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SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) ACT 1999 AMENDMENT REGULATIONS 2001 (NO. 2) 2001 NO. 245 - SCHEDULE 1
Amendment
(regulation 3)
[1] Schedule 9
substitute
Schedule 9 Portugal
Note:
See section 5.
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF PORTUGAL
ON SOCIAL SECURITY
Australia and the Republic of Portugal (hereinafter "the
Parties"),
Wishing to strengthen the existing friendly relations between the
two countries,
Desiring to review the Agreement between Australia and the
Republic of Portugal on Social Security signed on 30 April 1991, and
Acknowledging the need to coordinate further the operation of their respective
social security systems so as to ensure access by people who move between
Australia and Portugal and to eliminate double coverage;
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 but, for
Australia, does not include any benefit, payment or entitlement under the law
concerning the superannuation guarantee;
(b) "carer payment" means a carer
payment for a person in Portugal who is caring for a partner who is in receipt
of an Australian age pension or disability support pension for the severely
disabled and who is also in Portugal;
(c) "Competent Authority" means:
in relation to Australia: the Secretary to the Department responsible for the
application of the legislation in subparagraph 1 (a) (i) of Article
2 except in relation to the application of Part III of the Agreement
(including the application of other Parts of the Agreement as they affect the
application of that Part) where it means the Commissioner of Taxation or an
authorised representative of the Commissioner; 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 institution or agency responsible for the
administration of the legislation; and,
in relation to Portugal:
(i) the
institution with which the person concerned is insured at the time of the
application for benefit; or
(ii) the institution from which the person
concerned is entitled or would be entitled to benefits if he or she or a
member or members of his or her family were resident in the territory of the
Party in which the institution is situated; or
(iii) the institution
designated by the Competent Authority of Portugal;
(e) "Government
employment" in relation to Australia includes employment by a political
subdivision or local authority of Australia";
(f) "legislation" means, in
relation to Australia, the law specified in subparagraph 1 (a) (i)
of Article 2 except in relation to the application of Part III of the
Agreement (including the application of other Parts of the Agreement as they
affect the application of that Part) where it means the law specified in
subparagraph 1 (a) (ii) of Article 2; and in relation to Portugal,
any laws, regulations and other statutory instruments which are in force in
the whole or any part of its territory and which relate to the social security
schemes specified in Article 2;
(g) "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 16 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 18 as a Portuguese insurance period;
(i) "previous Agreement" means the Agreement between the Government of
Australia and the Government of the Republic of Portugal on Social Security
signed on 30 April 1991;
(j) "territory" means, in relation to
Australia, Australia as defined in the legislation of Australia; and, in
relation to Portugal, the territory of the Republic of Portugal on the
European continent and the archipelagos of the Azores and Madeira;
(k)
"widow" means:
in relation to Australia:
- a de jure widow; or
- a woman who was a member
of a couple for 3 years immediately before her partner died and was
wholly or mainly financially maintained by him;
- but does not include a
woman who has a partner;
and in relation to Portugal:
- a de jure widow; or
- a legally separated woman or divorced woman entitled to alimony; or
- a
person covered by paragraph 1 of Article 2020 of the Civil Law Code.
2.
In the application of this Agreement by a Party, any term not defined in it
shall, unless the context otherwise requires, have the meaning which it has
under the legislation of that 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, supplement or replace them:
(a) in relation to Australia:
(i) the
Acts forming the social security law in so far as the law provides for,
applies to or affects the following benefits:
- age pension;
- disability support pension for the severely disabled;
- wife pension;
- carer payment;
- pensions payable to widows;
- bereavement allowance;
- additional child amount;
- double orphan pension; and
(ii) the law concerning the superannuation
guarantee (which at the time of signature of this Agreement is contained in
the Superannuation Guarantee (Administration) Act 1992 , the
Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee
(Administration) Regulations);
(b) in relation to Portugal:
(i) the
legislation relating to the general scheme (including the voluntary social
insurance scheme) and the special schemes (excluding provisions for civil
servants or persons treated as such) of the social security system in respect
of the following benefits:
- old age pension;
- invalidity pension;
- survivors' pension and death grant;
- supplement for care;
- sickness and maternity benefits;
- unemployment benefit;
- funeral grant; and
- family allowance for children and young people of pensioners;
(ii) the
legislation relating to work injuries and occupational diseases pensions; and
(iii) the legislation relating to the non-contributory scheme in respect of
old age, invalidity and survivors' pensions and supplement for care.
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 also
apply to any laws and regulations which extend the existing legislation to new
categories of beneficiaries if the Government of the Party concerned does not
notify of an objection in writing to the Government of the other Party within
6 months from the official publication of those laws and regulations.
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 other persons in regard to
the rights they derive from the person described in this Article.
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 regarding eligibility for and payment of benefits 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
Export 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 benefit under the legislation of Portugal and Portuguese pensions
specified in subparagraph 1 (b) (iii) of Article 2 shall not be paid
outside the territory of Portugal.
PART II - COMMON 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 employed or resident 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 Social
Security Coverage The Competent Authorities will, in accordance with their
countries' respective legislation, decide on the social security coverage to
be applied in the best interests of a person.
PART III
PROVISIONS FOR
AVOIDING DOUBLE COVERAGE
ARTICLE 9
Purpose of Part
The purpose of this Part
is to ensure that employers and employees who are subject to the legislation
of Portugal or Australia do not have a double liability under the legislation
of Portugal and Australia, in respect of the same work of an employee.
ARTICLE 10
Application of Part
This Part only applies if an employee and/or
the employer of the employee would, apart from this Part, be subject to the
legislation of both Parties in respect of work of the employee or remuneration
paid for the work.
ARTICLE 11
Diplomatic and Consular Relations
This
Agreement shall not affect the provisions of the Vienna Convention on
Diplomatic Relations of 18 April 1961, or the Vienna Convention on Consular
Relations of 24 April 1963.
ARTICLE 12
Application of legislation
1. Unless
otherwise provided in paragraphs 2, 4 and 5, if an employee works in the
territory of one Party, the employer of the employee and the employee shall in
respect of the work and the remuneration paid for the work be subject only to
the legislation of that Party.
2. If an employee:
(a) is covered by the
legislation of one Party (`the first Party'); and
(b) was sent, whether
before, on or after the commencement of this Part, by an employer who is
subject to the legislation of the first Party to work in the territory of the
other Party (`the second Party'); and
(c) is working in the territory of the
second Party in the employment of the employer or a related entity of that
employer of the employee; and
(d) was sent to work in the territory of the
second Party and a period of 4 years has not elapsed from that time; and
(e)
is not working permanently in the territory of the second Party;
the employer
and employee shall be subject only to the legislation of the first Party in
respect of that work occurring after the commencement of this Part and the
remuneration paid for such work.
3. For the purposes of subparagraph
2 (c), an entity is a related entity of an employer if the entity and the
employer are members of the same wholly or majority owned group.
4. Despite
anything in paragraph 2:
(a) where an employee is employed in an official
administrative service in respect of Portugal and is seconded in the course
of that employment to the territory of Australia, the legislation of Australia
shall not apply to the employee and the employer in respect of that employment
and the employee and employer shall remain subject to the legislation of
Portugal in respect of that employment;
(b) where an employee is employed in the Government employment in respect
of Australia and is seconded in the course of that employment to the
territory of Portugal, the legislation of Portugal shall not apply to
the employee and the employer in respect of that employment and the
employee and the employer shall remain subject to the legislation of
Australia in respect of that employment.
5. If an employee is working
in the employment of an employer on a ship or aircraft in
international traffic, the employer of the employee shall in respect
of the employment and the remuneration paid for that employment be
subject only to the legislation of the Party of which the employee is
resident.
ARTICLE 13
Exception agreements
1. The competent
authorities for Australia and Portugal may for the purposes of this
Part by agreement in writing:
(a) extend the period of 4 years
referred to in subparagraph 2 (d) of Article 12 for any employee;
or
(b) provide that an employee is taken to work in the territory of
a particular Party or to work on a ship or aircraft in international
traffic under the legislation of a particular Party and is subject
only to the legislation of that Party.
2. Any agreement made under
paragraph 1 may apply to:
(a) a class of employees; and/or
(b)
particular work or particular type of work (including work that has
not occurred at the time the agreement is made).
PART IV- PROVISIONS
RELATING TO BENEFITS
SECTION I - AUSTRALIAN BENEFITS
ARTICLE 14
Residence or Presence in Portugal or a Third State
1. Where a person
would not qualify for a benefit under the legislation of Australia or
by virtue of this Agreement only because he or she was not an
Australian resident and present in Australia on the date on which the
claim for that benefit would be lodged but that person:
(a) is an
Australian resident or a resident of Portugal (or a third country with
which Australia has implemented an agreement on social security that
includes provision for cooperation in the lodgement and determination
of claims for benefits); and
(b) is physically in Australia, or in
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 carer payment who has never been an Australian
resident.
3. For the purposes of qualification for a carer payment as defined
in this Agreement, which is payable by virtue of this Agreement, a person who
is in Portugal shall be regarded as being in Australia.
ARTICLE 15
Partner
Related Australian Benefits
For the purposes of this Agreement, a person who
receives an Australian benefit due to the fact that the partner 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 16
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 4; and
(c) a Portuguese insurance period,
then that Portuguese insurance period shall be deemed to be a period in which
that person was an Australian resident
- only if that Portuguese insurance
period has already been used or can be used at the time of totalisation, to
obtain a Portuguese benefit, and
- only for the purposes of meeting any
minimum qualifying periods for that benefit set out in the legislation of
Australia.
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 Australian working life
residence (as defined in Article 1) to be taken into account for the purposes
of subparagraph 1 (b) shall be as follows:
(a) for the purposes of an
Australian benefit claimed by 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 claimed
by an Australian resident, there shall be no minimum period of residence in
Australia required.
ARTICLE 17
Calculation of Australian Benefits
1.
Subject to paragraphs 2 and 4, 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
subparagraphs 1 (b) (i) or (ii) of Article 2 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. The provisions in
paragraphs 1 and 2 shall continue to apply for 26 weeks where a person comes
temporarily to Australia.
4. 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 subparagraph 1 (b) (iii) of Article 2; 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.
5. Subject to paragraph 6, 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).
6. Where a member of a couple is, or both that person and
his or her partner are, entitled to a Portuguese benefit or benefits, each of
them shall be deemed, for the purpose of paragraph 5 and for the legislation
of Australia, to receive one half of either the amount of that benefit or the
total of both of those benefits, as the case may be.
7. The provisions in
paragraph 5 shall continue to apply for 26 weeks where a person departs
temporarily from Australia.
SECTION II - PORTUGUESE BENEFITS
SUB-SECTION I -
OLD-AGE, INVALIDITY AND SURVIVORS' PENSIONS
ARTICLE 18
Totalisation for
Portugal
1. For the purposes of this Agreement, when insurance periods
completed under the Portuguese legislation are:
(a) less than the period
required for the acquisition, retention or recovery of the right to benefits
under that legislation, and
(b) have the duration of at least one calendar
year
then the periods of Australian working life residence shall be deemed as
Portuguese insurance periods provided that they do not coincide.
2. For the
purposes of this Article the upper age limit for a woman, set in the
definition of a period of Australian working life residence 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 19
Rules for the Granting of Portuguese Pensions
1. Subject to
paragraph 3, the Portuguese Competent Institution shall determine the rate of
Portuguese benefits in accordance with Portuguese legislation and, in relation
to old age pension, invalidity pension and survivors' 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 pension payable under the legislation of Australia shall not be
taken into account.
SUB-SECTION II - OTHER PORTUGUESE BENEFITS
ARTICLE 20
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 Australian working
life residence shall be deemed as periods accomplished under Portuguese
legislation, provided that they do not coincide.
ARTICLE 21
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 Australian working life
residence, during which an occupational activity has been pursued as an
employee or Australian newstart allowance 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 22
Family benefits for pensioners
Family allowances for children and young
people payable under the legislation of Portugal 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 and those family allowances shall for the purposes of
reciprocity in relation to this Agreement be regarded as the Portuguese
benefit equivalent to Australian additional child amount.
ARTICLE 23
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 Portugal.
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 V- MISCELLANEOUS PROVISIONS
ARTICLE 24
Lodgement of Documents
1. A
claim, notice or appeal concerning a benefit, whether payable by virtue of
this Agreement or otherwise, may be lodged in the territory of either Party in
accordance with administrative arrangements made pursuant to Article 28 at any
time after the Agreement enters into force.
2. For the purpose of determining
the right to a benefit, the date on which a claim, notice or appeal referred
to in paragraph 1 is lodged with the Competent Institution of one Party shall
be considered as the date of lodgement of that document with the Competent
Institution of the other Party. The Competent Institution with which a claim,
notice or appeal is lodged shall refer it without delay to the Competent
Institution of the other 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 25
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 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:
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.
4. Where the first Party has not yet paid the arrears of benefit
described in paragraph 3 to the person:
(a) that Party shall, at the request
of the other Party, pay the amount of the debt described in paragraph 3 to the
other Party and shall pay any excess to the person in line with the provisions
set out in administrative arrangements made in accordance with Article 28; and
(b) any shortfall in those arrears may be recovered by the other Party.
5. A
reference in paragraph 3 or 4 to a benefit, in relation to Australia, means a
pension, benefit or allowance that is payable under the Acts forming the
social security law 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 26
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 from 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.
ARTICLE 27
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 for the application of
this Agreement, 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 Competent 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 28.
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 28.
4. Any information
about a person which is transmitted in accordance with this Agreement to a
Competent Institution shall be protected in the same manner as information
obtained under the legislation of that Party.
5. Notwithstanding any laws or
administrative practices of a Party, no information concerning a person which
is received by that Party from the other Party shall be transferred or
disclosed to any other country or to any other organisation within that other
country without the prior written consent of that other Party.
6. In no case
shall the provisions of paragraphs 1, 2 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 of the other Party.
7. 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.
8. In this Article "legislation" means all the laws referred to in Article 2
without any of the restrictions contained in Article 2.
ARTICLE 28
Administrative Arrangements
The Competent Authorities of the Parties shall
make whatever administrative arrangements are necessary in order to implement
this Agreement.
ARTICLE 29
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 Party concerning matters which have not been
resolved by the Competent Authorities in accordance with paragraph 1.
ARTICLE 30
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 VI- TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 31
Transitional Provisions
Where, on the date on which this Agreement enters
into force, a person:
(a) is in receipt of a benefit by virtue of the
previous Agreement; or
(b) is qualified to receive a benefit by virtue of the
previous Agreement and, where a claim for that benefit is required, has
claimed that benefit,
no provision of this Agreement shall affect that
person's qualification to receive that benefit.
ARTICLE 32
Entry into force
1. This Agreement shall enter into force on the first day of the second month
following that in which the Parties notify each other through the diplomatic
channel that all constitutional or legislative matters as are necessary to
give effect to this Agreement have been finalised.
2. Subject to the
provisions of Article 31, the previous Agreement shall terminate on entry into
force of this Agreement.
ARTICLE 33
Termination
1. Subject to paragraph 2,
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 its intention to terminate this Agreement.
2.
In the event of termination, this Agreement shall continue to have effect in
relation to all persons who:
(a) at the date on which termination takes
effect, are in receipt of benefits; or
(b) prior to that date have lodged
claims for, and would be entitled to receive, benefits,
by virtue of this
Agreement or the Agreement signed on 30 April 1991 or
(c)
immediately before the date of termination are subject only to the legislation
of one Party by virtue of paragraph 2 or 4 of Article 12 provided that the
employee continues to satisfy the criteria of that paragraph.
IN WITNESS
WHEREOF, the undersigned, being duly authorised thereto by their respective
Governments, have signed this Agreement.
DONE in 2 copies at LISBON this
THIRD day of SEPTEMBER, TWO THOUSAND AND ONE in the English and Portuguese
languages, both texts being equally authoritative.
FOR AUSTRALIA: FOR THE
REPUBLIC OF PORTUGAL:
JANET GARDINER JOSÉ SIMÕES DE ALMEIDA
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