Social Welfare (Revised Agreement With Australia on Social Secuity) Order, 2005

Publication Date:January 01, 2005
 
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S.I. No.799of2005

Social Welfare

Social Welfare (revised agreement with Australia on Social Security) Order, 2005

This Order gives effect to the revised bilateral Agreement on Social Security made between Ireland and Australia which comes into effect from 1 January 2006. The Order provides that the Social Welfare Acts and relevant Regulations will be modified to take account of the provisions of the Agreement.

The primary purpose of the revised Agreement is to modify the terms of the earlier Agreement to take account of legislative changes that have occurred in both States.

The Agreement provides that periods of insurance in Ireland and residence in Australia may be taken into account, where necessary, by either State in order to qualify for certain benefits and pensions.

In the case of Ireland the Agreement covers old age (contributory) pension, retirement pension, widows and widowers (contributory) pension, orphans (contributory) allowance, and bereavement grant.

The Agreement also contains provisions which allow workers in one State who are sent temporarily by an employer to work in the territory of the other State, to remain attached to the social security system of the first State for a period of 4 years.

SOCIAL WELFARE (REVISED AGREEMENT WITH AUSTRALIA ON SOCIAL SECUITY) ORDER, 2005

09/06/2005

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 23 of the Agreement that the Agreement will be subject to ratification;

AND WHEREAS it is also provided in the said Article 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 Canberra on the 29th day of November, 2005.

NOW THEREFORE the Minister for Social and Family Affairs, in exercise of the powers conferred on him by Sections 4 and 287 of the Social Welfare Consolidation Act 2005 (No. 26 of 2005), hereby makes the following Order:-

1. This Order may be cited as the Social Welfare (Revised Agreement with Australia on Social Security) Order, 2005.

2. This Order shall come into force on the 1st day of January, 2006.

3. On and from the 1st day of January, 2006 the Social Welfare Consolidation Act 2005 and the regulations made under that Act insofar as they relate to old age (contributory) pension, retirement pension, invalidity pension, widow's and widower's (contributory) pension, orphan's (contributory) allowance, bereavement grant, and the liability of a person 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.

4. The Social Welfare (Agreement with Australia on social security) Order, 1992 (S.I. No. 84 of 1992) is hereby revoked.

SCHEDULE

AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF IRELAND

The Government of Australia and the Government of Ireland (hereinafter “the Parties”),

Wishing to strengthen the existing friendly relations between the two countries,

Desiring to review the Agreement between Australia and Ireland on Social Security signed on 8 April 1991, and

Acknowledging the need to coordinate the operation of their respective social security systems 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) “Competent Authority” means, in relation to Australia:

the Secretary of the Department responsible for the application of the legislation in subparagraph I (a)(i) of Article 2 of this Agreement except in relation to the application of Part II 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 Ireland:

the Minister for Social and Family Affairs;

(c) “Competent Institution” means, in relation to Australia:

the institution or agency which has the task of implementing the applicable Australian legislation;

and in relation to Ireland:

the Department of Social and Family Affairs;

(d) “legislation” means, in relation to Australia:

the laws specified in subparagraph 1(a)(i) of Article 2 except in relation to the application of Part II 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 Ireland:

the laws specified in subparagraph 1(b) of Article 2;

(e) “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 11 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 13 to be an Irish period of insurance;

(g) “previous agreement’ means, the Agreement between Australia and Ireland on social security signed on 8 April 1991;

(h) “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;

(i) “widowed person” means, in relation to Australia, a person who stops being a partnered person because of the death of the person's partner, but does not include a person who has a new partner.

2. In the application by a Party of this Agreement, any term not defined 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, consolidate or replace them:

(a) in relation to Australia:

(i) the Acts referred to as “the social security law” in the Social Security Act 1991, and any regulations made under any such Act, in so far as those Acts or regulations provide for, apply to or affect the following pensions:

A) age pension;

B) disability support pension for the severely disabled;

C) pensions payable to widowed persons; 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, Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Regulations, only in relation to the application of Part II of this Agreement;

(b) in relation to Ireland: the Acts referred to as the “Social Welfare Acts” and any regulations made thereunder to the extent that they provide for and apply to:

(i) old age (contributory) pension;

(ii) retirement pension;

(iii) widow's and widower's (contributory) pension;

(iv) invalidity pension;

(v) orphan's (contributory) allowance;

(vi) bereavement grant; and

(vii) the liability for the payment of employment and self-employment contributions.

2. Notwithstanding the provisions of paragraph 1:

in relation to Australia, the legislation of Australia shall not include treaties or other international agreements concluded between it and a third State

and in relation to Ireland, the legislation of Ireland shall not include the Regulations on Social Security of the Institutions of the European Communities or any treaties or other international agreements on social security that may be concluded between Ireland and a third State or legislation promulgated for their specific implementation.

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.

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 regarding eligibility for and payments of benefits which arise whether directly under the legislation of that Party or by virtue of this Agreement.

PART II- PROVISIONS FOR AVOIDING DOUBLE COVERAGE

ARTICLE 5

Purpose of Part

The purpose of this Part is to ensure that employers and employees who are subject to the legislation of Ireland or Australia do not have a double liability under the legislation of Ireland and Australia, in respect of the same work of an employee.

ARTICLE 6

Application of Part

This Part only applies if an employee and/or the employer of the employee would, apart...

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