SCHEDULE 1
AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA
The Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of Australia,
Wishing to strengthen the existing
friendly relations between the two countries;
Having established reciprocity in
the field of social security by means of an Agreement signed by the Parties at
Canberra on 29 January 1958, which was amended by a further Agreement
signed at Canberra on 16 August 1962 and by other Agreements set out
in Exchanges of Notes at Canberra on 6 March 1975 and at London on 29 and
31 December 1986;
Wishing to consolidate the above
Agreements and their extensions and modifications into a single document; and
Wishing to extend and modify the
scope of that reciprocity and to take account of changes in their legislation;
Have agreed as follows:
PART i
GENERAL PROVISIONS
ARTICLE 1 DEFINITIONS
(1) For
the purpose of this Agreement, unless the context otherwise requires:
“benefit”
means pension, allowance or benefit payable under the legislation of one (or
the other) Party and includes any increase payable for a dependant;
“competent authority”
means, in relation to the territory of the United Kingdom, the Secretary of
State for Social Security for Great Britain, the Department of Health and
Social Services for Northern Ireland, the Department of Health and Social
Security of the Isle of Man, the Social Security Committee of the States of the
Island of Jersey or the States of Guernsey Insurance Authority, as the case may
require, and, in relation to Australia the Secretary to the Department of
Social Security;
“competent
institution” means the institution from which the person concerned is
entitled to receive benefit or would be entitled to receive benefit if he were
resident in the territory of the Party where that institution is situated;
“contribution”,
in relation to the legislation of the United Kingdom, does not include a
reduced rate contribution payable by a married woman or a widow, or a graduated
contribution within the meaning of that legislation;
“employed person”
means a person who, in the applicable legislation, comes within the definition
of an employed earner or of an employed person or is treated as such and the
words “person is employed” shall be construed accordingly;
“employment”
means employment as an employed person and the words “employ”,
“employed” or “employer” shall be construed
accordingly;
“equivalent period”
means, in relation to the United Kingdom, a period for which contributions
appropriate to the benefit in question have been credited under the legislation
of that Party;
“family allowance”,
in relation to the United Kingdom, includes child benefit payable under the
legislation of the United Kingdom, and, in relation to Australia means family
allowance payable under the legislation of Australia;
“former Agreement”
means the Agreement on Social Security signed at Canberra on 29
January 1958, on behalf of the Parties, as amended by the Agreement on
Social Security signed at Canberra on 16 August 1962 and by the
Agreements set out in the Exchanges of Notes at Canberra on 6 March 1975
and at London on 29 and 31 December 1986;
“full standard rate”
means, in relation to any benefit payable under the legislation of the United
Kingdom, the rate at which the beneficiary would be qualified to receive that
benefit if the relevant contribution conditions were fully satisfied;
“gainfully occupied”
means employed or self-employed;
“Guernsey”
means the Islands of Guernsey, Alderney, Herm and Jethou;
“income
support” means income support payable under the legislation of Great
Britain and Northern Ireland and supplementary benefit payable under the
legislation of the Isle of Man;
“legislation”
means the legislation specified in Article 2 which, in relation to the
United Kingdom, is in force in any part of the territory of the United Kingdom
and, in relation to Australia, is in force in Australia;
“means test”
means any provision of the legislation of Australia which affects the payment
or rate of a benefit on account of income or property;
“qualified to
receive” means, in relation to the United Kingdom, entitled to receive
subject to any disqualification or any provision about claiming, hospital
treatment or overlapping benefits which may be appropriate;
“retirement pension”
means retirement pension or old age pension payable under the legislation of
the United Kingdom and includes a contributory old age pension under that legislation
and any graduated retirement benefit constituted by an increase in the weekly
rate of retirement pension under that legislation, but excludes additional
(earnings-related) pension payable under that legislation;
“self-employed person”
means a person who, in the applicable legislation, comes within the definition
of a self-employed earner or of a self-employed person or is treated as such,
and the words “person is self-employed” shall be construed
accordingly;
“spouse
carer’s pension” means a carer’s pension payable to a husband
under the legislation of Australia;
“territory”
means in relation to the United Kingdom, Great Britain, Northern Ireland and
also the Isle of Man, the Island of Jersey and Guernsey;
“widow” means,
in relation to Australia, a de jure widow but
does not include a woman who is the de facto
spouse of a man;
“widow’s
benefit” means, in relation to the United Kingdom, widow’s
allowance, widow’s payment, widowed mother’s allowance (including
any graduated retirement benefit constituted by an increase in the weekly rate
of widowed mother’s allowance), widowed father’s allowance or
widow’s pension under the legislation of any part of the United Kingdom.
(2) In
the application by a Party of this Agreement in relation to a person, any term
not defined in this Article shall, unless the context otherwise requires, have
the meaning ascribed to it in the legislation of the Parties or, in the event
of a conflict of meaning, by whichever of the legislation of the Parties is the
more applicable to the circumstances of that person.
(3) Any
reference in this Agreement to “Article” means an Article of this
Agreement, and any reference to a “paragraph” is a reference to a paragraph
of the Article in which the reference is made, unless it is stated to the
contrary.
ARTICLE 2 SCOPE
OF LEGISLATION
(1) The
provisions of this Agreement shall apply:
(a) in
relation to the territory of the United Kingdom, to:
(i) the Social
Security Acts 1975 to 1989 and the Social Security (Northern Ireland)
Acts 1975 to 1989;
(ii) the
Social Security Acts 1975 to 1989 (Acts of Parliament) as those Acts
apply to the Isle of Man by virtue of Orders made, or having effect as if made,
under the Social Security Act 1982 (an Act of Tynwald);
(iii) the Social Security (Jersey)
Law 1974;
(iv) the Social
Insurance (Guernsey) Law 1978;
(v) the Child Benefit
Act 1975, the Child Benefit (Northern Ireland) Order 1975 and the Child
Benefit Act 1975 (an Act of Parliament) as that Act applies to the Isle of
Man by virtue of Orders made, or having effect as if made, under the Social
Security Act 1982 (an Act of Tynwald); the Family Allowances (Jersey)
Law 1972 and the Family Allowances (Guernsey) Law 1950;
and to the legislation
which was repealed or consolidated by those Acts, Laws or Orders or repealed by
legislation consolidated by them; and
(b) in
relation to Australia, to the Social Security Act 1947.
(2) Subject
to the provisions of paragraphs (3) and (4) this Agreement shall apply
also to any laws, orders and regulations which supersede, replace, amend,
supplement or consolidate the legislation specified in paragraph (1).
(3) This
Agreement shall not affect any benefits payable under the legislation of either
Party except in the manner set out in this Agreement.
(4) This
Agreement shall not apply to legislation on social security of the Institutions
of the European Communities or to any convention or agreement on social
security which either Party has concluded with a third party or to any laws,
orders or regulations which amend the legislation specified in paragraph (1)
for the purpose of giving effect to such a convention or agreement but shall
not prevent either Party from taking into account under its legislation the
provisions of any other convention or agreement which that Party has concluded
with a third party.
(5) Subject
to the provisions of paragraph (2), this Agreement shall apply, unless the
Parties agree otherwise, only to benefits described in the legislation
specified in paragraph (1) at the date of coming into force of this
Agreement and for which specific provision is made in this Agreement.
PART II
RETIREMENT PENSIONS, AGE PENSIONS AND BENEFITS FOR WIDOWS
ARTICLE 3 RETIREMENT
PENSIONS
(1) For
the purpose of determining entitlement to retirement pension under the
legislation of any part of the territory of the United Kingdom, a person who is
permanently resident in that part of the territory shall be treated as if he or
she, or, in the case of a claim made by a married woman or a widow by virtue of
her husband’s insurance, her husband, had paid contributions under the
legislation of that part of the territory for any period during which that person
or that person’s husband, as the case may be:
(a) was
resident in Australia and had attained the age of sixteen years; and
(b) being
a woman had not attained the age of sixty years, or sixty-five years in the
case of Guernsey or Jersey, or being a man had not attained the age of sixty-five
years.
(2) Where:
(a) a woman
claiming retirement pension by virtue of her own insurance had been, but is not
at the time of the claim, married, and chooses to have her former husband’s
contributions taken into account for the purpose of her claim; and
(b) her
former husband had been resident in Australia for any period between the ages
of sixteen years and sixty-five years;
her former husband shall
be treated, for the purpose of her claim, as if he had paid contributions under
the legislation of the territory of the United Kingdom for any period referred
to in sub-paragraph (b).
(3) Where
a person who is permanently resident in any part of the territory of the United
Kingdom was receiving an age pension, otherwise than by virtue of this
Agreement or the former Agreement, at the time when he or she was last in
Australia, and was over pensionable age at that time, he or she shall, if not
qualified by virtue of the preceding paragraphs of this Article to receive
retirement pension at the full standard rate under the legislation of that part
of the territory of the United Kingdom, be treated as if he or she satisfied
the contribution conditions for such a pension.
(4) Any
pension which is awarded by virtue of this Article shall continue to be payable
if the pensioner ceases to be permanently resident in one part of the territory
of the United Kingdom and becomes permanently resident in another part of the
territory of the United Kingdom, and the competent authority of the latter part
of the territory of the United Kingdom shall not determine entitlement under
this Article.
(5) Any
pension which is awarded by virtue of this Article shall cease to be payable if
the pensioner ceases to be permanently resident in the territory of the United
Kingdom.
(6) Where
a person is entitled to receive a benefit by virtue of the provisions of this Article,
the rate of benefit which he or she would otherwise be entitled to receive, but
for this paragraph, shall be reduced by the amount of benefit which is payable
by virtue of the legislation of Australia in accordance with the provisions of Article 8(7).
ARTICLE 4 AGE
PENSIONS
(1) Where
a person is qualified to receive an age pension under the legislation of
Australia otherwise than by virtue of the provisions of this Agreement, or the
former Agreement, that pension shall be payable and the provisions of this Article
shall not apply under that legislation.
(2) For
the purpose of any claim by a person to receive an age pension under the
legislation of Australia, that person shall be treated as an Australian
resident for any period prior to that person’s last arrival in Australia
for which:
(a) that person;
or
(b) if
that person is a woman who is or has been married, her husband,
paid contributions, or had
earnings or contributions credited, under the legislation of the United
Kingdom.
(3) For
the purpose of applying paragraph (2), any period during which the person
(being a woman) and her husband both paid contributions or had earnings or
contributions credited to them shall be counted only once.
(4) For
the purpose of applying paragraph (2), a period when the person or, if the
person is a woman who is or has been married, her husband paid contributions or
had earnings or contributions credited, which coincided with a period in which
that person was an Australian resident, shall be counted only once.
(5) A
person who receives from Australia a wife’s pension or a spouse
carer’s pension by virtue of the fact that the spouse of that person
receives an age pension by virtue of this Article, shall, for the purpose of
this Agreement, be deemed to receive that pension by virtue of this Agreement.
ARTICLE 5 UK
BENEFITS FOR WIDOWS
(1) For
the purpose of determining entitlement to widow’s benefit under the
legislation of any part of the territory of the United Kingdom, a widow who is
permanently resident in that part of the territory shall be treated as if her husband
had paid contributions under the legislation of that part of the territory for
any period during which he was resident in Australia between the ages of sixteen
years and sixty-five years.
(2) Where
a widow who is permanently resident in any part of the territory of the United
Kingdom was receiving a pension payable to widows under the legislation of
Australia, otherwise than by virtue of this Agreement or the former Agreement,
at the time when she was last in Australia, and is not qualified by virtue of paragraph (1)
to receive widow’s allowance, widowed mother’s allowance or
widow’s pension at the full standard rate under the legislation of that part
of the territory of the United Kingdom where she is permanently resident, she
shall be qualified under that legislation to receive at the full standard rate:
(a) widow’s
allowance if she had been receiving a pension payable to widows under the
legislation of Australia for less than one year in the case of Jersey and 26
weeks in the case of Guernsey; or
(b) widowed
mother’s allowance if she is not qualified to receive widow’s
allowance or if she has ceased to be qualified to receive widow’s
allowance, and if she has a child in her family or if she has residing with her
a person under the age of nineteen years or sixteen years in the case of Jersey
or eighteen years in the case of Guernsey, and the pension payable to widows
which she was receiving at the time when she was last in Australia was being
paid to her on the basis that that child or person was her dependent child; or
(c) widow’s
pension or retirement pension, as the case may require, if she is not qualified
to receive widow’s allowance, or widowed mother’s allowance but had
reached the age of fifty-five years or forty years where that widow is
permanently resident in Jersey or Guernsey, either before she last left
Australia or when she ceased to be qualified to receive widow’s allowance
or widowed mother’s allowance.
(3) Any
pension which is awarded by virtue of this Article shall continue to be payable
if the pensioner ceases to be permanently resident in one part of the territory
of the United Kingdom and becomes permanently resident in another part of the
territory of the United Kingdom, and the competent authority of the latter part
of the territory of the United Kingdom shall not determine entitlement under
this Article.
(4) Any
widow’s benefit which is awarded by virtue of this Article shall cease to
be payable if the widow ceases to be permanently resident in the territory of
the United Kingdom.
(5) Where
a person is entitled to receive a benefit by virtue of the provisions of this Article,
the rate of benefit which she would otherwise be entitled to receive, but for
this paragraph, shall be reduced by the amount of benefit which is payable by
virtue of the legislation of Australia in accordance with the provisions of Article 8(7).
(6) The
provisions contained in this Article shall apply, in an equal and opposite way
to widowed father’s allowance under the legislation of Jersey.
(7) In
the case of widows’ benefits payable under the legislation of Jersey,
contribution credits shall only be awarded to widows permanently resident in
Jersey.
(8) In
the case of widow’s benefit payable under the legislation of
Guernsey –
(a) Class
3 contributions shall be credited only to a widow who is permanently resident
in Guernsey;
(b) where
Class 3 contributions have not been credited to a widow under the provisions of
sub-paragraph (a) above and the rate of old age pension which would be
payable is less than the rate of widow’s benefit payable immediately
before pension age is attained the rate of old age pension shall be adjusted so
that it is equal to the rate of widow’s benefit which was payable, or
which would be payable, if widow’s benefit were payable beyond pension
age.
ARTICLE 6 UK
WIDOWED MOTHER’S ALLOWANCE – CHILD IN AUSTRALIA
Where a woman would be
qualified under the legislation of the United Kingdom, otherwise than by virtue
of this Agreement or the former Agreement, to receive widowed mother’s
allowance, including an allowance for a child, if her child were in the
territory of the United Kingdom, she shall be qualified to receive that
allowance for any period during which the child is in Australia.
ARTICLE 7 AUSTRALIAN
BENEFITS FOR WIDOWS
(1) Where
a person is qualified to receive a pension payable to widows under the
legislation of Australia otherwise than by virtue of the provisions of this Agreement
or the former Agreement, that pension shall be payable and the provisions of
this Article shall not apply under that legislation.
(2) For
the purpose of any claim to receive a pension payable to widows under the
legislation of Australia, a widow shall be treated as if she had been an
Australian resident during any period for which her husband (or her last husband
if more than one) had paid contributions or had had earnings or contributions
credited to him under the legislation of the United Kingdom.
(3) For
the purpose of applying paragraph (2), any period when the widow was an
Australian resident which coincided with a period when her husband (or her last
husband if more than one) had paid contributions or had had earnings or
contributions credited to him shall be counted only once.
ARTICLE 8 CONVERSION
OF AUSTRALIAN RESIDENCE
(1) For
the purpose of calculating entitlement under the legislation of Great Britain,
Northern Ireland or the Isle of Man, to any benefit in accordance with Articles 3
and 5, periods of residence in Australia before 6 April 1975 shall be
treated as if they had been contribution or equivalent periods completed under
that legislation.
(2) For
the purpose of calculating entitlement under the legislation of Great Britain,
Northern Ireland or the Isle of Man, to any benefit in accordance with Articles 3
and 5, periods of residence in Australia on or after 6 April 1975 shall be
treated as if a Class 3 contribution had been paid under that legislation for
each week of residence.
(3) Notwithstanding
the provisions of paragraph (2), where residence in Australia during any
tax year beginning on or after 6 April 1975 is for a period of less than
the complete tax year then for each week of that period during which a person
satisfies the competent authority that he or she was employed in Australia:
(a) for
each week up to 5 April 1987, a person shall be treated as having paid a
contribution as an employed earner on earnings equivalent to two-thirds of that
year’s upper earnings limit under the legislation of Great Britain,
Northern Ireland or the Isle of Man;
(b) for
each week commencing on or after 6 April 1987, a person shall be treated
as having earnings on which primary Class 1 contributions have been paid under
the legislation of Great Britain, Northern Ireland or the Isle of Man; these
earnings shall be treated as equivalent to two-thirds of that year’s
upper earnings limit.
(4) For
the purpose of calculating entitlement under the legislation of Guernsey to any
benefit in accordance with Articles 3 and 5, residence in Australia
between the ages of sixteen years and sixty-five years shall be treated as if a
Class 3 contribution had been paid under the legislation of Guernsey for each
week of residence.
(5) For
the purpose of calculating entitlement under the legislation of Jersey to any
benefit in accordance with Articles 3 and 5, a person shall be treated:
(a) for
each week completed during residence in Australia between the ages of sixteen
years and sixty-five years, being a week in the relevant quarter, as having
paid contributions which derive a quarterly contribution factor of 0.077 for
that quarter;
(b) for
each week completed during residence in Australia between the ages of sixteen
years and sixty-five years, being a week in a relevant year, as having paid
contributions which derive an annual contribution factor of 0.0193 for that
year.
(6) Where
it is not possible to determine accurately the periods of time in which certain
insurance periods were completed under the legislation of the United Kingdom,
such periods shall be treated as if they did not overlap with periods of
residence in Australia, and they shall be taken into account to the best
advantage of the beneficiary.
(7) For
the purpose of calculating the rate of any benefit payable to a person under
the legislation of the United Kingdom in accordance with the provisions of Articles 3,5
or 13, the amount of any Australian benefit to be taken into account shall be
initially the rate which that person is receiving at the date of entitlement to
the United Kingdom benefit, and thereafter the rate which that person is
receiving:
(a) on
the date on which the latest uprating order, made by the Secretary of State for
Social Security under section 63 of the Social Security Act 1986, came
into effect; or
(b) in
respect of Guernsey, on the date on which the latest Ordinance made under
Section 19 of the Social Insurance (Guernsey) Law, 1978 came into
effect; or
(c) in
respect of Jersey, annually on 1 October in accordance with Article 13 of
the Social Security
(Jersey) Law 1974.
(8) Notwithstanding
the provisions of paragraph (7), where a person referred to in that paragraph
has the rate of that Australian benefit reduced under the legislation of
Australia upon being absent from Australia for 12 months, the benefit payable
to that person under the legislation of the United Kingdom shall be adjusted
upon that reduction occurring.
ARTICLE 9 CONVERSION
OF U.K. EARNINGS FACTORS OR CONTRIBUTION FACTORS
In order to convert to a period of contributions or credits for the
purpose of Articles 4 and 7:
(a) the
competent authority of Great Britain, Northern Ireland or the Isle of Man shall
divide any earnings factor achieved in any tax year commencing after 5
April 1975 under its legislation, by that years lower earnings limit;
(b) the
competent authority of Jersey shall multiply any contribution factor achieved
by a person under its legislation:
(i) by thirteen in
the case of a quarterly contribution factor; and
(ii) by
fifty-two in the case of an annual contribution factor.
The result shall be expressed as a whole number, any remaining
fraction being ignored. The figure so calculated, subject to a maximum of the
number of weeks during which the person was subject to that legislation in a
quarter or in a year, shall be treated as representing the number of weeks of
contributions or credits completed under that legislation.
PART III
UK FAMILY ALLOWANCE AND
GUARDIAN’S ALLOWANCE
ARTICLE 10 FAMILY ALLOWANCE
(1) Where a person who has
been resident in Australia becomes permanently resident in the territory of the
United Kingdom, the period during which that person was resident in Australia
shall be treated, for the purpose of a claim by the person for family allowance
under the legislation of the United Kingdom, as a period during which that person
was resident in that territory.
(2) For the purpose of any
claim to family allowance under the legislation of Guernsey, a person whose
place of birth is in Australia shall be treated as if his or her place of birth
was in Guernsey.
(3) In the case of Jersey,
family allowance shall only be paid in respect of a child who is ordinarily
resident in Jersey.
ARTICLE 11 GUARDIAN’S
ALLOWANCE
(1) Where a person who is
permanently resident in the territory of the United Kingdom claims
guardian’s allowance under the legislation of any part of that territory
for a child who is permanently resident there, each complete week during which
either parent of that child was resident in Australia after reaching sixteen
years of age shall be treated as if that week had been a complete week of
residence in that part of the territory of the United Kingdom or as if that
parent had been an insured person under the legislation of Guernsey.
(2) If either parent of a
child referred to in paragraph (1) was born in Australia, that parent
shall be treated as if he or she had been born in the United Kingdom.
PART IV
SICKNESS BENEFITS AND
INVALIDITY BENEFITS
ARTICLE 12 AUSTRALIAN
SICKNESS BENEFIT
Where a person who is temporarily absent from any part of the
territory of the United Kingdom and who is legally in Australia claims sickness
benefit under the legislation of Australia, that person shall, for the purpose
of that claim, be deemed to be an Australian resident
ARTICLE 13 UK SICKNESS
BENEFIT AND INVALIDITY BENEFIT
(1) Where a person who is
permanently resident in the territory of the United Kingdom and is ordinarily
gainfully occupied, or would be, but for his or her incapacity for work, claims
sickness or invalidity benefit under the legislation of the relevant part of
that territory, then, for the purpose of calculating entitlement to those
benefits, periods during which that person was in Australia shall be treated in
accordance with the provisions of this Article.
(2) For the purpose of
calculating entitlement under the legislation of Great Britain, Northern
Ireland or the Isle of Man to sickness or invalidity benefit:
(a) periods
of gainful occupation completed in Australia before 6 April 1975 shall be
treated as if they had been contribution or equivalent periods completed under
the legislation of Great Britain, Northern Ireland or the Isle of Man; and
(b) periods
completed as a self-employed person in Australia after 5 April 1975 shall
be treated as if they had been contribution periods completed as a
self-employed person or equivalent periods completed under the legislation of
Great Britain, Northern Ireland or the Isle of Man.
(3) For the purpose of
calculating an earnings factor for assessing entitlement to sickness or
invalidity benefit under the legislation of Great Britain, Northern Ireland or
the Isle of Man, a person shall be treated for each week beginning in a
relevant tax year, during which he or she was an employed person in Australia,
as follows:
(a) for
each week commencing on or after 6 April 1975 and up to 5 April 1987,
as having a contribution paid as an employed earner on earnings equivalent to two-thirds
of that year’s upper earnings limit; and
(b) for
each week beginning in a relevant tax year commencing on or after 6
April 1987, as having earnings on which primary Class 1 contributions have
been paid. These earnings shall be treated as equivalent to two-thirds of that
year’s upper earnings limit.
(4) For the purpose of
calculating entitlement under the legislation of Guernsey to sickness or
invalidity benefit:
(a) periods
during which a person was gainfully occupied as an employed person in Australia
shall be treated as if they had been contribution or equivalent periods
completed as an employed person under the legislation of Guernsey; and
(b) periods
during which a person was gainfully occupied as a self-employed person in
Australia shall be treated as if they had been contribution or equivalent
periods completed as a self-employed person under the legislation of Guernsey.
(5) For the purpose of
calculating entitlement under the legislation of Jersey to any benefit in
accordance with this Article, a person shall be treated:
(a) for
each week completed during residence in Australia between the ages of sixteen
years and sixty-five years being a week in the relevant quarter, as having paid
contributions which derive a quarterly contribution factor of 0.077 for that
quarter;
(b) for
each week completed during residence in Australia between the ages of sixteen
years and sixty-five years being a week in a relevant year, as having paid
contributions which derive an annual contribution factor of 0.0193 for that
year.
(6) For the purpose of
calculating entitlement under the legislation of the relevant part of the
territory of the United Kingdom to sickness or invalidity benefit, a person
shall be treated as if he or she had had earnings or contributions credited to him
or her:
(a) as an
employed person for any week during which he or she was in Australia and was
unemployed and available for work or was incapable of work, if that week was part
of a period during which he or she was or would ordinarily have been employed;
and
(b) as a
self-employed person for any other week during which he or she was in Australia
and was incapable of work, if that week was part of a period during which he or
she was or would ordinarily have been self-employed.
(7) Where a person who is
permanently resident in the territory of the United Kingdom was receiving a sickness
benefit, an invalid pension, a sheltered employment allowance or a
rehabilitation allowance under the legislation of Australia when he or she was
last in Australia and is incapable of work at the time when he or she arrives
in the territory of the United Kingdom, he or she shall be treated under the
legislation of the United Kingdom as if, at that time and for so long as he or she
continues from that time to be incapable of work, he or she satisfied the
contribution conditions under which sickness or invalidity benefit is payable.
(8) For the purpose of any
claim to invalidity benefit under the legislation of the United Kingdom, any
period in respect of which a person received sickness benefit or an invalid
pension under the legislation of Australia shall be treated as if it were a
period of entitlement to sickness benefit or invalidity benefit completed under
the legislation of the United Kingdom.
(9) Nothing in this Article
shall diminish any right which a person has, apart from this Agreement, to receive
sickness or invalidity benefit under the legislation of the United Kingdom.
(10) Where a person is entitled to
receive a benefit by virtue of the provisions of this Article, the rate of
benefit which he or she would otherwise be entitled to receive, but for this paragraph,
shall be reduced by the amount of benefit which is payable by virtue of the
legislation of Australia in accordance with the provisions of Article 8(7).
PART V
UK UNEMPLOYMENT BENEFIT
ARTICLE 14
(1) Where a person who is
permanently resident in the territory of the United Kingdom except for Jersey
claims unemployment benefit under the legislation of any part of that
territory, then, for the purpose of calculating entitlement to that benefit,
periods during which that person was in Australia shall be treated in
accordance with the provisions of this Article.
(2) Periods of gainful
occupation as an employed person in Australia before 6 April 1975 shall be
treated as if they had been contribution or equivalent periods completed under
the legislation of Great Britain, Northern Ireland or the Isle of Man.
(3) For the purpose of
calculating an earnings factor for assessing entitlement to unemployment
benefit under the legislation of Great Britain, Northern Ireland or the Isle of
Man, a person shall be treated for each week beginning in a relevant tax year,
during which he or she was an employed person in Australia, as follows:
(a) for
each week commencing on or after 6 April 1975 and up to 5 April 1987,
as having a contribution paid as an employed earner on earnings equivalent to two-thirds
of that year’s upper earnings limit; and
(b) for
each week beginning in a relevant tax year commencing on or after 6
April 1987, as having earnings on which primary Class 1 contributions have
been paid. These earnings shall be treated as equivalent to two-thirds of that
year’s upper earnings limit.
(4) For the purpose of
calculating entitlement to unemployment benefit under the legislation of
Guernsey, periods during which a person was gainfully occupied as an employed person
in Australia shall be treated as if they had been contribution or equivalent
periods completed as an employed person under the legislation of Guernsey.
(5) A person shall be
treated as if he or she had earnings or contributions credited to him or her as
an employed person for any week during which he or she was in Australia and was
unemployed and available for work or was incapable of work, if that week was part
of a period during which he or she was or would ordinarily have been gainfully
occupied under a contract of service.
(6) Nothing in this Article
shall diminish any right which a person has, apart from this Agreement, to
receive unemployment benefit under the legislation of the United Kingdom.
(7) The provisions of this Article
shall not apply to a person who claims unemployment benefit under the legislation
of Guernsey and who has not paid 26 contributions as an employed person under
that legislation.
PART VI
MISCELLANEOUS PROVISIONS
ARTICLE 15 TEMPORARY
ABSENCES
(1) A benefit which is
payable to a person by Australia under Part II of this Agreement shall not
cease to be payable solely where the person is absent from Australia and the
competent authority of Australia is satisfied that the absence is temporary.
After the person has been temporarily absent from Australia for a period of 12
months at any one time that person shall then be deemed to have departed
permanently from Australia.
(2) Where a person, who is
qualified to receive any benefit under the legislation of the United Kingdom,
would be qualified to receive also an increase of that benefit for a dependant
if the dependant were in that territory, he or she shall be qualified to
receive that increase while the dependant is temporarily in Australia.
ARTICLE 16 CALCULATION OF
AUSTRALIAN BENEFITS
(1) Subject to paragraph (5),
the provisions of this Article shall apply, in relation to the territory of the
United Kingdom, only to retirement pensions and widows’ benefits, and, in
relation to Australia only to age pensions, wives’ pensions, spouse
carer’s pensions and pensions payable to widows, being benefits payable
under the legislation of Australia solely by virtue of this Agreement; and, for
the purpose of applying those provisions, the effect of any provision of the
legislation of any part of the territory of the United Kingdom which concerns
overlapping benefits shall be disregarded.
(2) Subject to the
provisions of paragraph (3), where a person who is qualified to receive an
Australian benefit also receives a United Kingdom benefit, the rate of that
Australian benefit shall be set by:
(a) calculating
that person’s income according to the legislation of Australia but
disregarding in that calculation the United Kingdom benefit received by that person;
(b) deducting
the amount of the United Kingdom benefit received by that person from the maximum
rate of that Australian benefit; and
(c) applying
to the remaining benefit obtained under sub-paragraph (b) the relevant
rate calculation set out in the legislation of Australia using as the person’s
income the amount calculated under sub-paragraph (a).
(3) Where a married person
is, or both that person and his or her spouse are, in receipt of a United
Kingdom benefit or benefits, each of them shall be deemed, for the purpose of paragraph (2)
and for the legislation of Australia, to be in receipt of one half of either
the amount of that benefit or the total of both of those benefits, as the case
may be.
(4) If a person would
receive an Australian benefit except for the operation of paragraph (2) or
except for that person’s failure to claim the benefit, then for the
purpose of a claim by that person’s spouse for a payment under the
legislation of Australia that person shall be deemed to receive that benefit.
(5) The reference in paragraph (4)
to a payment under the legislation of Australia to the spouse of a person is a
reference to a payment of:
(a) an
age pension;
(b) an
invalid pension;
(c) an
unemployment benefit;
(d) a
sickness benefit;
(e) a
sheltered employment allowance; or
(f) a
rehabilitation allowance,
under that legislation, whether payable by virtue of this Agreement
or otherwise.
(6) For the purpose of this
Article “benefit” includes any additional earnings-related pension,
incremental addition, invalidity allowance and age addition payable with the
benefit
ARTICLE 17 DUAL ENTITLEMENT
IN AUSTRALIA
Where:
(a) a
claim is made for a benefit payable by Australia, by virtue of this Agreement;
and
(b) there
are reasonable grounds for believing that the claimant may also be entitled,
whether by virtue of this Agreement or otherwise, to a benefit that is payable
under the legislation of the United Kingdom and that, if paid, would affect the
amount of the first-mentioned benefit,
that first-mentioned benefit shall not be paid until a claim is duly
lodged for payment of the second-mentioned benefit and the first-mentioned
benefit shall not continue to be paid if the claim for the second-mentioned
benefit is not actively pursued.
ARTICLE 18 DUAL ENTITLEMENT
IN UK
Where a person is qualified to receive a benefit under the
legislation of the United Kingdom pursuant to Articles 3, 5 or 13 and is
also qualified to receive an Australian benefit, the rate of that Australian
benefit shall be determined under the legislation of Australia but in that
determination the amount of the benefit payable under the legislation of the
United Kingdom shall be disregarded in the computation of that person’s
income.
ARTICLE 19 RECOVERY OF
BENEFIT
(1) Where a benefit is
payable by a Party to a person in respect of a past period (in this Article
referred to as “the first benefit”), and
(a) for
all or part of that same period, the other Party has paid to that person a
benefit under its legislation (in this Article referred to as “the second
benefit”); and
(b) the
amount of the second benefit would have been reduced had the first benefit been
paid during that period,
the competent authority of the former Party, at the request of the
competent authority of the latter Party, shall:
(c) deduct
from the first benefit an amount equal to the amount of the second benefit that
would not have been paid had the first benefit been paid on a periodical basis
throughout that past period, and
(d) transmit
any sum deducted in accordance with sub-paragraph (c) above to the competent
authority of the latter Party.
Any balance shall be paid by the former Party direct to the person.
(2) Where the United
Kingdom has paid a benefit to a person in respect of a past period and:
(a) for
all or part of that same period, Australia has paid to that person a benefit
under its legislation; and
(b) the
amount of the benefit paid by Australia would have been reduced had the United
Kingdom paid its benefit during that period,
the competent authority of Australia may determine that:
(c) the
amount of its benefit which would not have been paid had the United Kingdom
paid its benefit on a periodical basis throughout that period is a debt due by
that person to Australia; and
(d) the
amount, or any part, of that debt may be recovered from future benefits which
Australia may pay under its legislation to that person.
(3) A reference in paragraphs (1)
or (2) to a payment under the legislation of a Party means a benefit payable
whether by virtue of this Agreement or otherwise.
(4) Where a person has
received income support under the legislation of Great Britain, Northern
Ireland or the Isle of Man for a period for which that person subsequently
becomes entitled to any benefit under the legislation of Australia, the
competent institution of Australia, at the request of and on behalf of the
competent institution of Great Britain, Northern Ireland or the Isle of Man,
shall withhold from the benefit due for that period the amount by which the
income support paid exceeded what would have been paid had the benefit under
the legislation of Australia been paid before the amount of income support was
determined, and shall transmit the amount withheld to the competent institution
of Great Britain, Northern Ireland or the Isle of Man.
ARTICLE 20 MEANING OF PERMANENTLY
RESIDENT
For the purpose of applying the provisions of this Agreement, a person
shall be treated as permanently resident in the territory of the United Kingdom
if he or she is ordinarily resident in that territory and the competent
authority of that territory is satisfied that it is that person’s
intention to remain so resident permanently.
ARTICLE 21 GAINFUL
OCCUPATION IN AUSTRALIA
For the purpose of Articles 13 and 14, a person shall be
treated as having been gainfully occupied in Australia during:
(a) any
period of service, whether in Australia or elsewhere, in the Defence Force of
Australia; and
(b) any
period of absence from Australia during which that person was an employee and
was treated as being a resident of Australia within the meaning of any Act
relating to the imposition, assessment and collection of a tax upon incomes in
force in Australia.
PART VII
ADMINISTRATION
ARTICLE 22 ADMINISTRATIVE
ARRANGEMENTS
The competent authorities of the United Kingdom of Great Britain and
Northern Ireland and the Secretary to the Department of Social Security for the
Government of Australia shall make whatever administrative arrangements are
necessary from time to time in order to implement this Agreement.
ARTICLE 23 DISCLOSURE OF
INFORMATION
(1) The competent
authorities may supply to each other such information as is necessary for the
operation of this Agreement or of the legislation of each territory to which
this Agreement applies as if the matter involved the application of their own
legislation.
(2) Any information
received by a competent authority pursuant to paragraph (1) shall be
protected in the same manner as information obtained under the legislation of
that territory and shall be disclosed only to persons or authorities (including
courts and administrative bodies) concerned with matters, including the
determination of appeals, arising under the provisions of this Agreement and of
the legislation to which this Agreement applies and shall be used only for
those purposes.
(3) In no case shall the
provisions of paragraphs (1) and (2) be construed so as to impose on the
competent authority of either Party the obligation:
(a) to
carry out administrative measures which are at variance with the laws or the
administrative practice of either Party; or
(b) to
supply particulars which are not obtainable under the laws or in the normal
course of the administration of either Party.
(4) The competent
authorities shall notify each other of legislation that supersedes, amends,
supplements or replaces the legislation within the scope of this Agreement in
relation to their respective Parties, promptly after the first-mentioned
legislation is enacted.
(5) The appropriate
competent authority shall also provide copies of the relevant legislation and
of related explanatory material and any further amplification or clarification
that the other competent authority may request.
PART VIII
TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 24 TRANSITIONAL
PROVISIONS
(1) No provision of this
Agreement shall confer any right to receive any payment of a benefit for a
period before the date of the entry into force of this Agreement.
(2) Any contribution which
a person has paid or earnings or contributions credited under the legislation
of the United Kingdom before the date of the entry into force of this
Agreement, and any period during which a person was resident in Australia
before that date, shall be taken into account for the purpose of determining
the right to receive a benefit in accordance with the provisions of this
Agreement under the legislation of Australia and under the legislation of the
United Kingdom respectively.
(3) Subject to paragraph (4),
where, on the date on which this Agreement enters into force, a person:
(a) is in
receipt of a benefit under the legislation of either Party by virtue of the
former Agreement; or
(b) is
qualified to receive a benefit referred to in sub-paragraph (a) and, where
a claim for that benefit is required, has claimed that benefit,
no provision of this Agreement shall affect the entitlement to
receive that benefit.
(4) The rate of a benefit
which is payable by virtue of paragraph (3) shall, subject to this
Agreement, be assessed in accordance with the provisions of the legislation of
the relevant Party.
ARTICLE 25 ENTRY INTO FORCE
(1) The Agreement shall
enter into force on a date to be specified in Notes exchanged by the Parties
through the Diplomatic Channel notifying each other that all matters as are
necessary to give effect to this Agreement have been finalised.
(2) Subject to the
provisions of Article 24, the former Agreement shall terminate on the date
of entry into force of this Agreement.
ARTICLE 26 TERMINATION
PROVISIONS
(1) Subject to paragraph (2),
this Agreement shall remain in force until the expiration of twelve months from
the date on which either Party receives from the other written notice through
the diplomatic channel of the intention of the other Party to terminate this
Agreement.
(2) In the event that this
Agreement is terminated in accordance with paragraph (1), the Agreement
shall continue to have effect in relation to all persons who by virtue of this
Agreement:
(a) at
the date of termination, are in receipt of benefits; or
(b) prior
to the expiry of the period referred to in that paragraph, have lodged claims
for, and would be entitled to receive, benefits.
In witness whereof the undersigned, duly authorised by their
respective Governments, have signed this Agreement.
Done in duplicate at London, this 1st day of October 1990.
|
For the Government of the
United Kingdom of Great Britain and Northern Ireland:
|
For the Government of
Australia:
|
|
Caithness
|
Graham Richardson
|
SCHEDULE 2
FIRST EXCHANGE OF NOTES
BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND AND THE GOVERNMENT OF AUSTRALIA
[No.1]
No. 29
The British High Commission present their compliments to the
Department of Foreign Affairs and Trade and have the honour to refer to the
Agreement on Social Security between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of Australia signed at
London on 1 October 1990 and, in accordance with Article 25(1) of
that Agreement, to notify the Department of Foreign Affairs and Trade that the
Government of the United Kingdom has completed the constitutional and
administrative requirements necessary for its implementation.
The High Commission have the honour to propose that, if the
Government of Australia has similarly completed its constitutional and
administrative requirements, the Agreement shall enter into force on 29
June 1992.
The High Commission avail themselves of this opportunity to renew to
the Department of Foreign Affairs and Trade the assurance of their highest
consideration.
22 April 1992
British High Commission
CANBERRA
[No.2]
The Department of Foreign Affairs and Trade presents its compliments
to the British High Commission and has the honour to refer to the High
Commission’s Note No. 29 of 22 April 1992, which reads as
follows –
(the Note here sets out the text of No. 1)
The Department has the honour to advise that the constitutional and
administrative arrangements necessary for the implementation of the said Agreement
by the Government of Australia have been completed. The Department further has
the honour to confirm that the foregoing is acceptable to the Government of
Australia and that the Agreement shall enter into force on 29 June 1992.
CANBERRA
23 April 1992
SCHEDULE 3
SECOND EXCHANGE OF NOTES
BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND AND THE GOVERNMENT OF AUSTRALIA
[No. 1]
The British High Commission present their compliments to the
Department of Foreign Affairs and Trade and have the honour to refer to the
Agreement on Social Security between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of Australia signed at
London on 1 October 1990 (which in this letter is referred to as “the
Agreement”) and to recent discussions between the Departments of Social
Security of the United Kingdom and Australia concerning the need to amend the
Agreement, so as to make provision for increases of United Kingdom benefits in
respect of dependants to be paid in certain circumstances, for any period
during which such dependant is in Australia.
The British High Commission now have the honour to propose the
following amendments to the Agreement:
(a) Articles 6
and 15(2) of the Agreement shall be deleted;
(b) The
following shall be inserted after Article 15 of the Agreement.
“ARTICLE
15A
UK
INCREASES FOR DEPENDANTS
Where a person who is
qualified to receive any benefit under the legislation of the United Kingdom,
other than a retirement pension or a widowed mother’s allowance payable
by virtue of this or the former Agreement, would be qualified to receive also
an increase of that benefit for a dependant if the dependant were in that
territory, he or she shall be qualified to receive that increase while the
dependant is in Australia.”
If the foregoing proposals are acceptable to the Government of
Australia, the High Commission have the honour to propose that this Note and
the Department of Foreign Affairs and Trade’s reply to that effect, shall
constitute an Agreement between the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of Australia which shall enter
into force on 29 June 1992.
The British High Commission avail themselves of this opportunity to
renew to the Department of Foreign Affairs and Trade the assurance of their
highest consideration.
22 April 1992
British High Commission
CANBERRA
[No. 2]
The Department of Foreign Affairs and Trade presents its compliments
to the British High Commission and has the honour to refer to the High
Commission’s Note No. 30 of 22 April 1992, which reads as follows:
(the Note here sets out the text for No. 1)
The Department has the honour to confirm that the foregoing is
acceptable to the Government of Australia and that the High Commission’s
Note and this reply shall together constitute an Agreement between the
Government of Australia and the Government of the United Kingdom of Great
Britain and Northern Ireland which shall enter into force on 29 June 1992.
CANBERRA
22 April 1992