SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) ACT 1999 NO. 173, 1999 - SCHEDULE 10

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SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) ACT 1999 NO. 173, 1999 - SCHEDULE 10

- Austria

: 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]

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