible for the
application of this Agreement shall:
(a) to the extent permitted by the
legislation which they administer, communicate to each other any information
necessary for the application of this Agreement;
(b) lend their good offices
and furnish assistance to one another (including the communication to each other
of any information necessary) with regard to the determination or payment of any
benefit under this Agreement or under the legislation to which this Agreement
applies as if the matter involved the application of their own
legislation;
(c) communicate to each other, as soon as possible, all
information about the measures taken by them for the application of this
Agreement or about changes in their respective legislation insofar as these
changes affect the application of this Agreement;
(d) at the request of one
to the other, assist each other in relation to the implementation of agreements
on social security entered into by either of the Parties with third States, to
the extent and in the circumstances specified in the Administrative Arrangement
made in accordance with Article 17.
2. The assistance referred to in
paragraph 1 shall be provided free of charge, subject to any arrangement reached
between the Competent Authorities and Competent Institutions for the
reimbursement of certain types of expenses.
3. Unless disclosure is
required under the laws of a Party, any information about an individual which is
transmitted in accordance with this Agreement to a Competent Authority or a
Competent Institution of that Party by a Competent Authority or a Competent
Institution of the other Party is confidential and shall be used only for
purposes of implementing this Agreement and the legislation to which this
Agreement applies.
4. In no case shall the provisions of paragraphs 1 and
3 be construed so as to impose on the Competent Authority or Competent
Institution of a Party the obligation:
(a) to carry out administrative
measures at variance with the laws or the administrative practice of that or the
other Party, or
(b) to supply particulars which are not obtainable under the
laws or in the normal course of the administration of that or the other
Party.
5. In the application of this Agreement, the Competent Authority
and the Competent Institutions of a Party may communicate with the other in the
official language of that Party.
ARTICLE 17
Administrative Arrangement
1. The Competent Authorities of the Parties shall establish, by means
of an Administrative Arrangement, the measures necessary for the implementation
of this Agreement.
2. Liaison agencies shall be designated to facilitate
the implementation of this Agreement.
ARTICLE 18
Review of the Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose no later than 6 months after that request
was made and, unless the Parties otherwise arrange, their meeting shall be held
in the territory of the Party to which that request was made.
PART VI—TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 19
Commencement of Benefits
1. The commencement date for payment of a benefit under this Agreement
shall be determined in accordance with the legislation of the Party concerned
but in no case shall that date be a date earlier than the date on which this
Agreement enters into force.
2. In determining the eligibility or
entitlement of a person to a benefit by virtue of this Agreement:
(a) a
period as an Australian resident and a period of insurance, and
(b) any event
or fact which is relevant to that entitlement,
shall, subject to this
Agreement, be taken into account in so far as those periods or those events are
applicable in regard to that person no matter when they were accumulated or
occurred.
3. No provision of this Agreement shall confer any right to
receive payment of a benefit for a period before the date of entry into force of
the Agreement.
4. Subject to paragraph 3, a person may be qualified to
receive a benefit, other than a lump sum payment, under this Agreement in
respect of events which happened before the date of entry into force of this
Agreement.
ARTICLE 20
Entry Into Force and Termination
1. Both Parties shall notify each other in writing of the completion of
their respective statutory and constitutional procedures required for entry into
force of this Agreement. This Agreement shall enter into force on the first day
of the third month following the date of the last
notification.
2. Subject to paragraph 3, this Agreement shall remain in
force until the expiration of 12 months from the date on which either Party
receives from the other a note through the diplomatic channel notice of
termination of this Agreement.
3. In the event that this Agreement is
terminated in accordance with paragraph 2, the Agreement shall continue to have
effect in relation to all persons who:
(a) at the date of termination,
are in receipt of benefits, or
(b) prior to the expiry of the period referred
to in that paragraph, have lodged claims for and would be entitled to receive
benefits,
by virtue of this Agreement.
IN WITNESS WHEREOF, the
undersigned, being duly authorised thereto by their respective Governments, have
signed this Agreement.
DONE in duplicate at The Hague this 4th day of
January 1991, in the English language.
FOR THE GOVERNMENT OF FOR THE
GOVERNMENT OF
AUSTRALIA THE KINGDOM OF THE
NETHERLANDS
GRAHAM
RICHARDSON ELSKE TER VELD
[Signatures omitted]
Note: See section 5.
AGREEMENT BETWEEN AUSTRALIA AND IRELAND ON SOCIAL
SECURITY
Australia and Ireland,
Wishing to strengthen the existing
friendly relations between the two countries, and
Resolved to coordinate
their social security systems,
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. In this Agreement, unless the context otherwise
requires:
(a) “benefit” means, in relation to a Party, a
benefit, pension or allowance for which provision is made in the legislation of
that Party, and includes any additional amount, increase or supplement that is
payable in addition to that benefit, pension or allowance to or in respect of a
person who qualifies for that additional amount, increase or supplement under
the legislation of that Party;
(b) “Competent Authority” means,
in relation to Australia:
the Secretary to the Department of Social
Security;
and in relation to Ireland:
the Minister for Social
Welfare;
(c) “Competent Institution” means, in relation to
Australia:
the Department of Social Security;
and in relation to
Ireland:
the Department of Social
Welfare;
(d) “legislation” means, in relation to
Australia:
the laws specified in subparagraph 1(a) of Article
2;
and in relation to Ireland:
the laws specified in
subparagraph 1(b) of Article 2;
(e) “period of residence in
Australia”, in relation to a person, means a period defined as such in the
legislation of Australia, but does not include any period deemed pursuant to
Article 8 to be a period in which that person was an Australian
resident;
(f) “Irish period of insurance” means, a period in
respect of which qualifying contributions have been paid or a period in respect
of which contributions have been treated as paid or credited and which has been
or can be used to acquire the right to benefit under the legislation of Ireland,
but does not include any period deemed pursuant to Article 10 to be an Irish
period of insurance;
(g) “territory” means, in relation to
Australia:
Australia as defined in the legislation of
Australia;
and in relation to Ireland:
that part of the island
of Ireland which is at present under the jurisdiction of the Government of
Ireland;
(h) “widow” means, in relation to Australia, a de
jure widow but does not include a woman who is the de facto spouse of a
man.
2. In the application by a Party of this Agreement in relation to a
person, any term not defined in this Article shall, unless the context otherwise
requires, have the meaning assigned to it in the legislation of either Party or,
in the event of a conflict of meaning, by whichever of those laws is the more
applicable to the circumstances of that person.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, supplement, consolidate or replace them:
(a) in
relation to Australia: the Social Security Act 1947 in so far as the Act
provides for, applies to or affects the following benefits:
(i) age
pensions;
(ii) invalid pensions;
(iii) pensions payable to
widows;
(iv) wives’ pensions; and
(v) widowed person’s
allowances;
(b) in relation to Ireland: the Social Welfare Acts 1981
to 1991 and the regulations made thereunder to the extent that they provide
for and apply to:
(i) old age (contributory) pensions;
(ii) retirement
pensions;
(iii) widow’s (contributory) pensions;
(iv) invalidity
pensions;
(v) orphan’s (contributory) allowances;
(vi) death grants;
and
(vii) the liability for the payment of employment and self-employment
contributions.
2. Notwithstanding the provisions of paragraph 1, the
legislation of Australia shall not include any laws made at any time for the
purpose of giving effect to any agreement on social security.
3. This
Agreement shall apply to laws which extend the legislation of either Party to
new categories of beneficiaries only if the two Parties so agree in a formal
amendment to this Agreement.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is or has been subject to the legislation of
Ireland,
and, where applicable, to other persons in regard to the rights
they derive from the person described above.
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
ARTICLE 5
Detached Workers
1. (a) Where a person, who is insurably employed under the legislation
of Ireland, is sent by his or her employer, whose principal place of business is
in the territory of Ireland, to the territory of Australia to perform work there
on the employer’s behalf which is of a temporary nature, the legislation
of Ireland concerning liability for the payment of employment contributions
shall apply during the first 24 months of the employment in the territory of
Australia.
(b) However, if the time taken to complete the work in the
territory of Australia exceeds 24 months the Competent Authority of Ireland may,
at the request of the employer of the person concerned, extend the period in
respect of which the legislation of Ireland shall apply.
2. (a) The
Competent Authority of Ireland may grant exemption from liability to pay
employment contributions which would otherwise be payable under the legislation
of Ireland, for a period not exceeding 24 months, in respect of employment in
the territory of Ireland of an Australian resident, where the Competent
Authority of Ireland is satisfied that the employment is of a temporary
nature.
(b) If, however, the time taken to complete the work in the
territory of Ireland exceeds 24 months, the Competent Authority of Ireland may
extend the period in respect of which the said exemption shall
apply.
PART II—PROVISIONS RELATING TO BENEFITS AUSTRALIAN
BENEFITS
ARTICLE 6
Residence or Presence in the Territory of Ireland or a Third
State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in the territory of Ireland or a third State with which Australia has
concluded an agreement on social security that includes a provision for
co-operation in the assessment and determination of claims for benefits;
and
(b) is in Australia, or the territory of Ireland or that third
State,
that person shall be deemed, for the purposes of lodging that
claim, to be an Australian resident and in Australia on that
date.
2. Paragraph 1 shall not apply to a claimant for a wife’s
pension who has never been an Australian resident.
ARTICLE 7
Spouse Related Australian Benefits
For the purposes of Article 9 only, a person who receives from
Australia an Australian benefit, pension or allowance under the social security
laws of Australia due to the fact that the spouse of that person receives, by
virtue of this Agreement, an Australian benefit shall be deemed to be receiving
that benefit, pension or allowance as if it were an Australian benefit received
by virtue of this Agreement.
ARTICLE 8
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify him
or her, on that ground, under the legislation of Australia for a benefit;
and
(b) a period of residence in Australia equal to or greater than the
period identified in paragraph 4 for that person
and has accumulated an
Irish period of insurance, then for the purposes of a claim for that Australian
benefit, that Irish period of insurance shall be deemed, only for the purposes
of meeting any minimum qualifying periods for that benefit set out in the
legislation of Australia, to be a period in which that person was an Australian
resident.
2. For the purposes of paragraph 1, where a
person:
(a) has been an Australian resident for a continuous period which
is less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit; and
(b) has
accumulated an Irish period of insurance in two or more separate periods that
equals or exceeds in total the minimum period referred to in subparagraph
(a),
the total of the Irish periods of insurance shall be deemed to be
one continuous period.
3. For all the purposes of this Article, where a
period by a person as an Australian resident and an Irish period of insurance
coincide, the period of coincidence shall be taken into account once only by
Australia as a period as an Australian resident.
4. The period of
residence in Australia to be taken into account for the purposes of subparagraph
1(b) shall be as follows:
(a) for the purposes of an Australian benefit
that is payable to a person residing outside Australia, the minimum period
required shall be 12 months, of which at least 6 months must be continuous;
and
(b) for the purposes of an Australian benefit that is payable to an
Australian resident, no minimum period shall be required.
5. For the
purpose of a claim by a person for a pension payable to a widow, that person
shall be deemed to have accumulated an Irish period of insurance for any period
for which her spouse accumulated an Irish period of insurance but any period
during which the person and her spouse both accumulated those periods of
insurance shall be taken into account once only.
6. For the purpose of
converting Irish periods of insurance into periods as an Australian resident in
accordance with this Article, one week of an Irish period of insurance shall be
deemed to be a period of a week as an Australian resident.
ARTICLE 9
Calculation of Australian Benefits
1. Subject to paragraph 2, where an Australian benefit is payable
whether by virtue of this Agreement or otherwise to a person who is outside the
territory of Australia, the rate of that benefit shall be determined according
to the legislation of Australia but when assessing the income of that person for
the purposes of calculating the rate of the Australian benefit only a proportion
of any Irish benefit which is received by that person shall be regarded as
income. That proportion shall be calculated by multiplying the number of whole
months accumulated by that person in a period of residence in Australia (not
exceeding 300) by the amount of that Irish benefit and dividing that product by
300.
2. A person referred to in paragraph 1 shall only be entitled to
receive the concessional assessment of income described in that paragraph for
any period during which the rate of that person’s Australian benefit is
proportionalised under the legislation of Australia.
3. Where an
Australian benefit is payable, whether by virtue of this Agreement or otherwise
to a person who is resident in the territory of Ireland, Australia shall
disregard, when assessing the income of that person, any of the Irish payments
listed hereunder:
(i) unemployment assistance;
(ii) old age
pension;
(iii) blind pension;
(iv) widow’s (non-contributory)
pension;
(v) orphan’s (non-contributory) pension;
(vi) deserted
wife’s allowance;
(vii) prisoners’ wife’s
allowance;
(viii) lone parent’s allowance;
(ix) single woman’s
allowance
(x) supplementary welfare allowance;
(xi) child
benefit;
(xii) rent allowance;
(xiii) a maintenance allowance under
section 69 of the Health Act 1979;
(xiv) any allowance,
dependant’s allowance, disability pension or wound pension under the
Army Pensions Act 1923 to 1980;
and any other payments of a
similar nature, as mutually determined from time to time in letters exchanged
between the Ministers respectively administering the legislation of Australia
and Ireland, paid to that person by Ireland.
4. Subject to the provisions
of paragraph 5, where an Australian benefit is payable only by virtue of this
Agreement to a person who is in Australia, the rate of that benefit shall be
determined by:
(a) calculating that person’s income according to
the legislation of Australia but disregarding in that calculation any Irish
benefits received by that person;
(b) deducting the amount of any Irish
benefits received by that person from the maximum rate of that Australian
benefit; and
(c) applying to the remaining benefit obtained under
subparagraph (b) the relevant rate calculation set out in the legislation of
Australia, using as the person’s income the amount calculated under
subparagraph (a).
5. Where a married person is, or both that person and
his or her spouse are, in receipt of an Irish benefit or benefits, each of them
shall be deemed, for the purpose of paragraph 4 and for the legislation of
Australia, to be in receipt of one half of either the amount of that benefit or
total of both of those benefits, as the case may be.
6. If a person would
receive an Australian benefit except for the operation of paragraph 4 or except
for that person’s failure to claim the benefit, then for the purposes of a
claim by that person’s spouse for a payment under the legislation of
Australia that person shall be deemed to receive that benefit.
7. The
reference in paragraph 6 to a payment under the legislation of Australia to the
spouse of a person is a reference to a payment of any benefit, pension or
allowance payable under the social security laws of Australia and whether
payable by virtue of this Agreement or otherwise.
8. As soon as is
practicable after the exchange of letters in which Irish payments are mutually
determined for the purposes of paragraph 3, the Minister administering the
legislation of Australia shall cause to be published in the Commonwealth of
Australia Gazette a notice specifying such Irish payments.
PART III—PROVISIONS RELATING TO IRISH
BENEFITS
ARTICLE 10
Totalisation for Ireland
1. Notwithstanding the provisions of paragraphs 2 and 3 of this Article
where a person is entitled to an Irish benefit by virtue of his or her Irish
periods of insurance alone, that benefit shall be payable and the provisions of
paragraph 2 of this Article shall not apply.
2. Subject to paragraph 4,
if a person is not entitled to an Irish benefit on the basis of his or her Irish
periods of insurance alone, then such periods shall be totalised with periods of
residence in Australia, in accordance with the provisions of paragraph 3. The
person’s entitlement to benefit shall be determined on the basis of the
totalised periods in accordance with the statutory contribution conditions
provided for under the legislation of Ireland and the amount of Irish benefit
payable shall be calculated in accordance with the provisions of Article
11.
3. For the purposes of determining entitlement to an Irish benefit in
accordance with the provisions of paragraph 2, a period of residence in
Australia by a person shall be considered to be a period in respect of which the
person has qualifying contributions under the legislation of
Ireland.
4. For the purposes of paragraph 3, each calendar week or part
thereof in which a person has a period of residence in Australia shall be deemed
to be a contribution week in respect of which the person has a qualifying
contribution under the legislation of Ireland.
5. Where a period of
residence in Australia and an Irish period of insurance coincide, the period of
coincidence shall be taken into account once only by Ireland as an Irish period
of insurance.
6. Subject to paragraph 7, if the total duration of the
Irish periods of insurance completed under the legislation of Ireland is less
than one year and if, taking into account only those periods, no right to a
benefit exists under that legislation, the Competent Authority of Ireland will
not be required to award benefits in respect of those periods by virtue of this
Agreement.
7. For the purpose of determining entitlement to a death grant
or orphan’s (contributory) allowance:
(a) periods of residence in
Australia shall be taken into account as if they were Irish periods of insurance
completed under the legislation of Ireland;
(b) periods of residence in
Australia shall be converted into Irish periods of insurance in accordance with
the provisions of paragraph 3, with the exception that no period of residence in
Australia prior to 1 October 1970 shall be taken into account for the purposes
of determining entitlement to a death grant.
8. For the purposes of
determining entitlement of a person to an invalidity pension, any period of
continuous incapacity for work which occurs during a period of residence in
Australia by that person shall be deemed to be a period of continuous incapacity
in the territory of Ireland.
9. For the purposes of converting periods of
residence in Australia into Irish periods of insurance as provided for in
paragraphs 3 and 7, periods of residence in Australia which occur either before
a person attains the age of 16 years or after a person attains pensionable age
in Australia shall not be taken into account.
ARTICLE 11
Calculation of Irish Benefits
1. Where a person is entitled to an Irish benefit by virtue of the
totalisation arrangements prescribed in Article 10, the Competent Institution of
Ireland shall calculate the amount of benefit, other than death grant and
orphan’s (contributory) allowance, as follows:
(a) the amount of
the theoretical benefit exclusive of any additional amount, or supplement or any
increase other than an increase for an adult dependent which would be payable if
all the periods of residence in Australia and all the Irish periods of insurance
had been completed under Irish legislation;
(b) the proportion of such
theoretical benefit which bears the same relation to the whole as the total of
Irish periods of insurance completed under the legislation of Ireland bears to
the total of all periods of residence in Australia and Irish periods of
insurance.
The proportionate amount thus calculated plus any additional
amount, supplement or increase other than an increase for an adult dependent
shall be the rate of benefit actually payable by the Competent Institution of
Ireland.
2. In the case of death grant and orphan’s (contributory)
allowance the amount of benefit payable shall be calculated in accordance with
the relevant contribution conditions under the legislation of Ireland taking
account of the provisions of Article 10(7).
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 12
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by a
Party by virtue of this Agreement or otherwise, may be lodged in the territory
of either of the Parties in accordance with administrative arrangements made
pursuant to Article 16 at any time after the Agreement enters into
force.
2. The date on which a claim, notice or appeal referred to in
paragraph 1 is lodged with the Competent Institution of the other Party shall be
treated, for the purposes of assessing entitlement to benefit, as the date of
lodgement of that document with the Competent Institution of the first
Party.
3. In relation to Australia, the reference in this Article to an
appeal document is a reference to a document concerning an appeal that may be
made to an administrative body established by the social security laws of
Australia.
ARTICLE 13
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and an Irish period of insurance; and
(b) any event or fact which is
relevant to that eligibility or entitlement,
shall, subject to this
Agreement, and to the relevant provisions of the social security laws of each
Party, be taken into account in so far as those periods or those events or facts
are applicable in regard to that person and whether they were accumulated or
occurred before or after the date on which this Agreement enters into
force.
2. The commencement date for payment of a benefit payable by
virtue of this Agreement shall be determined in accordance with the legislation
of the Party concerned but shall never be earlier than the date on which this
Agreement enters into force.
3. (a) In the case of contingencies which
occurred before the commencement of this Agreement the amount of a benefit under
the legislation of Ireland due only by virtue of this Agreement shall be
determined from the date of entry into force of the Agreement at the request of
the beneficiary.
(b) Where a claim for a determination in accordance
with subparagraph (a) is submitted within two years from the date of entry into
force of the Agreement, the benefit shall be paid from that date; otherwise the
benefit shall be paid from the date determined under the legislation of
Ireland.
4. Where:
(a) an Australian benefit payable by virtue of
this Agreement is claimed or is being paid; and
(b) there are reasonable
grounds for believing that the claimant may also be entitled, whether by virtue
of this Agreement or otherwise, to an Irish benefit and, if paid, would affect
the amount of the Australian benefit,
that Australian benefit shall not
be paid or continue to be paid until a claim is duly lodged for payment of the
Irish benefit or if the claim for the Irish benefit is not actively
pursued.
5. Where:
(a) a benefit is paid or payable by a Party to
a person in respect of a past period;
(b) for all or part of that period, the
other Party has paid to that person a benefit under its legislation;
and
(c) the amount of the benefit paid by that other Party would have been
reduced had the benefit paid or payable by the first Party been paid during that
period;
then
(d) the amount that would not have been paid by the
other Party had the benefit described in subparagraph (a) been paid on a
periodical basis throughout that past period, shall be a debt due by that person
to the other Party; and
(e) the other Party may determine that the amount, or
any part, of that debt may be deducted from future payments of a benefit payable
by that Party to that person.
6. Where the first Party has not yet paid
the benefit described in subparagraph 5(a) to the person:
(a) that Party
shall, at the request of the other Party, pay the amount of the benefit
necessary to meet the debt described in subparagraph 5(d) to the other Party and
shall pay any excess to the person; and
(b) any shortfall may be recovered by
the other Party under subparagraph 5(e).
7. The Competent Institution
receiving a request under paragraph 6 shall transfer the amount of the debt to
the Competent Institution making the request.
8. A reference in
paragraphs 4, 5 and 6 to a benefit, means, in relation to Australia, a pension,
benefit or allowance that is payable under the social security laws of Australia
and, in relation to Ireland, any pension, benefit or allowance payable under the
laws of Ireland.
ARTICLE 14
Payment of Benefits
1. Benefits of one Party are also payable in the territory of the other
Party.
2. Where the legislation of a Party provides that a benefit is
payable outside the territory of that Party, then that benefit, when payable by
virtue of this Agreement, is also payable outside the territories of both
Parties.
3. Where qualification for an Australian benefit is subject to
limitations as to time, then references to Australia in those limitations shall
be read also as references to the territory of Ireland.
4. The payment
outside Australia of an Australian benefit that is payable by virtue of this
Agreement shall not be restricted by those provisions of the legislation of
Australia which prohibit the payment of a benefit to a former Australian
resident who returns to Australia, becoming again an Australian resident, and
lodges a claim for an Australian benefit and leaves Australia within 12 months
of the date of that return.
ARTICLE 15
Exchange of Information and Mutual Assistance
1. The Competent Authorities and Competent Institutions responsible for
the application of this Agreement:
(a) shall communicate to each other
any information necessary for the application of this Agreement;
(b) shall
lend their good offices and furnish assistance to one another with regard to the
determination or payment of any benefit under this Agreement or the legislation
to which this Agreement applies as if the matter involved the application of
their own legislation;
(c) shall communicate to each other, as soon as
possible, all information about the measures taken by them for the application
of this Agreement or about changes in their respective legislation insofar as
these changes affect the application of this Agreement; and
(d) at the
request of one to the other, assist each other in relation to the implementation
of agreements on social security entered into by either of the Parties with
third States, to the extent and in the circumstances specified in administrative
arrangements made in accordance with Article 16.
2. The assistance
referred to in paragraph 1 shall be provided free of charge, subject to any
administrative arrangements made pursuant to Article 16.
3. Unless
disclosure is required under the laws of a Party, any information about an
individual which is transmitted in accordance with this Agreement to a Competent
Authority or a Competent Institution of that Party by a Competent Authority or a
Competent Institution of the other Party is confidential and shall be used only
for purposes of implementing this Agreement and the legislation to which this
Agreement applies.
4. In no case shall the provisions of paragraphs 1 and
3 be construed so as to impose on the Competent Authority or Competent
Institution of a Party the obligation:
(a) to carry out administrative
measures at variance with the laws or the administrative practice of that Party
or the other Party; or
(b) to supply particulars which are not obtainable
under the laws or in the normal course of the administration of that Party or
the other Party.
5. In the application of this Agreement, the Competent
Authority and the Competent Institution of a Party may communicate with the
other in any official language of that Party.
ARTICLE 16
Administrative Arrangements
The Competent Authorities of the Parties shall make whatever
administrative arrangements are necessary in order to implement this
Agreement.
ARTICLE 17
Resolution of Difficulties
1. The Competent Authorities of the Parties shall resolve, to the
extent possible, any difficulties which arise in interpreting or applying this
Agreement according to its spirit and fundamental principles.
2. The
Parties shall consult promptly at the request of either concerning matters which
have not been resolved by the Competent Authorities in accordance with paragraph
1.
ARTICLE 18
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose as soon as possible after that request was
made and, unless the Parties otherwise agree, their meeting shall be held in the
territory of the Party to which the request was made.
PART V—TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 19
Entry Into Force and Termination
1. This Agreement is subject to ratification. The instruments of
ratification shall be exchanged at Dublin as soon as possible.
2. Once
all constitutional and legislative requirements, including administrative
arrangements referred to in Article 16 of this Agreement have been fulfilled
this Agreement shall enter into force on the first day of the second month
following the month in which the instruments of ratification are
exchanged.
3. Subject to paragraph 4, this Agreement shall remain in
force until the expiration of 12 months from the date on which either Party
receives from the other a note through the diplomatic channel indicating the
intention of the other Party to terminate this Agreement.
4. In the event
that this Agreement is terminated in accordance with paragraph 3, the Agreement
shall continue to have effect in relation to all persons who:
(a) at the
date of termination, are in receipt of benefits; or
(b) prior to the expiry
of the period referred to in that paragraph, have lodged claims for, and would
be entitled to receive, benefits,
by virtue of this Agreement.
IN
WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this Agreement.
DONE in 2 copies at
CANBERRA this EIGHTH day of APRIL, one thousand nine hundred and
ninety-one.
FOR AUSTRALIA: FOR IRELAND:
GRAHAM RICHARDSON MICHAEL
WOODS
[Signatures omitted]
Note: See section 5.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF THE REPUBLIC OF PORTUGAL ON SOCIAL SECURITY
The Government of Australia and the Government of the Republic of
Portugal,
Wishing to strengthen the existing friendly relations between
the two countries, and
Resolved to coordinate their social security
systems;
Have agreed as follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. In this Agreement, unless the context otherwise
requires:
(a) “benefit” means, in relation to a Party, a
benefit, pension or allowance for which provision is made in the legislation of
that Party, and includes any additional amount, increase or supplement that is
payable, in addition to that benefit, pension or allowance, to or in respect of
a person who qualifies for that additional amount, increase or supplement under
the legislation of that Party;
(b) “carer’s pension” means
a carer’s pension payable to a spouse under the legislation of
Australia;
(c) “Competent Authority” means:
in relation
to Australia: the Secretary to the Department of Social Security; and, in
relation to Portugal: the Minister or other corresponding authority responsible
for the social security schemes in all or any part of the territory of
Portugal;
(d) “Competent Institution” means:
in
relation to Australia: the Competent Authority for Australia; and, in relation
to Portugal: the Institution responsible under the legislation of Portugal for
dealing with a claim for a Portuguese
benefit;
(e) “Institution” means:
in relation to
Australia: the Department of Social Security; and, in relation to Portugal: the
body responsible for the implementation of the legislation of
Portugal;
(f) “legislation” means, in relation to a Party,
the laws specified in Article 2;
(g) “period of residence in
Australia”, in relation to a person, means a period defined as such in the
legislation of Australia, but does not include any period deemed pursuant to
Article 11 to be a period in which that person was an Australian
resident;
(h) “Portuguese insurance period” means the period of
contributions or any equivalent period which has been or can be used to acquire
the right to a benefit under Portuguese legislation, but does not include any
period considered under paragraph 1 of Article 13 as a Portuguese insurance
period;
(i) “territory” means, in relation to Portugal, the
territory of the Republic of Portugal on the European continent and the
archipelagos of the Azores and Madeira; and, in relation to Australia, Australia
as defined in the legislation of Australia;
(j) “widow”
means:
in relation to Australia: a de jure widow or a dependent female;
and, in relation to Portugal: a de jure widow or an unmarried or legally
separated woman covered by paragraph 1 of Article 2020 of the Civil Law
Code;
but does not include a woman who is the de facto spouse of a
man.
2. In the application by a Party of this Agreement in relation to a
person, any term not defined in this Article shall, unless the context otherwise
requires, have the meaning assigned to it in the legislation of either Party or,
in the event of a conflict of meanings, by whichever of those laws is the more
applicable to the circumstances of that person.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, supplement or replace them:
(a) in relation to
Australia: the Social Security Act 1947 in so far as the Act provides
for, applies to or affects the following benefits:
- age pensions;
-
invalid pensions;
- wives’ pensions;
- carers’
pensions;
- benefits payable to widows;
- unemployment benefits;
and
- sickness benefits; and
(b) in relation to
Portugal:
(i) the legislation relating to the General Scheme and the
Special Schemes (including the Voluntary Social Insurance Scheme and excluding
provisions for Civil Servants or persons treated as such) of the Social Security
System in respect of the following benefits:
- old age pensions;
-
invalid pensions;
- survivors’ pensions and death grant;
-
sickness and maternity benefits;
- unemployment benefits;
- funeral
grant; and
- family allowance for pensioners (including pensioners under the
legislation relating to work injury and occupational diseases);
(ii) the
legislation relating to work injury and occupational diseases pensions;
and
(iii) the legislation relating to the non-contributory scheme in respect
of old age, invalid and survivors’ pensions.
2. Unless otherwise
provided in this Agreement, the laws referred to in paragraph 1 shall not
include any treaty or other international agreement or supra-national
legislation on social security which may be in force between either Party and a
third State or third States, or laws or regulations promulgated for their
specific implementation.
3. This Agreement shall apply to laws which
extend the legislation of either Party to new categories of beneficiaries only
if the two Parties so agree in a Protocol to this Agreement.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is or has been subject to the legislation of
Portugal;
and, where applicable, to any other person with respect to the
rights he or she derives from such a person described in subparagraph (a) or
(b).
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
ARTICLE 5
Voluntary Social Insurance
As soon as an Australian citizen is deemed to be a resident in Portugal
that person shall be entitled to register with the Voluntary Social Insurance
Scheme under the legislation of Portugal on the same basis as a national of
Portugal.
ARTICLE 6
Payment of Benefits
1. Subject to paragraph 4, benefits of one Party are also payable in
the territory of the other Party.
2. Where the legislation of a Party
provides that a benefit is payable outside the territory of that Party, then
that benefit, when payable by virtue of this Agreement, is also payable outside
the territories of both Parties.
3. Where qualification for a benefit of
one Party is subject to limitations as to time, then reference to that Party in
those limitations shall be read also as references to the territory of the other
Party.
4. Notwithstanding any provision of this Agreement unemployment
benefits and sickness benefits under the legislation of Australia shall not be
paid outside the territory of Australia and sickness and maternity benefits and
unemployment benefits under the legislation of Portugal and Portuguese pensions
specified in Article 2(1)(b)(iii) shall not be paid outside the territory of
Portugal.
PART II—PROVISIONS ON COVERAGE
ARTICLE 7
Application of Legislation
1. Except as otherwise provided in this Agreement, the persons to whom
this Agreement applies shall be covered by:
(a) Portuguese legislation if
they are resident or employed in Portugal; or
(b) Australian legislation if
they are Australian residents.
2. Where a person is entitled to claim a
benefit under the legislation of a Party that legislation shall also apply to
that person.
ARTICLE 8
Decisions on Coverage
The Competent Authorities will, in accordance with their
countries’ respective legislation, decide on the coverage to be applied in
the best interests of a person.
PART III—PROVISIONS RELATING TO
BENEFITS
SECTION 1—AUSTRALIAN BENEFITS
ARTICLE 9
Residence or Presence in Portugal or a Third State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except that he or she is not an
Australian resident and in Australia on the date on which he or she lodges a
claim for that benefit but he or she:
(a) is an Australian resident or
residing in the territory of Portugal or a third State with which Australia has
concluded an agreement on social security that includes provision for
co-operation in the assessment and determination of claims for benefits;
and
(b) is in Australia, or the territory of Portugal or that third
State;
that person shall be deemed, for the purposes of lodging that
claim, to be an Australian resident and in Australia on that
date.
2. Paragraph 1 shall not apply to a claimant for a wife’s
pension or carer’s pension who has never been an Australian
resident.
ARTICLE 10
Spouse Related Australian Benefits
For the purposes of this Agreement, a person who receives from
Australia an Australian benefit due to the fact that the spouse of that person
receives, by virtue of this Agreement, another Australian benefit shall be
deemed to receive that first-mentioned benefit by virtue of this
Agreement.
ARTICLE 11
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify that
person, on that ground, under the legislation of Australia for a benefit;
and
(b) a period of residence in Australia equal to or greater than the
period identified in accordance with paragraph 4 for that person;
and a
Portuguese insurance period, then for the purposes of a claim for that
Australian benefit, that Portuguese insurance period shall be deemed, only for
the purposes of meeting any minimum qualifying periods for that benefit set out
in the legislation of Australia, to be a period in which that person was an
Australian resident.
2. For the purposes of paragraph 1, where a
person:
(a) has been an Australian resident for a continuous period which
is less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit; and
(b) has
accumulated a Portuguese insurance period in two or more separate periods that
equals or exceeds in total the minimum period referred to in subparagraph
(a);
the total of the Portuguese insurance periods shall be deemed to be
one continuous period.
3. Where a period by a person as an Australian
resident and a Portuguese insurance period coincide, the period of coincidence
shall be taken into account once only by Australia for the purposes of this
Article as a period as an Australian resident.
4. The period of residence
in Australia (as defined in Article 1) to be taken into account for the purposes
of paragraph 1(b) shall be as follows:
(a) for the purposes of an
Australian benefit that is payable to a person who is not an Australian
resident, the minimum period required shall be 12 months, of which at least 6
months must be continuous; and
(b) for the purposes of an Australian benefit
that is payable to an Australian resident, no period of residence in Australia
shall be required.
ARTICLE 12
Calculation of Australian Benefits
1. Subject to paragraphs 2 and 3, where an Australian benefit is
payable whether by virtue of this Agreement or otherwise to a person who is
outside Australia, the rate of that benefit shall be determined according to the
legislation of Australia but when assessing the income of that person for the
purposes of calculating the rate of the Australian benefit only a proportion of
any Portuguese benefit paid to that person under the legislation specified in
Article 2(1)(b)(i) or (ii) shall be regarded as income. That proportion shall be
calculated by multiplying the number of whole months accumulated by that person
in a period of residence in Australia (not exceeding 300) by the amount of that
Portuguese benefit and dividing that product by 300.
2. A person referred
to in paragraph 1 shall be entitled to receive the concessional assessment of
income described in that paragraph only for any period during which the rate of
that person’s Australian benefit is proportionalised under the legislation
of Australia.
3. When an Australian benefit is payable whether by virtue
of this Agreement or otherwise to a person who is resident in the territory of
Portugal, Australia shall disregard, when assessing the income of that
person:
(a) any benefit paid to that person under the legislation
specified in Article 2(1)(b)(iii); and
(b) any non-contributory supplement
paid to that person by Portugal to bring the amount of that person’s
Portuguese benefit to the minimum level guaranteed under the legislation of
Portugal.
4. Subject to paragraph 5, where an Australian benefit is
payable only by virtue of this Agreement to a person who is in Australia, the
rate of that benefit shall be determined by:
(a) calculating that
person’s income according to the legislation of Australia but disregarding
in that calculation the Portuguese benefit or benefits received by that
person;
(b) deducting the amount of the Portuguese benefit or benefits
received by that person from the maximum rate of that Australian benefit;
and
(c) applying to the remaining benefit obtained under subparagraph (b) the
relevant rate calculation set out in the legislation of Australia, using as the
person’s income the amount calculated under subparagraph
(a).
5. Where a married person is, or both that person and his or her
spouse are, in receipt of a Portuguese benefit or benefits, each of them shall
be deemed, for the purpose of paragraph 4 and for the legislation of Australia,
to be in receipt of one half of either the amount of that benefit or the total
of both of those benefits, as the case may be.
6. If a person would
receive an Australian benefit except for the operation of paragraph 4 or except
for that person’s failure to claim the benefit, then for the purposes of a
claim by that person’s spouse for a payment under the legislation of
Australia that person shall be deemed to receive that benefit.
7. The
reference in paragraph 6 to a payment under the legislation of Australia to the
spouse of a person is a reference to a payment of any benefit, pension or
allowance payable under the Social Security Act 1947 as amended from time
to time and whether payable by virtue of this Agreement or
otherwise.
SECTION 2—PORTUGUESE BENEFITS
SUB-SECTION 1—OLD-AGE, INVALID AND SURVIVORS’
PENSIONS
ARTICLE 13
Totalisation for Portugal
1. Where this Agreement applies and there is a Portuguese insurance
period that is:
(a) less than the period necessary to give a claimant
entitlement to the benefit claimed under the legislation of Portugal;
and
(b) equal to or greater than the period mentioned in paragraph 3 for that
benefit;
then any period of residence in Australia by the contributor to
whom that Portuguese insurance period was credited shall be deemed to be a
Portuguese insurance period.
2. For the purposes of this Article, where a
Portuguese insurance period and period of residence in Australia coincide, the
period of coincidence shall be taken into account once only as a Portuguese
insurance period.
3. The Portuguese insurance period to be taken into
consideration for the purposes of paragraph 1(b) shall be 12
months.
4. For the purposes of this Article the upper age limit for a
woman, set in the definition of a period of residence in Australia in the
legislation of Australia, shall be raised to the age pension age for a woman for
the purposes of claiming an old age pension under the legislation of
Portugal.
ARTICLE 14
Rules for the Granting of Portuguese Pensions
1. Subject to paragraph 3, the Portuguese Institution shall determine
the rate of Portuguese benefits in accordance with Portuguese legislation and,
in relation to old age pension, invalid pension and survivor’s pension,
the calculation shall be based directly and exclusively on Portuguese insurance
periods and equivalents completed under Portuguese legislation.
2. If the
total of any pensions paid by both Parties to a person residing in Portugal is
less than the minimum pension fixed by Portuguese legislation, the Competent
Institution of Portugal will pay to that person an amount equal to that
difference.
3. For the purposes of calculating any supplement to be paid
by Portugal to an Australian resident to bring Portuguese benefit paid, other
than by virtue of this Agreement, to that person to the minimum level fixed by
Portuguese legislation, any Australian benefit paid to that person by virtue of
this Agreement shall not be taken into account.
4. Entitlement to
Portuguese pensions paid by virtue of this Agreement shall have regard to
occupational activity carried out in the territory of Australia as if that
activity was carried out in the territory of Portugal.
5. In the
assessment of income for the calculation of the rate of a spouse’s
supplement under the legislation of Portugal, wife’s pension payable under
the legislation of Australia shall not be taken into account.
SUB-SECTION 2—OTHER PORTUGUESE BENEFITS
ARTICLE 15
Sickness and Maternity Benefits
Where a person, after his or her last arrival in the territory of
Portugal, has accomplished a contribution period under Portuguese legislation
for the purposes of eligibility for a sickness or maternity benefit under that
legislation, the periods of residence in Australia shall be deemed as periods
accomplished under Portuguese legislation, provided that they do not
coincide.
ARTICLE 16
Unemployment Benefit
Where a person, after his or her last arrival in the territory of
Portugal, has accomplished a contribution period of at least four weeks under
Portuguese legislation for the purposes of eligibility for unemployment benefit
under that legislation, the periods of residence in Australia, during which an
occupational activity has been pursued as an employee or Australian unemployment
benefit has been awarded as a result of no longer being an employee, shall be
deemed as periods accomplished under Portuguese legislation, provided that they
do not coincide.
ARTICLE 17
Family Allowance for Pensioners
Family allowances payable under the legislation of
Portugal:
(a) shall be payable by virtue of this Agreement to pensioners
who are residing in Australia and receiving a pension under the legislation of
Portugal be they Australian citizens or Portuguese nationals;
(b) shall not
preclude the payment of family allowance under the Social Security Act
1947 of Australia as amended from time to time;
and shall for the
purposes of reciprocity in relation to this Agreement be regarded as the
Portuguese benefit equivalent to those Australian benefits described as
additional pension and mothers’ and guardians’ allowances for
children.
ARTICLE 18
Pensions for Accidents at Work and Occupational
Diseases
1. Pensions related to incapacity due to work-related accidents or
occupational diseases according to Portuguese legislation shall be paid by the
competent Portuguese institution whenever a person is subject to the legislation
applied by it at the time the accident occurred or at the date the occupational
disease has been contracted if that person has been pursuing an occupational
activity likely to cause that disease according to the legislation of that
Party.
2. In order to determine the permanent incapacity rate for
work-related accidents or occupational diseases under Portuguese legislation,
work-related accidents or occupational diseases which qualified a person for a
benefit under Australian legislation shall be deemed to have occurred under
Portuguese legislation.
PART IV—MISCELLANEOUS PROVISIONS
ARTICLE 19
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by a
Party by virtue of this Agreement or otherwise, may be lodged in the territory
of either of the Parties in accordance with administrative arrangements made
pursuant to Article 23 at any time after the Agreement enters into
force.
2. The date on which a claim, notice or appeal referred to in
paragraph 1 is lodged with the Competent Institution of the other Party shall be
treated, for all purposes concerning the matter to which it relates, as the date
of lodgement of that document with the Competent Institution of the first
Party.
3. The reference in paragraph 2 to an appeal document is a
reference to a document concerning an appeal that may be made to an
administrative body established by, or administratively for the purposes of, the
respective legislation.
ARTICLE 20
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and a Portuguese insurance period; and
(b) any event or fact which
is relevant to that entitlement,
shall, subject to this Agreement, be
taken into account in so far as those periods or those events are applicable in
regard to that person no matter when they were accumulated or
occurred.
2. The commencement date for payment of a benefit payable by
virtue of this Agreement shall be determined in accordance with the legislation
of the Party concerned but in no case shall that date be a date earlier than the
date on which this Agreement enters into force.
3. Where:
(a) a
claim is made for a benefit payable by one of the Parties by virtue of this
Agreement; and
(b) there are no reasonable grounds for the claimant not to
claim a benefit under the legislation of the other Party, whether by virtue of
this Agreement or otherwise;
that first-mentioned benefit shall not be
paid until a claim is duly lodged for payment of the second-mentioned benefit
and the first-mentioned benefit shall not continue to be paid if the claim for
the second-mentioned benefit is not actively pursued.
4. The provisions
of paragraph 3 shall in no way affect the rights of a person under the
legislation of Portugal to continue to acquire the right to a benefit under that
legislation.
5. Where:
(a) a benefit is paid or payable by a Party
to a person in respect of a past period;
(b) for all or part of that period,
the other Party has paid to that person a benefit under its legislation;
and
(c) the amount of the benefit paid by that other Party would have been
reduced had the benefit paid or payable by the first Party been paid during that
period;
then:
(d) the amount that would not have been paid by the
other Party had the benefit described in subparagraph (a) been paid on a
periodical basis throughout that past period shall be a debt due by that person
to the other Party; and
(e) the other Party may determine that the amount, or
any part, of that debt may be deducted from future payments of a benefit payable
by that Party to that person.
6. Where the first Party has not yet paid
the arrears of benefit described in subparagraph 5(a) to the
person:
(a) that Party shall, at the request of the other Party, pay the
amount of the debt described in subparagraph 5(d) to the other Party and shall
pay any excess to the person; and
(b) any shortfall in those arrears may be
recovered by the other Party under subparagraph 5(e).
7. A reference in
paragraph 3, 5 or 6 to a benefit, in relation to Australia, means a pension,
benefit or allowance that is payable under the Social Security Act 1947
of Australia as amended from time to time, and in relation to Portugal means any
pension, benefit, allowance or advance made by a Competent Institution including
overpayments which arise because of the payment of Portuguese and Australian
benefits.
ARTICLE 21
Payment of Benefits
1. If a Party imposes legal or administrative restrictions on the
transfer of its currency abroad, both Parties shall adopt measures as soon as
practicable to guarantee the rights to payment of benefits derived under this
Agreement. Those measures shall operate retrospectively to the time the
restrictions were imposed.
2. A Party that imposes restrictions described
in paragraph 1 shall inform the other Party of those restrictions within one
calendar month of their imposition and shall adopt the measures described in
paragraph 1 within three months of the imposition of those restrictions. If the
other Party is not so informed or if the necessary measures are not adopted
within the set time, the other Party may treat such a failure as a material
breach of the Agreement and as sufficient justification for termination or
suspension of the Agreement between the Parties.
3. A benefit payable by
a Party by virtue of this Agreement to a person outside the territory of that
Party shall be paid without deduction for government administrative fees and
charges for processing and paying that benefit.
4. The payment outside
Australia of an Australian benefit that is payable by virtue of this Agreement
shall not be restricted by those provisions of the legislation of Australia
which prohibit the payment of a benefit to a former Australian resident who
returns to Australia, becoming again an Australian resident, and lodges a claim
for an Australian benefit and leaves Australia within 12 months of the date of
that return.
ARTICLE 22
Exchange of Information and Mutual Assistance
1. The Competent Authorities shall:
(a) advise each other of
laws that amend, supplement or replace the legislation of their respective
Parties, promptly after the first-mentioned laws are made;
(b) advise each
other directly of internal action to implement this Agreement and any
Administrative Arrangement adopted for its implementation; and
(c) advise
each other of any technical problems encountered when applying the provisions of
this Agreement or of any Administrative Arrangement made for its
implementation.
2. The Institutions of both Parties
shall:
(a) advise each other of any information necessary for the
application of this Agreement or of the respective legislation of the Parties
concerning all matters within their area of competence arising under this
Agreement or under those laws;
(b) assist one another in relation to the
determination of any benefit under this Agreement or the respective legislation
within the limits of and according to their own laws; and
(c) at the request
of one to the other, assist each other in relation to the implementation of
agreements on social security entered into by either of the Parties with third
States, to the extent and in the circumstances specified in administrative
arrangements made in accordance with Article 23.
3. The assistance
referred to in paragraphs 1 and 2 shall be provided free of charge, subject to
any Administrative Arrangement made pursuant to Article 23.
4. Any
information about a person which is transmitted in accordance with this
Agreement to an Institution shall be protected in the same manner as information
obtained under the legislation of that Party.
5. In no case shall the
provisions of paragraphs 1, 2 and 3 be construed so as to impose on the
Competent Authority or Institution of a Party the obligation:
(a) to
carry out administrative measures at variance with the laws or the
administrative practice of that or the other Party; or
(b) to supply
particulars which are not obtainable under the laws or in the normal course of
the administration of that or of the other Party.
6. In the application
of this Agreement, the Competent Authority and the Institutions of a Party may
communicate with the other in the official language of that Party.
7. In
this Article the meaning of “legislation” is not confined by any
restrictions imposed by Article 2.
ARTICLE 23
Administrative Arrangements
The Competent Authorities of the Parties shall make whatever
administrative arrangements are necessary in order to implement this
Agreement.
ARTICLE 24
Resolution of difficulties
1. The Competent Authorities of the Parties shall resolve, to the
extent possible, any difficulties which arise in interpreting or applying this
Agreement according to its spirit and fundamental principles.
2. The
Parties shall consult promptly at the request of either concerning matters which
have not been resolved by the Competent Authorities in accordance with paragraph
1.
ARTICLE 25
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose no later than 6 months after that request
was made and, unless the Parties otherwise agree, their meeting shall be held in
the territory of the Party to which that request was made.
PART V—FINAL PROVISIONS
ARTICLE 26
Entry Into Force and Termination
1. This Agreement shall enter into force on the first day of the month
following the finalisation of an exchange of notes by the Parties through the
diplomatic channel notifying each other that all constitutional or legislative
matters as are necessary to give effect to this Agreement have been
finalized.
2. Subject to paragraph 3, this Agreement shall remain in
force until the expiration of 12 months from the date on which either Party
receives from the other a note through the diplomatic channel indicating the
intention of the other Party to terminate this Agreement.
3. In the event
that this Agreement is terminated in accordance with paragraph 2, the Agreement
shall continue to have effect in relation to all persons who:
(a) at the
date of termination, are in receipt of benefits; or
(b) prior to the expiry
of the period referred to in that paragraph, have lodged claims for, and would
be entitled to receive, benefits,
by virtue of this Agreement.
IN
WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this Agreement.
DONE in 2 copies at
LISBON this THIRTIETH day of APRIL, NINETEEN HUNDRED AND NINETY ONE in the
English and Portuguese languages, each text being equally
authoritative.
FOR THE GOVERNMENT OF FOR THE GOVERNMENT
OF
AUSTRALIA THE REPUBLIC OF PORTUGAL
GRAHAM RICHARDSON JOSE ALBINO DA
SILVA PENEDA
[Signatures omitted]
Note: See section 5.
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF AUSTRIA ON
SOCIAL SECURITY
AUSTRALIA AND THE REPUBLIC OF AUSTRIA,
Wishing to strengthen
the existing friendly relations between the two
countries,
And
Resolved to co-operate in the field of social
security;
Have agreed as follows:
PART I—INTERPRETATION AND SCOPE
GENERAL PROVISIONS
ARTICLE 1
Interpretation
1. In this Agreement:
(a) “national” means, in
relation to Australia, an Australian citizen; and, in relation to Austria, an
Austrian citizen;
(b) “legislation” means, in relation to
Australia, the law specified in subparagraph 1(a) of Article 2; and, in relation
to Austria, the laws, regulations and statutory instruments which relate to the
branches of social security specified in subparagraph 1(b) of Article
2;
(c) “competent authority” means in relation to Australia, the
Secretary to the Department of Social Security; and, in relation to Austria, the
Federal Minister responsible for the application of the legislation specified in
subparagraph 1(b) of Article 2;
(d) “institution” means, in
relation to Australia, the Department of Social Security; and, in relation to
Austria, the institution responsible for the application of the Austrian
legislation;
(e) “competent institution” means, in relation to
Australia, the Department of Social Security; and, in relation to Austria, the
institution competent under the Austrian legislation to deal with the matter in
question;
(f) “period of Australian working life residence”, in
relation to a person, means a period defined as such in the legislation of
Australia but does not include any period deemed pursuant to Article 6 to be a
period in which that person was an Australian resident;
(g) “period of
insurance in Austria” means a period of insurance defined as such in the
Austrian legislation;
(h) “benefit” means, in relation to a
Party, a benefit, pension or allowance for which provision is made in the
legislation of that Party, and includes any additional amount, increase or
supplement that is payable, in addition to that benefit, pension or
allowance;
(i) “carer pension” means, in relation to Australia, a
carer pension payable to a partner under the legislation of
Australia;
(j) “widowed person” means, in relation to Australia,
a person who:
(i) stops being a married person or becomes a single person
because of the death of the person’s husband or wife; or
(ii) is a
class B widow because of the death of her husband or because she is a dependent
female,
but does not include a person who has a new
partner;
(k) “refugee” means a person defined as a refugee in
Article 1 of the Convention relating to the Status of Refugees, dated 28 July
1951, and the Protocol to that Convention, dated 31 January
1967;
(l) “stateless person” means a person defined as a
stateless person in Article 1 of the Convention relating to the Status of
Stateless Persons, dated 28 September 1954.
2. In the application of this
Agreement, any term not defined in this Article shall, unless the context
otherwise requires, have the meaning assigned to it by the legislation of either
Party.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to:
(a) in
relation to Australia: the Social Security Act 1991 insofar as the Act
provides for, applies to or affects:
(i) age pensions,
(ii) invalid
pensions,
(iii) wife pensions,
(iv) carer pensions; and
(v) benefits
payable to widowed persons; and
(b) in relation to Austria the
legislation concerning pension insurance with the exception of the insurance for
notaries.
2. Except as otherwise provided in paragraph 3 this Agreement
shall also apply to any legislation which supersedes, replaces, amends,
supplements or consolidates the legislation specified in paragraph
1.
3. Notwithstanding the provisions of paragraph 1:
(a) the
legislation of Australia shall not include any laws made, whether before or
after the date of signature of this Agreement, for the purpose of giving effect
to any agreement on social security; and
(b) this Agreement shall not affect
any other agreement on social security which Austria has concluded with a third
State, except as it contains provisions relating to the apportionment of
insurance burdens.
ARTICLE 3
Personal Scope
This Agreement shall apply without any restriction based on nationality
to any person who:
(a) is or has been an Australian resident;
or
(b) is or has been subject to the Austrian legislation,
and where
applicable, to any other person with respect to the rights he or she derives
from such a person described in subparagraph (a) or (b).
ARTICLE 4
Equality of Treatment
1. Unless otherwise provided in this Agreement, nationals of one Party
shall, in the application of the legislation of the other Party, receive equal
treatment with the nationals of that other Party.
2. Benefits under the
legislation of one Party shall be granted to nationals of the other Party
resident outside the territories of both Parties, under the same conditions and
to the same extent as they are granted to the nationals of the first party who
reside outside the territories of the Parties.
3. Paragraph 1 shall not
apply to the provisions of the Austrian legislation concerning:
(a) the
participation of insured persons and employers in the administration of
institutions and associations as well as adjudication in the field of social
security;
(b) the apportionment of insurance burdens resulting from
agreements with third States; or
(c) the insurance of persons employed at a
diplomatic mission or consular post of Austria in a third State or by a member
of such a mission or post.
4. Paragraph 1 shall apply with regard to the
provisions of Austrian legislation concerning the taking into account of periods
of war service and of periods considered as such only to Australian nationals
who were Austrian nationals immediately before 13 March 1938.
ARTICLE 5
Equivalence of Territories
1. Unless otherwise provided in this Agreement any provision of the
legislation of a Party under which qualification for or payment of a benefit is
dependent on a person being a resident of, and/or present in the territory of
that Party shall not apply to nationals of either Party, refugees or stateless
persons, or other persons who derive rights from the foregoing, who are resident
in the territory of either Party and present in the territory of either
Party.
2. Benefits of a Party are payable at the request of the
beneficiary in the territory of the other Party.
3. Where the legislation
of a Party provides that a benefit is payable outside the territory of that
Party, then that benefit, when payable by virtue of this Agreement, is also
payable outside the territories of both Parties.
4. In relation to
Australia:
(a) Paragraph 1 shall apply without regard to
nationality.
(b) Paragraph 1 shall not apply to a claimant for a wife pension
or carer pension who has never been an Australian resident or to rental
allowance.
(c) Where qualification for an Australian benefit is subject to
limitations as to time, then references to Australia in those limitations shall
be read also as references to the territory of Austria.
(d) Where a person
would be qualified under the legislation of Australia or by virtue of this
Agreement for an Australian benefit except for not being an Australian resident
and in Australia on the date on which the claim for that benefit is lodged
but:
(i) is an Australian resident or residing in the territory of
Austria or a third State with which Australia has concluded an agreement on
social security that includes provisions for cooperation in the assessment and
determination of claims for benefits; and
(ii) is in Australia, or in the
territory of Austria or that third State,
that person shall be deemed,
for the purposes of lodging that claim, to be an Australian resident and in
Australia on that date.
5. As regards the Austrian legislation, paragraph
1 shall not apply to the compensatory supplement
(Ausgleichszulage).
PART II—PROVISIONS CONCERNING AUSTRALIAN
BENEFITS
ARTICLE 6
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has, without the application of this
Agreement, accumulated:
(a) a period as an Australian resident that is
less than the period required to qualify him or her, on that ground, under the
legislation of Australia for a benefit; and
(b) a period of Australian
working life residence equal to or greater than the minimum period identified in
accordance with paragraph 4 for that person
and has accumulated a period
of insurance in Austria, then for the purposes of a claim for that Australian
benefit, that period of insurance in Austria shall be deemed, only for the
purposes of this Article for meeting any period required for qualification for
that benefit set out in the legislation of Australia, to be a period in which
that person was an Australian resident.
2. For the purposes of paragraph
1, where a person:
(a) has been an Australian resident for a continuous
period which is less than the minimum continuous period required by the
legislation of Australia for entitlement of that person to a benefit;
and
(b) has accumulated a period of insurance in Austria in two or more
separate periods that equals or exceeds in total the minimum period referred to
in subparagraph (a),
the total of the periods of insurance in Austria
shall be deemed to be one continuous period.
3. For all purposes of this
Article, where a period by a person as an Australian resident and a period of
insurance in Austria coincide, the period of coincidence shall be taken into
account once only by Australia as a period as an Australian
resident.
4. The minimum period of residence in Australia to be taken
into account for the purposes of paragraph 1 shall be as follows:
(a) for
the purposes of an Australian benefit that is payable to a person who is not an
Australian resident, the minimum period shall be twelve months of which at least
six months must be continuous; and
(b) for the purposes of an Australian
benefit that is payable to an Australian resident, no minimum.
5. For the
purposes of a claim by a person for a pension payable to a widowed person, that
person shall be deemed to have accumulated a period of insurance in Austria for
any period for which his or her partner accumulated a period of insurance in
Austria but any period during which the person and his or her partner both
accumulated a period of insurance in Austria shall be taken into account once
only.
ARTICLE 7
1. Subject to paragraph 2, where an Australian benefit is payable
whether by virtue of this Agreement or otherwise to a person who is outside the
territory of Australia, the rate of that benefit shall be determined according
to the legislation of Australia but when assessing the income of that person for
the purposes of calculating the rate of the Australian benefit only a proportion
of any Austrian benefit which is received by that person shall be regarded as
income. That proportion shall be calculated by multiplying the number of whole
months accumulated by that person in a period of Australian working life
residence (not exceeding 300) by the amount of that Austrian benefit and
dividing that product by 300.
2. A person referred to in paragraph 1
shall only be entitled to receive the concessional assessment of income
described in that paragraph for any period during which the rate of that
person’s Australian benefit is proportionalised under the legislation of
Australia.
3. Where an Australian benefit is payable by virtue of this
Agreement or otherwise to a person who is in Austria, any compensatory
supplement or social assistance and similar means-tested payment paid by Austria
to that person shall be disregarded by Australia in computing that
person’s income for the purposes of the legislation of Australia or the
application of this Agreement.
4. Subject to the provisions of paragraph
5, where an Australian benefit is payable only by virtue of this Agreement to a
person who is in Australia, the rate of that benefit shall be determined
by:
(a) calculating that person’s income according to the
legislation of Australia but disregarding in that calculation the Austrian
benefit received by that person;
(b) deducting the amount of the Austrian
benefit received by that person from the maximum rate of that Australian
benefit; and
(c) applying to the remaining benefit obtained under
subparagraph (b) the relevant rate calculation set out in the legislation of
Australia, using as the person’s income the amount calculated under
subparagraph (a).
5. Where the rate of a benefit calculated in accordance
with paragraph 4 is less than the rate of that benefit which would be payable
under paragraphs 1, 2 and 3 if the person concerned were outside Australia, the
first-mentioned rate shall be increased to an amount equivalent to the
second-mentioned rate.
6. Where a married person is, or both that person
and his or her partner are, in receipt of an Austrian benefit or benefits, each
of them shall be deemed, for the purposes of paragraph 4 and for the legislation
of Australia, to be in receipt of one half of either the amount of that benefit
or total of both of those benefits, as the case may be.
7. For the
purposes of paragraph 5, a comparison of the rates of the benefits shall be made
as at:
(a) the date of the first pension pay day occurring after the date
from which the benefit is payable; and
(b) each anniversary of that pension
pay day for so long as the person concerned is entitled to the
benefit;
using, in that comparison, the number of months of the period
of Australian working life residence accumulated by the person at the date as at
which the comparison is made.
ARTICLE 8
A person who receives from Australia an Australian benefit due to the
fact that the partner of that person receives, by virtue of this Agreement,
another Australian benefit shall, for the purposes of this Agreement, be deemed
to receive that first-mentioned benefit by virtue of this
Agreement.
PART III—PROVISIONS CONCERNING AUSTRIAN
BENEFITS
ARTICLE 9
If a person has completed periods of insurance in Austria and periods
of Australian working life residence, those periods, insofar as they do not
overlap, shall be added together for the purpose of qualification for an
Austrian benefit.
ARTICLE 10
1. If a person who has completed periods of insurance in Austria and
periods of Australian working life residence, or the survivor of such a person,
is claiming a benefit, the competent institution for Austria shall determine the
amount of the benefit in the following manner:
(a) the institution shall
determine, in accordance with the Austrian legislation, whether the person
concerned has an entitlement to a benefit by adding together the periods as
provided in Article 9;
(b) if entitlement to a benefit is determined to
exist, the institution shall first calculate the theoretical amount of the
benefit which would be payable if all the periods completed under the
legislation of both Parties had been completed exclusively under the Austrian
legislation; in cases where the amount of the benefit is independent of the
duration of the period of insurance, this amount shall be taken to be the
theoretical amount; and
(c) the institution shall then calculate the partial
benefit payable on the basis of the amount calculated in accordance with the
provisions of subparagraph (b) in proportion to the ratio between the duration
of the periods of insurance to be taken into consideration under the Austrian
legislation and the total duration of the periods to be taken into consideration
under the legislation of both Parties.
2. Where the periods of insurance
to be taken into consideration under the Austrian legislation for the purpose of
calculating the amount of a benefit are in aggregate less than twelve months, no
benefit under that legislation shall be paid. However, the preceding sentence
shall not apply if the entitlement to that benefit has been acquired under the
Austrian legislation exclusively on the basis of periods of insurance completed
under that legislation.
ARTICLE 11
The competent Austrian institution shall apply Articles 9 and 10
according to the following rules:
1. In determining the institution
responsible for paying a benefit, only periods of insurance in Austria shall be
taken into consideration.
2. Periods of Australian working life
residence, during which the person concerned was employed or self-employed,
shall be treated as periods of contributions.
3. Articles 9 and 10 shall
apply neither to the conditions of entitlement to nor to the payment of the
miners’ long service allowance under the miners’ pension
insurance.
4. For the application of paragraph 1 of Article 10, the
following shall apply:
(a) periods during which the insured person has
been entitled to an age pension or invalid pension under the legislation of
Australia shall be treated as if they were neutral periods;
(b) the basis of
assessment shall be determined exclusively on periods of insurance in
Austria;
(c) the contributions for supplementary insurance as well as the
miners’ supplementary benefit, the helpless person’s allowance and
the compensatory supplement shall be disregarded.
5. For the application
of subparagraphs 1(b) and (c) of Article 10, overlapping periods under the
legislation of the two Parties shall be taken into consideration as if they did
not overlap.
6. If, for the application of subparagraph 1(c) of Article
10, the total duration of the periods to be taken into consideration under the
legislation of both Parties exceeds the maximum number of months of insurance
specified under the Austrian legislation for the calculation of the rate of
increments, the partial pension payable shall be calculated in proportion to the
ratio between the duration of the periods of insurance to be taken into
consideration under the Austrian legislation and the above-mentioned maximum
number of months of insurance.
7. For the calculation of the helpless
person’s allowance, subparagraphs 1(b) and (c) of Article 10 shall apply;
Article 13 shall apply accordingly.
8. The amount calculated according to
subparagraph 1(c) of Article 10 shall be increased, where applicable, by the
increments for contributions for supplementary insurance as well as the
miners’ supplementary benefit, the helpless person’s allowance and
the compensatory supplement.
9. If the award of benefits under the
miners’ pension insurance depends on the completion of essentially mining
activities, within the meaning of the Austrian legislation, in specific
undertakings, then only those periods of Australian working life residence
during which the person was employed in a similar occupation in similar
undertakings shall be taken into consideration.
10. The special payments
shall be payable in the same amount as the Austrian partial benefit; Article 13
shall apply accordingly.
ARTICLE 12
1. Where entitlement to a benefit exists under the Austrian legislation
without the application of Article 9, the competent Austrian institution shall
pay the pension which would be payable exclusively on the basis of the periods
of insurance to be taken into consideration under that legislation, provided
there is no entitlement to a corresponding benefit under the legislation of
Australia.
2. The pension determined in accordance with paragraph 1 shall
be recalculated in accordance with the provisions of Article 10 as soon as
entitlement arises to a corresponding benefit under the legislation of
Australia. This recalculation shall have effect from the date on which the
benefit under the legislation of Australia becomes payable. The irrevocability
of previous decisions shall not prevent this recalculation.
ARTICLE 13
If a person is entitled to a benefit under the Austrian legislation
without the application of Article 9, and if such a benefit would be greater
than the total of the Austrian benefit calculated in accordance with
subparagraph 1(c) of Article 10 and the corresponding Australian benefit, the
competent Austrian institution shall pay, as the partial benefit, its benefit so
calculated increased by the difference between such total and the benefit which
would be payable if the Austrian legislation alone were applied.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 14
Lodgement of documents
1. The date on which a claim, notice or appeal concerning the
determination or payment of a benefit under the legislation of a Party is lodged
with an authority, institution or other competent body of the other Party shall
be treated, for all purposes concerning the matter to which it relates, as the
date of lodgement of that document with an authority, institution or other
competent body of the first Party.
2. Any claim for a benefit under the
legislation of a Party shall be considered to be a claim for the corresponding
benefit under the legislation of the other Party for which the applicant may be
qualified if the applicant provides information at the time of claim indicating
that the person on whose record benefits are claimed has completed relevant
periods of residence or of insurance under the legislation of the other Party
and:
(a) the claim is lodged with the institution of the other Party;
or
(b) the claim is lodged with the institution of the first Party and that
institution sends the claim within three months of its lodgement with that
institution to the competent institution of the other Party.
3. In the
case to which paragraphs 1 and 2 of this Article apply, the body to which the
submission has been made shall forward the claim, notice or appeal without delay
to the corresponding competent body of the other Party.
ARTICLE 15
Advance Payments and Overpayments
1. Where an Austrian institution has made an advance payment to a
person for any period and arrears of a corresponding benefit become payable for
the same period under the legislation of Australia, the competent institution of
Australia shall deduct from those arrears the amount paid by way of advance
payment and shall transfer the amount so deducted to the Austrian institution.
Where an Austrian institution has overpaid a benefit for any period for which
the competent institution of Australia afterwards becomes liable to pay a
corresponding benefit, the overpayment shall be regarded, for the purpose of the
first sentence, as an advance payment.
2. Where
(a) an Austrian
benefit is paid or payable to a person in respect of a past period;
(b) for
all or part of that period, an Australian benefit has been paid to that person;
and
(c) the amount of the Australian benefit would have been reduced had the
Austrian benefit been paid during that period;
then
(d) the
amount of the Australian benefit that would not have been paid had the Austrian
benefit described in subparagraph (a) been paid on a periodical basis throughout
that past period, shall be a debt due by that person to the Commonwealth of
Australia; and
(e) Australia may determine according to the legislation of
Australia that the amount or any part of that debt may be deducted from future
payments of Australian benefit payable to that person.
3. Where an
Austrian institution has not yet paid the benefit described in subparagraph 2(a)
to the person:
(a) the Austrian institution shall, at the request of the
competent authority of Australia pay the amount of the benefit necessary to meet
the debt described in subparagraph 2(d) to the competent institution of
Australia and shall pay any excess to the person; and
(b) any shortfall may
be recovered by the competent authority of Australia under subparagraph
2(e).
ARTICLE 16
Payment of Benefits
1. The benefit-paying institution of a Party may discharge its
obligations under this Agreement in the national currency of that
Party.
2. A benefit payable by a Party by virtue of this Agreement shall
be paid by that Party without deduction for administrative fees and
charges.
ARTICLE 17
Administrative Arrangements and Mutual Assistance
1. The competent authorities of the Parties shall, by means of an
Arrangement, establish the administrative measures necessary for the application
of this Agreement.
2. The competent authorities shall inform each other
of laws that amend, supplement or replace the legislation of their respective
Parties.
3. The competent authorities and institutions of the Parties
shall assist each other, including by the communication of any information, in
applying the legislation specified in Article 2 and this Agreement, as if they
were applying their own legislation. With the exception of cash expenditures
relating thereto, such assistance shall be provided free of
charge.
4. The laws of a Party concerning confidentiality shall apply to
any information about an individual which is transmitted in accordance with this
Agreement to that Party by the other Party. Such information shall be used only
for purposes of applying this Agreement or the legislation of a
Party.
5. The competent authorities of the Parties shall, in order to
facilitate the application of this Agreement, particularly for the creation of a
simple and fast liaison between the institutions concerned, establish liaison
agencies.
6. The institutions and the competent authority of one Party
may not reject claims or other documents submitted to them by reason only of the
fact that they are written in an official language of the other
Party.
7. If the competent institution of one Party requires an applicant
or beneficiary who lives in the territory of the other Party to undergo a
medical examination, such examination shall, at the request of that institution,
be arranged or carried out by the institution of the latter Party at its
expense.
ARTICLE 18
Exemption from Taxes and from Authentication
1. Any exemption or reduction provided for in the legislation of one
Party for taxes, stamp duty, legal dues or registration fees for certificates or
documents which have to be submitted for the application of this legislation
shall be extended also to the respective certificates or documents which must
be submitted for the application of this Agreement or the legislation of the
other Party.
2. Documents and certificates of any kind which must be
submitted for the application of this Agreement shall not require
authentication.
ARTICLE 19
Resolution of Difficulties
1. Disagreements arising in connection with the application of this
Agreement shall, as far as possible, be resolved by mutual agreement between the
competent authorities of the Parties.
2. If any such disagreement has not
been resolved within a period of six months, either Party may submit the matter
to binding arbitration by an arbitral body whose composition and procedure shall
be agreed upon by the Parties.
PART V—TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 20
Transitional Provisions
1. This Agreement shall not establish any entitlement to payment of a
benefit for a period before its entry into force.
2. In determining
entitlement to a benefit under this Agreement, periods of insurance in Austria
and periods as an Australian resident completed before the entry into force of
this Agreement shall also be taken into consideration.
3. Subject to
paragraph 1, this Agreement shall also apply to contingencies which are relevant
to an entitlement which occurred before its entry into force, insofar as
previously determined entitlements have not been settled by lump-sum payments.
If in such cases the claim for a benefit which is payable only by virtue of this
Agreement is submitted within one year from the date of entry into force of this
Agreement, the benefit shall be determined and paid from that date; otherwise
the benefit shall be paid from the date determined under the legislation of each
Party.
4. Subject to the legislation of either Party this Agreement shall
not result in any reduction in the amount of any benefit to which entitlement
was established prior to its entry into force.
ARTICLE 21
Protection of Existing Rights
This Agreement shall not affect any existing rights under Austrian
legislation of any person who has suffered disadvantages in the field of social
security because of political or religious reasons or by reason of
descent.
ARTICLE 22
Entry into Force and Termination
1. This Agreement shall enter into force on the first day of the third
month following the month in which notes are exchanged by the Parties through
the diplomatic channel notifying each other that all matters as are necessary to
give effect to this Agreement have been finalised.
2. Subject to
paragraph 3, this Agreement shall remain in force until the expiration of twelve
months from the date on which either Party receives from the other written
notice through the diplomatic channel of the intention of the other Party to
terminate this Agreement.
3. In the event that this Agreement is
terminated in accordance with paragraph 2, the Agreement shall continue to have
effect in relation to all persons who:
(a) at the date of termination,
are in receipt of benefits; or
(b) prior to the expire of the period referred
to in that paragraph, have lodged claims for, and would be entitled to receive,
benefits;
by virtue of this Agreement.
IN WITNESS WHEREOF, the
undersigned, being duly authorised thereto by their respective Governments, have
signed this Agreement.
DONE in two copies at Canberra this first day of
April, 1992 in the English and German languages, each text being equally
authoritative.
FOR AUSTRALIA: FOR THE REPUBLIC OF
AUSTRIA:
NEAL BLEWETT WALTER HIETSCH
[Signatures
omitted]
Note: See section 5.
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND THE
REPUBLIC OF CYPRUS
AUSTRALIA AND THE REPUBLIC OF CYPRUS,
Wishing to strengthen the
existing friendly relations between the two countries, and
Resolved to
coordinate their social security systems;
Have agreed as
follows:
PART I—GENERAL PROVISIONS
ARTICLE 1
Definitions
1. In this Agreement, unless the context otherwise
requires:
(a) “benefit” means in relation to a Party, a
benefit, pension or allowance for which provision is made in the legislation of
that Party, and includes any additional amount, increase or supplement that is
payable in addition to that benefit, pension or allowance to or in respect of a
person who qualifies for that additional amount, increase or supplement under
the legislation of that Party;
(b) “carer pension” means a carer
pension payable to the partner of a person who is in receipt of a disability
support pension for the severely disabled or an age pension where that partner
is legally married to that person;
(c) “Competent Authority”
means;
in relation to Australia:
the Secretary to the Department of
Social Security; and,
in relation to Cyprus:
the Minister of Labour and
Social Insurance;
(d) “Competent Institution”
means;
in relation to Australia:
the Department of Social Security;
and,
in relation to Cyprus:
the Department of Social Insurance Services,
Ministry of Labour and Social Insurance;
(e) “legislation”
means the laws specified in Article 2;
(f) “period of Australian
working life residence”, in relation to a person, means a period defined
as such in the legislation of Australia;
(g) “period of
insurance” means a period for which contributions have been paid or
credited or a period of paid or credited insurable earnings under the
legislation of Cyprus;
(h) “territory” means;
in relation
to Australia:
Australia as defined in the legislation of Australia;
and
in relation to Cyprus:
the island of
Cyprus;
(i) “welfare benefit” means, in relation to Cyprus,
any benefit payable under the Public Assistance Law of 1991 and any law
to provide a similar means tested benefit from public funds that subsequently
amends, supplements or replaces it and any rent allowance payable out of the
Fund established under the Rent Control Laws of 1983 and 1991 and any law
to provide a similar means-tested rent allowance from public funds that
subsequently amends, supplements or replaces
them;
and
(j) “widow” means, in relation to
Australia, a de jure widow but does not include a woman who has a
partner.
2. In the application by a Party of this Agreement in relation
to a person, any term not defined in this Article shall, unless the context
otherwise requires, have the meaning assigned to it in the legislation of either
Party or, in the event of a conflict of meaning, by whichever of those laws is
the more applicable to the circumstances of that person.
ARTICLE 2
Legislative Scope
1. Subject to paragraph 2, this Agreement shall apply to the following
laws, as amended at the date of signature of this Agreement, and to any laws
that subsequently amend, supplement or replace them:
(a) in relation to
Australia: the Social Security Act 1991 in so far as the Act provides
for, applies to or affects the following benefits:
(i) age
pension;
(ii) disability support pension for the severely
disabled;
(iii) pensions payable to widows;
(iv) widowed person allowance;
and
(v) carer pension; and
(b) in relation to Cyprus: the Social
Insurance Laws of 1980 to 1990 in so far as the Laws provide for, apply to
or affect social insurance benefits for:
(i) age;
(ii) invalidity and
work-related disablement;
(iii) survivorship;
and
(iv) funerals.
2. Notwithstanding the provisions of paragraph 1,
neither the legislation of Australia nor the legislation of Cyprus shall include
any laws made at any time for the purpose of giving effect to any agreement on
Social Security.
3. This Agreement shall apply to laws which extend the
legislation of either Party to new categories of beneficiaries only if the two
Parties so agree in a Protocol to this Agreement.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been
an Australian resident; or
(b) is or has been subject to the legislation of
Cyprus,
and, where applicable, to other persons in regard to the rights
they derive from the person described above.
ARTICLE 4
Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies
shall be treated equally by a Party in regard to rights and obligations which
arise whether directly under the legislation of that Party or by virtue of this
Agreement.
ARTICLE 5
Application of the Legislation of Cyprus
1. Subject to the following paragraphs, where a person to whom this
Agreement applies is gainfully occupied in the territory of Cyprus the
person’s liability to be insured under the legislation of Cyprus shall be
determined under that legislation, even if the person’s place of residence
and/or the employer’s place of business is in Australia.
2. Where a
person insured under the legislation of Cyprus is sent by an employer to work
temporarily in Australia the person shall continue to be subject to the
legislation of Cyprus during the first 24 months of employment in
Australia.
3. A person who is employed as a member of the crew of a
seagoing ship flying the Cyprus flag shall be subject to the legislation of
Cyprus if the person is ordinarily resident in Cyprus.
4. Subject to the
provisions of paragraph 5, a person employed by the Government or other public
corporation of Cyprus sent by that Government or corporation to work in
Australia shall continue to be subject to the legislation of Cyprus as if
employed in Cyprus. A person employed by the Government or other public
corporation of Australia in Cyprus shall be subject to the legislation of Cyprus
if ordinarily a resident of Cyprus.
5. This Article does not apply to any
person who falls within the scope of the Vienna Convention on Diplomatic
Relations or the Vienna Convention on Consular Relations.
6. The
Competent Authorities of the two Parties may provide, by agreement with one
another, exceptions to the provisions of this Article where this is in the
interest of persons affected thereby.
7. Where in accordance with the
provisions of this Article a person is insured under the legislation of Cyprus
while gainfully occupied in Australia, that legislation shall apply to that
person as if he or she were gainfully occupied in Cyprus.
PART II—PROVISIONS RELATING TO
BENEFITS
AUSTRALIAN BENEFITS
ARTICLE 6
Residence or Presence in Cyprus or a Third State
1. Where a person would be qualified under the legislation of Australia
or by virtue of this Agreement for a benefit except for not being an Australian
resident and in Australia on the date on which the claim for that benefit is
lodged, but:
(a) is an Australian resident or residing in the territory
of Cyprus or a third State with which Australia has concluded an agreement on
social security that includes provision for co-operation in the assessment and
determination of claims for benefits; and
(b) is in Australia, or the
territory of Cyprus or that third State,
that person shall be deemed,
for the purposes of lodging that claim, to be an Australian resident and in
Australia on that date.
2. Paragraph 1 shall not apply to a claimant for
a carer pension who has never been an Australian resident.
ARTICLE 7
Partner related Australian Benefits
A person who receives from Australia any Australian pension, benefit or
allowance under the social security laws of Australia due to the fact that the
partner of that person receives, by virtue of this Agreement, an Australian
benefit, shall be deemed to be receiving that pension, benefit or allowance by
virtue of this Agreement but shall cease to qualify for that pension, benefit or
allowance, if he or she is not physically present in Australia but, when that
person is receiving a carer pension, he or she shall not cease to qualify for
that pension while he or she is physically present in Cyprus.
ARTICLE 8
Totalisation for Australia
1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has accumulated:
(a) a period
as an Australian resident that is less than the period required to qualify that
person, on that ground, under the legislation of Australia for a benefit;
and
(b) a period of Australian working life residence equal to or greater
than the period identified in accordance with paragraph 5 for that person;
and
(c) a period of insurance;
then for the purposes of a claim for
that Australian benefit, that period of insurance shall be deemed, only for the
purposes of meeting any minimum qualifying periods for that benefit set out in
the legislation of Australia, to be a period in which that person was an
Australian resident.
2. For the purposes of paragraph 1, where a
person:
(a) has been an Australian resident for a continuous period which
is less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit; and
(b) has
accumulated a period of insurance in two or more separate periods that equals or
exceeds in total the period referred to in subparagraph (a),
the total
of the periods of insurance shall be deemed to be one continuous
period.
3. For the purposes of converting a person’s period of
insurance to a period when that person was an Australian
resident:
(a) each week of insurance completed before 6 October 1980
under the legislation of Cyprus shall be treated as a week when that person was
an Australian resident under the legislation of Australia; and
(b) the
insurable earnings for any period of insurance completed from 6 October 1980
under the legislation of Cyprus shall be divided by the weekly amount of the
basic insurable earnings applicable in the relevant contribution year. The
figure so calculated, subject to the maximum number of weeks during which the
person was subject to that legislation in that year, shall be treated as
representing the number of weeks in the insurance period. Each week shall be
treated as equivalent to one week when that person was an Australian
resident.
4. For all purposes of this Article, where a period by a person
as an Australian resident and a period of insurance coincide, the period of
coincidence shall be taken into account once only by Australia as a period as an
Australian resident.
5. The minimum period of Australian working life
residence to be taken into account for the purposes of paragraph 1 shall be as
follows:
(a) for the purposes of an Australian benefit that is payable to
a person who is not an Australian resident, the minimum period required shall be
12 months, of which at least six months must be continuous; and
(b) for the
purposes of an Australian benefit that is payable to an Australian resident no
minimum period shall be required.
ARTICLE 9
Calculation of Australian Benefits
1. Subject to paragraph 2, where an Australian benefit is payable,
whether by virtue of this Agreement or otherwise, to a person who is outside
Australia, the rate of that benefit shall be determined according to the
legislation of Australia but, when assessing the income of that person for the
purposes of calculating the rate of the Australian benefit, only a proportion of
any Cyprus social insurance benefit received by that person shall be regarded as
income. That proportion shall be calculated by multiplying the number of whole
months accumulated by that person in a period of residence in Australia (not
exceeding 300) by the amount of that Cyprus social insurance benefit and
dividing that product by 300.
2. Only a person receiving a
proportionalised Australian benefit under the legislation of Australia shall be
entitled to receive the concessional assessment of income described in paragraph
1.
3. Where an Australian benefit is payable, whether payable by virtue
of this Agreement or otherwise, to a person who is a resident of Cyprus,
Australia shall disregard, when assessing the income of that person, any welfare
benefit paid to that person by Cyprus.
4. Subject to the provisions of
paragraph 5, where an Australian benefit is payable only by virtue of this
Agreement to a person who is in Australia, the rate of that benefit shall be
determined by:
(a) calculating that person’s income according to
the legislation of Australia but disregarding in that calculation the Cyprus
benefit received by that person;
(b) deducting the amount of the Cyprus
benefit received by that person from the maximum rate of that Australian
benefit; and
(c) applying to the remaining benefit obtained under
subparagraph (b) the relevant rate calculation set out in the legislation of
Australia, using as the person’s income the amount calculated under
subparagraph (a).
5. Where a member of a couple is, or both that member
and his or her partner are, in receipt of a Cyprus benefit or benefits, each of
them shall be deemed, for the purpose of paragraph 4 and for the legislation of
Australia, to be in receipt of one half of either the amount of that benefit or
total of both of those benefits, as the case may be.
6. If a person would
receive an Australian benefit except for the operation of paragraph 4 or except
for that person’s failure to claim the benefit, then for the purposes of a
claim by that person’s partner for a payment under the legislation of
Australia that person shall be deemed to receive that benefit.
7. The
reference in paragraph 6 to a payment under the legislation of Australia to the
partner of a person is a reference to a payment of any pension, benefit or
allowance payable under the social security laws of Australia and whether
payable by virtue of this Agreement or otherwise.
PART III—PROVISIONS RELATING TO CYPRUS
BENEFITS
ARTICLE 10
Totalisation for Cyprus
1. Subject to paragraph 4, if a person is not entitled to benefit on
the basis of insurance periods completed under the legislation of Cyprus alone
entitlement for that benefit shall be determined by totalising these periods
with periods of Australian working life residence to the extent necessary for
entitlement to benefit.
2. In applying the provisions of paragraph 1, no
account shall be taken of any period of working life residence in Australia
completed prior to 7 January 1957.
3. For the purposes of this Article
where a period of insurance and a period of Australian working life residence
coincide, the period of coincidence shall be taken into account once only as a
period of insurance.
4. Paragraph 1 shall not apply if the period of
insurance is less than 52 weeks, except where the required period of insurance
for entitlement to a benefit under the legislation of Cyprus is less than 52
weeks.
5. For the purpose of converting a period of Australian working
life residence into a period of insurance under the legislation of Cyprus, a
person shall be treated for each week of working life residence in Australia as
having insurable earnings under the legislation of Cyprus equal to the weekly
amount of basic insurable earnings.
ARTICLE 11
Calculation of Cyprus Benefits
1. Subject to paragraph 2, the amount of benefit payable under the
provisions of Article 10 shall be determined as follows:
(a) the
Competent Institution of Cyprus shall calculate the theoretical basic benefit
that would be payable if the periods of insurance completed under the
legislation of Cyprus and the periods of Australian working life residence,
totalised as provided in paragraph 1 of Article 10, had been periods of
insurance under the legislation of Cyprus alone;
(b) it shall then prorate
the theoretical basic benefit so calculated by the fraction which represents the
ratio of the insurance periods completed under the legislation of Cyprus in
relation to the total of the insurance periods completed under that legislation
and the periods of Australian working life residence which are taken into
account; and
(c) the amount of the supplementary benefit shall be determined
exclusively on the basis of periods of insurance completed under the legislation
of Cyprus.
2. The amount of the funeral benefit payable under the
legislation of Cyprus shall be calculated as if the periods of residence, which
are taken into account as provided in paragraph 1 of Article 10, were periods of
insurance under the legislation of Cyprus alone.
ARTICLE 12
Work-related disablement
1. Subject to paragraph 2, pensions for work-related disablement under
the legislation of Cyprus shall be paid by virtue of this agreement in respect
of disablement which occurs while a person is insured under that legislation and
employed in an occupation which is valid for the purposes of that
legislation.
2. The rate of a pension for work-related disablement paid
by virtue of this Agreement shall be calculated as if the impairment which
qualified a person for a benefit under the legislation of Australia had occurred
under the legislation of Cyprus.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE
PROVISIONS
ARTICLE 13
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by a
Party by virtue of this Agreement or otherwise, may be lodged in the territory
of the other Party in accordance with the Administrative Arrangement made
pursuant to Article 17 at any time after the Agreement enters into
force.
2. For the purposes of assessing entitlement to a benefit, the
date on which a claim, notice or appeal referred to in paragraph 1 is lodged
with the Competent Institution of a Party shall be treated as the date of
lodgement of that document with the Competent Institution of the
other.
3. In relation to Australia, the reference in this Article to an
appeal document is a reference to a document concerning an appeal that may be
made to an administrative body established by the social security laws of
Australia.
ARTICLE 14
Determination of Claims
1. In determining the eligibility or entitlement of a person to a
benefit by virtue of this Agreement:
(a) a period as an Australian
resident and a period of insurance; and
(b) any event or fact which is
relevant to that entitlement,
shall, subject to this Agreement, be taken
into account in so far as those periods, events or facts are applicable in
regard to that person no matter when they were accumulated or
occurred.
2. The commencement date for payment of a benefit payable by
virtue of this Agreement shall be determined in accordance with the legislation
of the Party concerned but shall never be earlier than the date on which this
Agreement enters into force and a funeral grant under the legislation of Cyprus
shall not be made if the relevant death occurred before this Agreement enters
into force.
3. Where:
(a) a benefit payable by virtue of this
Agreement by one of the Parties is claimed or is being paid; and
(b) there
are reasonable grounds for believing that the claimant may also be entitled,
whether by virtue of this Agreement or otherwise, to a benefit from the other
Party and that, if paid, would affect the amount of the first mentioned
benefit,
that first mentioned benefit shall not be paid or continue to
be paid until a claim is duly lodged for payment of the benefit from the other
Party or if the claim for the other Party’s benefit is not actively
pursued.
4. Where:
(a) a benefit is paid or payable by a Party to
a person in respect of a past period; and
(b) for all or part of that period,
the other Party has paid to that person a benefit under its legislation;
and
(c) the amount of the benefit paid by that other Party would have been
reduced had the benefit paid or payable by the first Party been paid during that
period;
then
(d) the amount that would not have been paid by the
other Party had the benefit described in subparagraph (a) been paid on a
periodical basis throughout that past period, shall be a debt due by that person
to the other Party; and
(e) the other Party may determine that the amount or
any part of that debt may be deducted from future payments of a benefit payable
by that Party to that person.
5. Where the first Party has not yet paid
the benefit described in subparagraph 4(a) to the person:
(a) that Party
shall, at the request of the other Party, pay the amount of the benefit
necessary to meet the debt described in subparagraph 4(d) to the other Party and
shall pay any excess to the person; and
(b) any shortfall may be recovered by
the other Party under subparagraph 4(e).
6. The Competent Institution
receiving a request under paragraph 5 shall transfer the amount of the debt to
the Competent Institution making the request.
7. A reference in
paragraphs 3, 4 and 5 to a benefit, in relation to Australia, means a pension,
benefit or allowance payable under the social security laws of Australia and, in
relation to Cyprus, means any pension, benefit or allowance payable under the
social insurance laws of Cyprus.
ARTICLE 15
Payment of Benefits
1. Benefits of one Party, when payable by virtue of this Agreement, are
also payable in the territory of the other Party.
2. Where the
legislation of a Party provides that a benefit is payable outside the territory
of that Party, then that benefit, when payable by virtue of this Agreement, is
also payable outside the territories of both Parties.
3. Subject to
Article 7, where qualification for a benefit of one Party is subject to
limitations as to time, then references to that Party in those limitations shall
be read also as references to the territory of the other Party when that benefit
is payable by virtue of this Agreement.
4. If a Party imposes legal or
administrative restrictions on the transfer of its currency abroad, both Parties
shall adopt measures as soon as practicable to guarantee the rights to payment
of benefits derived under this Agreement. Those measures shall operate
retrospectively to the time the restrictions were imposed.
5. A benefit
payable by a Party by virtue of this Agreement shall be paid by that Party
without deduction for government administrative fees and charges for processing
and paying that benefit whether the beneficiary is in the territory of the other
Party or outside the respective territories of both Parties.
6. Any
exemption granted in the territory of one of the Parties from stamp duty,
notarial or registration fees in respect of certificates and documents required
to be submitted to the Competent Authorities and Competent Institutions in the
same territory shall also apply to certificates and documents which, for the
purposes of this Agreement, have to be submitted to the Competent Authorities
and Competent Institutions in the territory of the other Party. Documents and
certificates required to be produced for the purpose of this Agreement shall be
exempt from authentication by diplomatic and consular authorities.
ARTICLE 16
Exchange of Information and Mutual Assistance
1. The Competent Authorities and Competent Institutions responsible for
the application of this Agreement:
(a) shall communicate to each other
any information necessary for the application of this Agreement;
(b) shall
lend their good offices and furnish assistance to one another, including the
communication to each other of any necessary information, with regard to the
determination or payment of any benefit under this Agreement or under the social
security laws of either Party as if the matter involved the application of their
own legislation;
(c) shall communicate to each other, as soon as possible,
all information about the measures taken by them for the application of this
Agreement or about changes in their respective legislation in so far as these
changes affect the application of this Agreement; and
(d) at the request of
one to the other, assist each other in relation to the implementation of
agreements on social security entered into by either of the Parties with third
States, to the extent and in the circumstances specified in the Administrative
Arrangement made in accordance with Article 17.
2. The assistance
referred to in paragraph 1 shall be provided free of charge, subject to any
Administrative Arrangement made pursuant to Article 17.
3. Unless
disclosure is required under the laws of a Party, any information about an
individual which is transmitted in accordance with this Agreement to a Competent
Authority or an Institution of that Party by a Competent Authority or an
Institution of the other Party is confidential and shall be used only for
purposes of implementing this Agreement and the social security laws of either
Party.
4. In no case shall the provisions of paragraphs 1 and 3 be
construed so as to impose on the Competent Authority or Institution of a Party
the obligation:
(a) to carry out administrative measures at variance with
the laws or the administrative practice of that or the other Party; or
(b) to
supply particulars which are not obtainable under the laws or in the normal
course of the administration of that or of the other Party.
5. In the
application of this Agreement, the Competent Authority and the Institutions of a
Party may communicate with the Competent Authority and the Institutions of the
other Party in the official language of the first Party.
ARTICLE 17
Administrative Arrangement
The Competent Authorities of the Parties shall make whatever
Administrative Arrangement is necessary in order to implement this
Agreement.
ARTICLE 18
Resolution of difficulties
1. The Competent Authorities of the
Parties shall resolve, to the extent possible, any difficulties which arise in
interpreting or applying this Agreement according to its spirit and fundamental
principles.
2. The Parties shall consult promptly at the request of
either concerning matters which have not been resolved by the Competent
Authorities in accordance with paragraph 1.
ARTICLE 19
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the
Parties shall meet for that purpose no later than 6 months after that request
was made and, unless the Parties otherwise agree, their meeting shall be held in
the territory of the Party to which that request was made.
PART V—TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 20
Entry Into Force and Termination
1. This Agreement shall enter into force on the first day of the second
month after an exchange of notes by the Parties through the diplomatic channel
notifying each other that all constitutional or legislative matters as are
necessary to give effect to this Agreement have been
finalised.
2. Subject to paragraph 3, this Agreement shall remain in
force until the expiration of 12 months from the date on which either Party
receives from the other a note through the diplomatic channel indicating the
intention of the other Party to terminate this Agreement.
3. In the event
that this Agreement is terminated in accordance with paragraph 2, the Agreement
shall continue to have effect in relation to all persons who:
(a) at the
date of termination, are in receipt of benefits; or
(b) prior to the expiry
of the period referred to in that paragraph, have lodged claims for, and would
be entitled to receive, benefits,
by virtue of this Agreement.
IN
WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this Agreement.
DONE in two copies at
Nicosia this twelfth day of May 1992,
in the English and Greek
languages.
DAVID SIMMONS I ARISTIDOU
FOR AUSTRALIA FOR THE
REPUBLIC OF CYPRUS
[Signatures omitted]