Social Welfare (Agreement With Australia On Social Security) Order, 1992

• Jurisdiction: Ireland
• Citation: IR SI 84/1992
• Year: 1992

S.I. No. 84 of 1992.

SOCIAL WELFARE (AGREEMENT WITH AUSTRALIA ON SOCIAL SECURITY) ORDER, 1992.

WHEREAS the arrangements in respect of matters relating to social security set out in the Agreement in the Schedule to this Order (hereinafter called "the Agreement") were made by the Government of Ireland with the Government of Australia;

AND WHEREAS it is provided in Article 19.1. of the Agreement that the Agreement will be subject to ratification;

AND WHEREAS it is provided in Article 19.2. of the Agreement that the Agreement will come into force on the first day of the second month following the month in which the instruments of ratification are exchanged;

AND WHEREAS the aforesaid instruments of ratification were exchanged in Dublin on the 27th day of February, 1992.

NOW THEREFORE the Minister for Social Welfare, in exercise of the powers conferred on him by Sections 3 and 307 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981 ), hereby makes the following Order:— 1. This Order may be cited as the Social Welfare (Agreement with Australia on Social Security) Order, 1992. 2. The Agreement shall come into force on the 1st day of April, 1992. 3. On and from the 1st day of April, 1992 the Social Welfare Acts 1981 to 1991 and the regulations made under those Acts insofar as they relate to old age (contributory) pension, retirement pension, invalidity pension, widows (contributory) pension, orphans (contributory) allowance, death grant and the liability of a person employed outside the State to the payment of employment and self-employment contributions shall be modified to the extent necessary to take account of and give effect to the provisions of the Agreement.

GIVEN under the Official Seal of the Minister for Social Welfare this 16th

day of March, 1992.

CHARLIE McCREEVY,

Minister for Social Welfare.

SCHEDULE

AGREEMENT BETWEEN IRELAND AND AUSTRALIA ON SOCIAL SECURITY.

Ireland and Australia, wishing to strengthen the existing friendly relations between the two countries, and resolved to co-ordinate their social security systems,

Have agreed as follows:

PART I

GENERAL PROVISIONS

ARTICLE 1

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 insurable 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...