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SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) ACT 1999 NO. 173, 1999 - SCHEDULE 8
- Ireland
- 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]
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