Turn the raw legal text into a practical explanation grounded in Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No. 3).
Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No. 3)1
Statutory Rules 2002 No. 332
I, PETER JOHN HOLLINGWORTH, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Social Security (International Agreements) Act 1999.
Dated 28 February 2002
PETER HOLLINGWORTH
Governor-General
By His Excellency’s Command
AMANDA VANSTONE
Minister for Family and Community Services
1 Name of Regulations
These Regulations are the Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No. 3).
2 Commencement
These Regulations commence on 1 October 2002.
3 Amendment of Social Security (International Agreements) Act 1999
Schedules 1 and 2 amend the Social Security (International Agreements) Act 1999.
Schedule 1 Amendment
(regulation 3)
[1] After Schedule 12
insert
Schedule 13 — United States of America
Note: See section 5.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
ON sOCIAL sECURITY
The Government of Australia and the Government of the United States of America (hereinafter “the Parties”),
Being desirous of regulating the relationship between their two countries with respect to social security benefits and coverage, have agreed as follows:
PART I
General Provisions
Article 1
Definitions
For the purpose of this Agreement:
(a) “Agency” means,
as regards the United States, the Social Security Administration, and
as regards Australia, the institution or agency responsible for the administration of the laws;
(b) “benefit” means in relation to a Party, a benefit, pension or allowance for which provision is made in the laws of that Party, and includes any additional amount, increase or supplement for which a beneficiary is qualified but, for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee;
(c) “carer payment” means, in relation to Australia, a carer payment payable to the partner of a person in receipt of an Australian benefit;
(d) “Competent Authority” means,
Section 1 - Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No. 3) - Social Security (International Agreements) Act 1999 Amendment Regulations 2002 (No. 3) | Zoe
as regards the United States, the Commissioner of Social Security, and
as regards Australia, the Secretary of the Commonwealth Department responsible for the laws specified in subparagraph 1(b)(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 Commissioner of Taxation or an authorised representative of the Commissioner;
(e) “laws” means,
as regards the United States, the laws and regulations specified in subparagraph 1(a) of Article 2, and
as regards Australia, the laws specified in subparagraph 1(b)(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 laws specified in subparagraph 1(b)(ii) of Article 2;
(f) “national” means,
as regards the United States, a national of the United States as defined in Section 101, Immigration and Nationality Act, as amended, and
as regards Australia, a citizen of Australia;
(g) “period of Australian working life residence”, in relation to a person, means, unless otherwise provided in this Agreement, a period:
(i) defined as such in the laws of Australia; and
(ii) during which the person was employed or self-employed or the person’s employer was subject to the laws specified in subparagraph 1(b)(ii) of Article 2;
but does not include any United States period of coverage deemed pursuant to Article 9 to be a period in which that person was an Australian resident.
(h) “social security laws” means, in relation to Australia, all the Acts forming the social security law without any limitation, including the limitation imposed by Article 2.
(i) “United States period of coverage” means a period credited as a quarter of coverage under the laws of the United States, or any equivalent period that may be used to establish the right to a benefit under the laws of the United States;
(j) “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.
Any term used in this Agreement and not defined in this Article shall have the meaning assigned to it in the applicable laws.
Article 2
Scope
For the purpose of this Agreement, the applicable laws are:
(a) As regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:
‑ Title II of the Social Security Act and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,
‑ Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;
(b) As regards Australia,
(i) the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(A) age pension;
(B) disability support pension for the severely disabled;
(C) pensions payable to widowed persons; and
(D) carer payment.
(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).
Notwithstanding the provisions of paragraph 1(b), this Agreement shall apply to women who are receiving wife pension at the date this Agreement comes into force and who are the wives of:
(a) persons receiving age pension; or
(b) persons receiving disability support pension for the severely disabled.
Unless otherwise provided in this Agreement, the laws referred to in paragraph 1 shall not include treaties or other international agreements on social security that may be concluded between one of the Parties and a third State, or laws or regulations promulgated for their specific implementation.
This Agreement shall also apply to future laws which amend or supplement the laws specified in paragraph 1 of this Article.
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 laws of Australia; or
(c) is or has been subject to the laws of the United States
and, where applicable, to other persons in regard to the rights they derive from a person described above.
Article 4
Equality of Treatment
Persons designated in Article 3 who reside in the territory of a Party shall receive equal treatment with nationals of that Party in the application of its laws regarding eligibility for and the payment of benefits.
Article 5
Export of Benefits
Unless otherwise provided in this Agreement, any provision of the laws of a Party which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from the territory of that Party shall not be applicable to the persons who reside in the territory of the other Party.
Where the laws of a Party provide or allow that a benefit be payable in a third country, then that benefit, when payable by virtue of Part III, is also payable in that third country.
Where qualification for an Australian benefit is subject to limitations as to time, then references to Australia in those limitations shall be read also as references to the United States when that benefit is payable by virtue of this Agreement.
A benefit payable by a Party by virtue of this Agreement or under its laws shall be paid by that Party without the deduction of administrative fees and charges by the government or the corresponding Competent Authority for processing and paying that benefit, when the person qualifying for the benefit is in the territory of the other Party.
Any provisions of Australian laws which prohibit the payment of an Australian benefit to a former Australian resident who:
(a) returns to Australia to again become an Australian resident;
(b) claims an Australian benefit; and
(c) departs Australia within a period specified in that law,
shall not apply to a person who receives that benefit by virtue of the Agreement.
Section 202(t)(11) (E) of the Social Security Act of the United States shall not apply to an Australian national unless he or she is a resident of the United States, Australia or a third country with which the United States has a Social Security agreement in force concluded pursuant to section 233 of the Social Security Act.
PART II
Provisions Concerning Applicable Laws
Article 6
Coverage Provisions
This Part only applies, with respect to an employee, or the employer of that employee, where either or both of the following circumstances occur:
(a) without the application of this Part an employee or the employer of that employee would otherwise be covered by both the laws of Australia and the United States;
(b) the employee has been sent from the territory of the United States to the territory of Australia in accordance with paragraph 3 and, based upon documentation issued by the Agency of the United States, the employee and employer are subject to United States laws.
Except as otherwise provided in this Article, a person employed within the territory of one of the Parties and the person's employer shall, with respect to that employment, be subject to the laws of only that Party.
Where a person who is normally employed in the territory of one Party by an employer in that territory is sent by that employer to the territory of the other Party for a temporary period, the person and the person's employer shall be subject to the laws of only the first Party as if the employee were employed in the territory of the first Party provided that the period of employment in the territory of the other Party is not expected to and does not exceed 5 years. After 5 years, any further period of employment shall be subject to the laws of the other Party.
For the purposes of applying paragraph 3 in the case of an employee who is sent from the territory of the United States by an employer in that territory to the territory of Australia, that employer and an affiliated company of the employer (as defined under the laws of the United States) shall be considered one and the same, provided that the employment would have been covered under United States laws in the absence of this Agreement.
For the purposes of applying paragraph 3 in the case of an employee who is sent from the territory of Australia by an employer in that territory to the territory of the United States, that employer and a related entity of the employer shall be considered one and the same. 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.
Paragraph 3 shall apply where a person who has been sent by his or her employer from the territory of a Party to the territory of a third State is subsequently sent by that employer from the territory of the third State to the territory of the other Party.
Where a person who is a resident of the United States works in the capacity of a self‑employed person, the person shall be subject to the laws of only the United States.
Where a national of the United States who is a resident of Australia works in the capacity of a self-employed person, the person shall not be subject to the laws of the United States.
Where the same activity is considered to be self‑employment under the laws of one Party and employment under the laws of the other Party, that activity shall be treated according to the provisions of this Article concerning self-employment.
A person, or that person’s employer, who would otherwise be covered under the laws of both Parties with respect to employment of that person as an officer or member of a crew on a ship or aircraft shall, with respect to that employment, be subject only to the laws of the Party of which that person is a resident.
This Agreement shall not affect the provisions of the Vienna Convention on Diplomatic Relations of April 18, 1961, or of the Vienna Convention on Consular Relations of April 24, 1963.
If an employee:
(i) is subject to the laws of one Party (“the first Party”);
(ii) was sent, whether before, on or after the entry into force of this Agreement, by the Government of the first Party to work in the territory of the other Party (“the second Party”);
(iii) is working in the territory of the second Party in the employment of the Government of the first Party;
(iv) is not working permanently in the territory of the second Party; and
(v) is not exempt from the laws of the second Party by virtue of the conventions mentioned in paragraph 11;
the Government of the first Party and the employee shall be subject only to the laws of the first Party, and, if the spouse of the employee also meets the conditions specified in subparagraphs (iii)-(v), the spouse and the Government of the first Party shall be subject only to the laws of the first Party for that employment. For the purposes of this paragraph, “Government” includes, in relation to the United States, an instrumentality of the United States and, in relation to Australia, a political subdivision or local authority of Australia.
The Competent Authorities of the two Parties may for the purposes of this Article by agreement in writing:
(a) extend the period of 5 years referred to in paragraph 3 for any employee; or
(b) provide that an employee is deemed to work in the territory of a particular Party or on a ship or aircraft in international traffic under the laws of a particular Party and is subject only to the laws of that Party.
Any agreement made under paragraph 13 may apply to either or both of the following:
(a) a class of employees;
(b) particular work or a particular type of work (including work that has not occurred at the time such agreement is made).
PART III
Provisions on Benefits
Article 7
United States Benefits
Where a person has completed at least six quarters of coverage under United States laws, but does not have sufficient periods of coverage to satisfy the requirements for entitlement to benefits under United States laws, the Agency of the United States shall take into account, for the purpose of establishing entitlement to benefits under this Article, periods of Australian working life residence which do not coincide with periods of coverage already credited under United States laws.
In determining eligibility for benefits under paragraph 1 of this Article, the Agency of the United States shall credit one quarter of coverage for every three months of Australian working life residence certified by the Agency of Australia; however, no period of Australian working life residence shall be credited for any calendar quarter already credited as a quarter of coverage under United States laws. The total number of quarters of coverage to be credited for a year shall not exceed four.
Where entitlement to a benefit under United States laws is established according to the provisions of paragraph 1, the Agency of the United States shall compute a pro rata Primary Insurance Amount in accordance with United States laws based on (a) the person's average earnings credited exclusively under United States laws and (b) the ratio of the duration of the person's periods of coverage completed under United States laws to the duration of a coverage lifetime as determined in accordance with United States laws. Benefits payable under United States laws shall be based on the pro rata Primary Insurance Amount.
Entitlement to a benefit from the United States which results from paragraph 1 shall terminate with the acquisition of sufficient periods of coverage under United States laws to establish entitlement to an equal or higher benefit without the need to invoke the provision of paragraph 1 of this Article.
Article 8
Residence or Presence in the United States or a Third State for Australian Benefits
Where a person would be qualified under the laws of Australia or by virtue of this Agreement for a benefit except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:
(a) is an Australian resident or residing in the United States or a third State with which Australia has concluded an agreement on social security that includes provision for cooperation in the assessment and determination of claims for benefits; and
(b) is in Australia, or the United States or that third State,
that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purpose of lodging that claim, to be an Australian resident and in Australia on that date.
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 the United States shall be regarded as being in Australia.
Article 9
Totalisation in Relation to Australian Benefits
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, for that benefit under the laws of Australia;
(b) a period of Australian working life residence equal to or greater than the period identified in accordance with paragraph 4 for that person; and
(c) a United States period of coverage,
then for the purposes of a claim for that Australian benefit, that United States period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the laws of Australia, to be a period as an Australian resident.
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 laws of Australia for entitlement of that person to a benefit; and
(b) has accumulated United States periods of coverage in two or more separate periods that equal or exceed in total the period referred to in subparagraph (a),
the total of the United States periods of coverage shall be deemed to be one continuous period.
For all purposes of this Article, where a period as an Australian resident and a United States period of coverage coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident but when it is not possible for the United States Agency to determine the time when specific periods of coverage were completed in any one calendar year, it shall be assumed that those periods of coverage do not coincide with periods in that year as an Australian resident but in no case shall the total of all those periods exceed one calendar year.
The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 shall be:
(a) for the purposes of an Australian benefit that is payable to a person who is outside Australia, the minimum period required shall be 12 months, of which at least 6 months must be continuous; and
(b) for the purpose of an Australian benefit that is payable to a person who is in Australia, there shall be no minimum period.
Article 10
Calculation of Australian Pro Rata Benefits
Subject to paragraphs 2, 3 and 4, where an Australian benefit is payable 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 laws 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 United States benefit paid to that person under the laws specified in Article 2(1)(a) 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 working life residence in Australia (not exceeding 300) by the amount of that United States benefit and dividing that product by 300.
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 laws of Australia.
When an Australian benefit is payable by virtue of this Agreement or otherwise to a person who is outside Australia, benefits payable under the Supplemental Security Income program of the United States and other benefits of a similar character payable under the laws of the United States or any political subdivision thereof shall not be counted as income for the purposes of calculating the rate of an Australian benefit.
The provisions in paragraphs 1 and 3 shall continue to apply for 26 weeks where a person returns temporarily to Australia.
Subject to the provisions of paragraphs 6 and 7, where an Australian benefit is payable 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 laws of Australia but disregarding in that calculation any United States benefit received by that person and by the partner of that person;
(b) deducting the amount of the United States benefit 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 laws of Australia, using as the person's income the amount calculated under subparagraph (a).
The provisions in paragraph 5 shall continue to apply for 26 weeks where a person departs temporarily from Australia.
Where the rate of a benefit calculated in accordance with paragraph 5 is less than the rate of that benefit which would be payable under paragraph 1 if the person concerned were outside Australia, the first-mentioned rate shall be increased to an amount equivalent to the second-mentioned rate.
Where a member of a couple is, or both that person and his or her partner are, entitled to a United States benefit or benefits, each of them shall be deemed, for the purpose of paragraphs 1 and 5 and for the laws of Australia, to be entitled to half of either the amount of that benefit or total of both of those benefits, as the case may be.
Article 11
Australian Working Life Residence
For the purposes of Articles 9 and 10, a period of Australian working life residence in relation to a person means a period defined as such in the laws of Australia.
PART IV
Miscellaneous Provisions
Article 12
Administrative Arrangements
The Competent Authorities of the two Parties shall:
(a) make all necessary administrative arrangements for the implementation of this Agreement and designate liaison agencies;
(b) communicate to each other information concerning the measures taken for the application of this Agreement; and
(c) communicate to each other, as soon as possible, information concerning all changes in their respective laws which may affect the application of this Agreement.
Article 13
Exchange of Information and Mutual Assistance
The Competent Authorities and the Agencies of the Parties, within the scope of their respective authorities, shall assist each other in implementing this Agreement. This assistance shall be free of charge, subject to exceptions to be agreed upon in an administrative arrangement.
Unless otherwise required by the national statutes of a Party, information about an individual which is transmitted in accordance with the Agreement to that Party by the other Party shall be used exclusively for purposes of implementing the Agreement. Such information received by a Party shall be governed by the national statutes of that Party for the protection of privacy and confidentiality of personal data.
In no case shall paragraphs 1 or 2 be construed so as to impose on the Competent Authority or an Agency of a Party the obligation:
(a) to carry out administrative measures at variance with the statutes or the administrative practice of that or of the other Party; or
(b) to furnish information which is not obtainable under the statutes or in the normal course of the administrative practice of that or of the other Party.
Article 14
Documents
Where the laws of a Party provide that any document which is submitted to the Competent Authority or Agency of that Party shall be exempted, wholly or partly, from fees or charges, including consular and administrative fees, the exemption shall also apply to corresponding documents which are submitted to the Competent Authority or Agency of the other Party in the application of this Agreement.
Documents and certificates which are presented for purposes of this Agreement shall be exempted from requirements for authentication by diplomatic or consular authorities.
Copies of documents which are certified as true and exact copies by the Agency of one Party shall be accepted as true and exact copies by the Agency of the other Party, without further certification. The Agency of each Party shall be the final judge of the probative value of the evidence submitted to it from whatever source.
Article 15
Correspondence
The Competent Authorities and Agencies of the Parties may correspond directly with each other and with any person wherever the person may reside whenever it is necessary for the administration of this Agreement.
Article 16
Applications for Benefits
A written application for benefits filed with the Agency of one Party shall protect the rights of the claimants under the laws of the other Party if the applicant requests that it be considered an application under the laws of the other Party.
If an applicant has filed a written application for benefits with the Agency of one Party and has not explicitly requested that the application be restricted to benefits under the laws of that Party, the application shall also protect the rights of the claimants under the laws of the other Party if the applicant provides information at the time of filing indicating that the person on whose record benefits are claimed has completed periods under the laws of the other Party, as defined in subparagraphs 1(g)(i) or 1(i) of Article 1.
The provisions of Part III shall apply to benefits under United States laws only if an application is filed on or after the date this Agreement enters into force.
Article 17
Determination of Claims
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 United States period of coverage; and
(b) any event which is relevant to that eligibility or entitlement,
shall, subject to this Agreement, be taken into account to the extent that those periods or those events are applicable in regard to that person and whether they were accumulated or occurred before, on or after the date on which this Agreement enters into force. However, neither Party shall take into account such periods of coverage or residence that occurred prior to the earliest date for which periods of coverage or residence may be credited under its laws.
Where:
(a) a benefit is paid by the United States to a person in respect of a past period whether by virtue of this Agreement or otherwise; and
(b) for all or part of that period, Australia has paid to that person a pension, benefit or allowance under its social security laws; and
(c) the amount of the pension, benefit or allowance paid by Australia would have been reduced had the benefit paid by the United States been paid during that period;
then
(d) the amount that would not have been paid by Australia 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 Australia and may be recovered by Australia; and
(e) Australia may recover all or part of that debt under the provisions of the Acts forming the social security law of Australia.
This Agreement shall not establish any claim to payment of a benefit for any period before the date of the entry into force of the Agreement, or to a lump‑sum death benefit under United States laws if the person died before the date of entry into force of the Agreement.
Article 18
Prescribed Time Limits and Appeals
Any claim, notice or written appeal which, under the laws of one Party, must have been filed within a prescribed period with the Agency of that Party, but which is instead filed within the same period with the Agency of the other Party, shall be considered to have been filed on time.
A written appeal against a decision made by the Agency of one Party may be validly filed with the Agency of either Party. The appeal shall be dealt with according to the procedure and laws of the Party whose decision is being appealed.
In relation to a decision made by the Agency of Australia, the reference in paragraph 2 to a written appeal is a reference to an appeal that may be made to an administrative body established by, or administratively for the purposes of, the social security laws of Australia.
Article 19
Currency
Payments under this Agreement may be made in the currency of the Party making the payments.
In case provisions designed to restrict the exchange or exportation of currencies are introduced by either Party, the Governments of both Parties shall immediately take measures necessary to ensure the transfer of sums owed by either Party under this Agreement.
Article 20
Resolution of Disputes
Any disagreement regarding the interpretation or application of this Agreement shall be resolved by consultation between the Competent Authorities.
Article 21
Supplementary Agreements
This Agreement may be amended in the future by supplementary agreements which, from their entry into force, shall be considered an integral part of this Agreement. Such agreements may be given retroactive effect if they so specify.
Article 22
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 country to which that request was made.
PART V
Transitional and Final Provisions
Article 23
Transitional Provisions
In applying paragraph 3 of Article 6, in the case of persons who were sent to the territory of a Party prior to the date of entry into force of this Agreement, the period of employment referred to in that paragraph shall be considered to begin on that date.
Determinations concerning entitlement to benefits which were made before the entry into force of this Agreement shall not affect rights arising under it.
Article 24
Entry into Force and Termination
1. This Agreement shall enter into force on the first day of the third month following the month in which notes are exchanged by the Parties through the diplomatic channel notifying each other that all constitutional or legislative matters as are necessary to give effect to this Agreement have been finalised.
Subject to paragraph 3, this Agreement shall remain in force until the expiration of 12 months from the date on which either Party received from the other a note through the diplomatic channel indicating the intention of the other Party to terminate this Agreement.
3. In the event that this Agreement is terminated in accordance with paragraph 2, the Agreement shall continue to have effect in relation to the benefit entitlements of all persons who:
(a) at the date of termination, are in receipt of benefits; or
(b) prior to the expiry of the period referred to in that paragraph, have lodged claims for, and would be entitled to receive, benefits by virtue of this Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed the present Agreement.
DONE in duplicate at Canberra this twenty seventh day of September 2001
FOR THE GOVERNMENT OF AUSTRALIA:
FOR THE GOVERNMENT OF THE UNITED STATES OF aMERICA:
AMANDA VANSTONE
J. THOMAS SCHIEFFER
[Signatures omitted]
ADMINISTRATIVE ARRANGEMENT
FOR THE IMPLEMENTATION OF THE AGREEMENT
BETWEEN
THE GOVERNMENT OF AUSTRALIA AND
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
ON SOCIAL SECURITY
The Competent Authority of Australia and
the Competent Authority of the United States of America,
In conformity with Article 12, paragraph (a), of the Agreement between Australia and the United States of America on Social Security of this date, hereinafter referred to as the “Agreement”, have agreed as follows:
CHAPTER I
General Provisions
Article 1
The terms used in this Administrative Arrangement shall have the same meaning as in the Agreement.
Article 2
The liaison agencies referred to in Article 12, paragraph (a), of the Agreement shall be:
(a) for the United States, the Social Security Administration,
(b) for Australia, Centrelink, 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 Australian Taxation Office.
The liaison agencies designated in paragraph 1 shall agree upon the joint procedures and forms necessary for the implementation of the Agreement and this Administrative Arrangement.
CHAPTER II
Provisions on Coverage
Article 3
Where the laws of a Party are applicable in accordance with any of the provisions of Article 6 of the Agreement, the Agency of that Party, upon request of the employer or self-employed person, shall, in circumstances agreed upon by the Parties, issue a certificate stating that the employee, or the employer with respect to that employee, or self-employed person is subject to those laws and indicating the duration for which the certificate shall be valid. This certificate shall be proof that the named worker and the employer in respect of the named worker are exempt from the laws on compulsory coverage of the other Party.
The certificate referred to in paragraph 1 shall be issued:
(a) in the United States, by the Social Security Administration; and
(b) in Australia, by the Commissioner of Taxation or an authorised representative of the Commissioner.
The Agency of a Party which issues a certificate referred to in paragraph 1 shall furnish a copy of the certificate or agreed details of the certificate to the liaison agency of the other Party as needed by the latter Agency.
CHAPTER III
Provisions on Benefits
Article 4
Applications for benefits under the Agreement shall be submitted on forms to be agreed upon by the liaison agencies of the two Parties.
The Agency of the Party with which an application for benefits is first filed in accordance with Article 16 of the Agreement shall provide the liaison agency of the other Party with such evidence and other information as may be required to complete action on the claim.
The Agency of a Party which receives an application that was first filed with an Agency of the other Party shall without delay provide the liaison agency of that Party with such evidence and other available information as may be required for it to complete action on the claim.
The Agency of the Party with which an application for benefits has been filed shall verify the information pertaining to the applicant and the applicant's family members. The types of information to be verified shall be agreed upon by the liaison agencies of both Parties.
CHAPTER IV
Miscellaneous Provisions
Article 5
In accordance with measures to be agreed upon pursuant to Article 2, paragraph 2, of this Administrative Arrangement, the Agency of one Party shall, upon request of the Agency of the other Party, furnish available information relating to the claim of any specified individual for the purpose of administering the Agreement.
Article 6
The liaison agencies of the two Parties shall exchange statistics on the number of certificates issued under Article 3 of this Administrative Arrangement and on the payments made to beneficiaries under the Agreement. These statistics shall be furnished annually in a form to be agreed upon.
Article 7
Where administrative assistance is requested under Article 13 of the Agreement, expenses other than regular personnel and operating costs of the Agency providing the assistance shall be reimbursed, except as may be agreed to by the Competent Authorities or liaison agencies of the Parties.
Upon request, the liaison agency of either Party shall furnish without cost to the liaison agency of the other Party any medical information and documentation in its possession relevant to the disability of the claimant or beneficiary.
Where the Agency of a Party requires that a person in the territory of the other Party who is receiving or applying for benefits under the Agreement submit to a medical examination, such examination, if requested by that Agency, shall be arranged by the liaison agency of the other Party in accordance with the rules of the Agency making the arrangements and at the expense of the Agency which requests the examination.
The liaison agency of one Party shall reimburse amounts owed under paragraph 1 or 3 of this Article upon presentation of a statement of expenses by the liaison agency of the other Party.
Article 8
This Administrative Arrangement shall enter into force on the date of entry into force of the Agreement and shall have the same period of validity.
DONE in duplicate at Canberra this twenty seventh day of September 2001.
For the Competent Authority of Australia:
For the Competent Authority ofthe United States of America:
AMANDA VANSTONE
J. THOMAS SCHIEFFER
[Signatures omitted]
Schedule 2 Amendment
(regulation 3)
[1] After Schedule 13
insert
Schedule 14 — Germany
Note: See section 5.
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY
AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY (the “Contracting Parties”)
DESIRING to strengthen the existing friendly relations between the two States and resolved to regulate their relations in the field of social security:
HAVE AGREED as follows:
PART I
GENERAL PROVISIONS
Article 1
Definitions
For the purposes of this Agreement,
(a) “national” means,
as regards the Federal Republic of Germany, a German citizen within the meaning of the Basic Law (Grundgesetz) for the Federal Republic of Germany; and
as regards Australia, a citizen of Australia;
(b) “legislation” means,
as regards the Federal Republic of Germany, the laws, regulations and other general legislative acts related to the branches of social security specified in paragraph 1(a) of Article 2; and
as regards Australia, the laws specified in subparagraph 1(b) of Article 2;
(c) “competent authority” means,
as regards the Federal Republic of Germany, the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Sozialordnung); and
as regards Australia, the Secretary to the Commonwealth Department responsible for the laws specified in subparagraph 1(b) of Article 2;
(d) “institution” means,
as regards the Federal Republic of Germany, the institution or authority responsible for the application of the legislation specified in paragraph 1(a) of Article 2; and
as regards Australia, the institution or agency responsible for the administration of the laws specified in subparagraph 1(b) of Article 2;
(e) “German period of coverage” means a period of contributions or any other period insofar as it is, under the German legislation, equivalent to a period of contributions for the purposes of benefit entitlement;
(f) “period of Australian working life residence” means a period defined as such in the Australian legislation;
(g) “benefit” means, in relation to a Contracting 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 pension, benefit or allowance;
(h) “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;
(i) “carer payment” means, in relation to Australia a carer payment payable to the partner of a person who is in receipt of an Australian disability support pension or age pension.
Any term not defined in paragraph 1 has the meaning assigned to it in the applicable legislation.
Article 2
Legislative scope
Unless otherwise provided in this Agreement, it shall apply:
(a) as regards the Federal Republic of Germany, to the legislation concerning:
(i) Wage Earners' Pension Insurance (Rentenversicherung der Arbeiter),
(ii) Salaried Employees' Pension Insurance (Rentenversicherung der Angestellten),
(v) Farmers' Old Age Security (Alterssicherung der Landwirte); and
(b) as regards Australia, to the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(i) age pension,
(ii) disability support pension,
(iii) carer payment,
(iv) pensions payable to widowed persons, and
(v) double orphan pension.
Notwithstanding the provisions of paragraph 1(b), this Agreement shall apply to women who are receiving wife pension at the date this Agreement comes into force and who are the wives of:
(a) persons receiving age pension; or
(b) persons receiving disability support pension for the severely disabled.
This Agreement shall also apply to laws, regulations and other general legislative acts in so far as they amend, supplement or replace the legislation of the Contracting Parties.
Notwithstanding the provisions of paragraph 1, the legislation of the Contracting Parties shall not include any laws made at any time for the purpose of giving effect to any other agreement on social security or any supra-national law.
Australian carer payment and double orphan pension are included in this Agreement to reciprocate those proportions of German benefit included to support a spouse and other dependants.
Article 3
Personal scope
Unless otherwise provided in this Agreement, it shall apply:
(a) in the operation of the German legislation, to
(i) nationals of either Contracting Party;
(ii) refugees, within the meaning of Article 1 of the Convention of July 28, 1951 and of the Protocol of January 31, 1967 Relating to the Status of Refugees;
(iii) stateless persons, within the meaning of Article 1 of the Convention Relating to the Status of Stateless Persons of September 28, 1954;
(iv) other persons to the extent that they derive rights from a national of either Contracting Party, from a refugee or from a stateless person within the meaning of this Article;
(v) nationals of a state other than a Contracting Party, unless they are included in the group of persons specified in subparagraph (iv); and
(b) in the operation of the Australian legislation, to any person who is or has been an Australian resident and, where applicable, to other persons in regard to the rights they derive from the persons described above.
Article 4
Equality of treatment
Unless otherwise provided in this Agreement:
(a) in the application of the German legislation, persons specified in subparagraphs (a)(i), (ii), (iii) and (iv) of Article 3 who ordinarily reside in the territory of either Contracting Party shall be treated equally to German nationals; and
(b) in the application of the Australian legislation, persons specified in paragraph (b) of Article 3 shall be treated equally.
Unless otherwise provided in this Agreement, benefits under the German legislation shall be awarded to nationals of Australia, who ordinarily reside outside the territories of both Contracting Parties, under the same conditions as they are awarded to German nationals who ordinarily reside outside the territories of the Contracting Parties.
Article 5
Equivalence of territories
Unless otherwise provided in this Agreement, the German legislation which requires that the acquisition of an entitlement to benefits or the payment of benefits be dependent on ordinarily being resident in the Federal Republic of Germany shall not be applicable to the persons specified in subparagraphs (a)(i), (ii), (iii) and (iv) of Article 3 who ordinarily reside in Australia.
Subject to paragraph 3, where a person would be qualified for a benefit under the Australian legislation or under this Agreement except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:
(a) is an Australian resident or ordinarily residing in the territory of the Federal Republic of Germany or of a third country with which Australia has implemented an agreement on social security that includes provision for co-operation in the lodgement and determination of claims for benefits; and
(b) is in Australia, the territory of the Federal Republic of Germany or the territory of that third country,
that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date.
The requirement for a person to have been an Australian resident at some time shall not apply to a person who claims a double orphan pension under this Agreement.
PART II
PROVISIONS CONCERNING BENEFITS
Article 6
Totalisation and calculation – German benefits
The following shall apply as regards the German institution:
(a) When German periods of coverage have been completed, periods of Australian working life residence shall also be taken into account for purposes of determining eligibility for benefits under German legislation, provided that these periods do not coincide with the above mentioned periods of coverage.
(b) The periods of Australian working life residence to be taken into account under subparagraph (a) shall be assigned to that branch of insurance whose institution is responsible for determining entitlement to a pension as if only the German legislation is applied. If, according to the foregoing, the Miners' Pension Insurance is the competent institution, periods of Australian working life residence shall be taken into account for the Miners' Pension Insurance only if the relevant person was employed in a mining enterprise in underground operations during this time.
(c) For purposes of determining eligibility for a benefit payable under the German legislation:
(i) a month which is recognised as a month in a period of Australian working life residence shall be considered as a month of contributions under the German legislation; and
(ii) a year which is recognised as a year in a period of Australian working life residence shall be considered as twelve months of contributions under the German legislation.
(d) Earnings points shall be determined solely on the basis of pension rating periods to be taken into account under the German legislation in the calculation of German benefits.
Article 7
Totalisation – Australian benefits
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 Australian legislation for a benefit;
(b) a period of Australian working life residence equal to or greater than the period identified in accordance with paragraph 4 for that person; and
(c) a German period of coverage,
then for the purposes of a claim for that Australian benefit, that German period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the Australian legislation, to be a period in which that person was an Australian resident.
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 Australian legislation for qualification of that person for a benefit; and
(b) has accumulated a German period of coverage in two or more separate periods that equals or exceeds in total the period referred to in subparagraph (a),
the total of the German periods of coverage shall be deemed to be one continuous period.
For the purposes of this Article, where a person's period as an Australian resident and a German period of coverage coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident.
The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 shall be as follows:
(a) for the purposes of an Australian benefit that is payable to a person who is not an Australian resident, the minimum period required shall be 12 months, of which at least six months must be continuous; and
(b) for the purposes of an Australian benefit that is payable to an Australian resident, no minimum period shall be required.
For the purposes of a claim by a person for a pension payable to a widowed person, that person shall be deemed to have accumulated a German period of coverage for which his or her partner accumulated a German period of coverage but any period during which the person and his or her partner both accumulated German periods of coverage shall be taken into account once only.
Article 8
Calculation – Australian benefits
Subject to paragraph 2, where a person who is outside Australia is qualified for an Australian benefit by virtue of this Agreement, other than double orphan pension, the rate of benefit shall be determined according to the Australian legislation.
Subject to paragraph 3, 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 Australian legislation but, when assessing the income of that person for the purposes of calculating the rate of the Australian benefit, only a proportion of the German benefit shall be regarded as income. That proportion shall be calculated by multiplying the number of whole months (not exceeding 300) of Australian working life residence used in the assessment of that person's Australian benefit by the amount of German benefit and dividing that product by 300.
Only a person receiving a proportionalised Australian benefit shall be entitled to receive the concessional assessment of income described in paragraph 2.
Where an Australian benefit is payable, whether by virtue of this Agreement or otherwise, to a person who ordinarily resides in the Federal Republic of Germany, Australia shall disregard, when assessing the income of that person, any German social assistance and payments of a similar character provided in case of need insofar as they are proposed by the liaison agencies specified in Article 16 and jointly approved by the competent authorities and listed in the Administrative Arrangement (Verwaltungsvereinbarung).
The provisions in paragraphs 1, 2 and 4 shall continue to apply for 26 weeks where a person comes temporarily to Australia.
Subject to the provisions of paragraph 7, where an Australian benefit is payable only by virtue of the 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 Australian legislation but disregarding in that calculation any German benefit to which the person is entitled;
(b) deducting that German benefit 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 Australian legislation, using as the person's income the amount calculated under subparagraph (a).
The provisions in paragraph 6 shall continue to apply for 26 weeks where a person departs temporarily from Australia.
Where a member of a couple is, or both that member and his or her partner are, entitled to a German benefit or benefits and/or any payment referred to in this Article, each of them shall be deemed, for the purposes of this Article and of the Australian legislation, 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.
Article 9
Payment of Australian benefits overseas
Australian benefits are also payable into the territory of the Federal Republic of Germany.
Where the Australian legislation provides that a benefit is payable outside the territory of Australia, then that benefit, when payable under this Agreement, is also payable outside the territories of both Contracting Parties.
Where qualification for an Australian benefit is subject to limitations as to time, then references to Australia in those limitations shall be read also as references to the territory of the Federal Republic of Germany.
Any provisions of Australian legislation which prohibit the payment of an Australian benefit to a former Australian resident who:
(a) returns to Australia to again become an Australian resident;
(b) claims an Australian benefit; and
(c) departs Australia within a period specified in that legislation,
shall not apply to a person who receives that benefit by virtue of the Agreement.
Where a double orphan pension would be payable to a person under the social security laws of Australia, in respect of a young person whose sole surviving parent died while that young person was an Australian resident, if that person and that young person were residents of Australia, that pension shall, subject to the provisions of those laws, be payable while that person and that young person are residents of the Federal Republic of Germany.
PART III
MISCELLANEOUS PROVISIONS
CHAPTER 1
ADMINISTRATIVE ASSISTANCE
Article 10
Mutual assistance
The institutions, associations of institutions, authorities and competent authorities of the Contracting Parties shall provide assistance to each other in the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, in the same manner in which they apply their own legislation.
The institution of one Contracting Party, when requested by the institution of the other Contracting Party, shall, to the extent permitted by its legislation, provide to that institution free of charge any medical data and documents in its possession relating to the general disability of an applicant or beneficiary.
If an institution of one Contracting Party requires an applicant or beneficiary who lives in the territory of the other Contracting Party to undergo a medical examination, such examination shall, at the request of that institution, be arranged or carried out by the institution of the latter Contracting Party. The medical examination will be done at the expense of the requesting institution.
The agencies referred to in paragraph 1 shall, within their respective areas of jurisdiction and to the extent possible, communicate to each other such information and transmit such documentation as may be required to maintain the rights and obligations of the persons concerned under the legislation specified in paragraph 1 of Article 2 and under this Agreement. Such information or documentation regarding a person shall also be transmitted to that person at his or her request.
The assistance referred to in paragraph 1 shall be provided free of charge, subject to any arrangement reached between the competent authorities for the reimbursement of certain types of expenses.
Article 11
Fees
Where, under the legislation of one Contracting Party documents submitted to an authority or institution of that Contracting Party are partly or fully exempt from administrative charges, including consular fees, this exemption shall also apply to documents which are submitted to an authority or institution of the other Contracting Party in accordance with its legislation.
Documents which, in the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, must be submitted to an authority or institution of one Contracting Party, may be submitted to an authority or institution of the other Contracting Party without consular authentication or any other similar formality.
Article 12
Languages of communication
In the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, the agencies referred to in paragraph 1 of Article 10 may communicate in their respective official languages directly with each other as well as with persons concerned and with their representatives.
Article 13
Lodgement of documents
If a claim for a benefit under the legislation of one Contracting Party has been submitted to an agency of the Contracting Party which, under the legislation of the latter Contracting Party, is competent to receive a claim for a corresponding benefit, that claim shall be deemed to have been submitted to the competent institution of the first Contracting Party on the same date as the claim was lodged with the agency in the other Contracting Party. This provision shall apply, as appropriate, to other claims, notices and appeals.
Where a claim, notice or appeal is received by an agency of one Contracting Party, that agency shall ensure it is forwarded without delay to the appropriate liaison agency of the other Contracting Party.
In relation to Australia, an appeal means an appeal submitted to a body established under the social security laws of Australia.
Subject to paragraph 5, a claim by a person for a benefit from a Contracting Party, whether lodged in the territory of that Contracting Party or of the other Contracting Party, shall be deemed to be a claim for a corresponding benefit from that other Contracting Party if the information disclosed by the person in the original claim indicates that the person may be qualified for corresponding benefit. The foregoing shall not apply if the person is under the normal age pension age of the other Contracting Party and the person explicitly requests that the determination of entitlement to old age benefits acquired under the legislation of the other Contracting Party be deferred.
Paragraph 4 shall not apply if the original claim or a copy is not received by the appropriate liaison agency of the other Contracting Party within six months of the lodgement of the original claim.
Article 14
Recovery of overpayments
Where a German institution has made an overpayment of a benefit to a person for any period and the Australian institution is to pay arrears of an Australian benefit for the same period, the Australian institution shall, at the request of that German institution, deduct from those arrears the amount of the overpayment by the German institution and shall transfer the amount so deducted to the German institution.
Where:
(a) a benefit is paid or payable under German legislation to a person in respect of a past period;
(b) for all or part of that period, Australia has paid to that person a benefit under its social security law; and
(c) the amount of the benefit paid by Australia would have been reduced had the benefit paid or payable under German legislation been paid during that period;
then
(d) the amount that would not have been paid by Australia 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 and may be recovered by Australia; and
(e) Australia may determine that the amount or only part of that debt may be deducted from future payments of a benefit payable by Australia to that person.
Where a German institution has not yet paid the benefit described in subparagraph 2(a) to the person:
(a) the German institution shall, at the request of the institution of Australia pay the amount of the benefit necessary to meet the debt described in subparagraph 2(d) to the Australian institution and shall pay any excess to the person; and
(b) any shortfall may be recovered by the competent authority of Australia under subparagraph 2(e).
In paragraph 2, “benefit” means, in relation to Australia, a pension, benefit or allowance that is payable under the social security law of Australia.
Article 15
Data protection
In providing assistance under Article 10, a Contracting Party shall supply to the other Contracting Party data about a person, particularly about any payments it makes to that person, only where that person:
(a) wishes to make use of any provision of the Agreement; or
(b) claims a benefit from the first Contracting Party after the Agreement enters into force; or
(c) is receiving a benefit from the second Contracting Party before the Agreement enters into force and authorises the first Contracting Party to provide the data to the second Contracting Party.
Notwithstanding any laws or administrative practices of a Contracting Party, no personal data concerning a person which is received by that Contracting Party from the other Contracting Party shall be transferred or disclosed to any other country or to any organisation within that other country without the prior written consent of that other Contracting Party.
The Contracting Parties agree that there is no obligation on any institution to disclose personal data except under paragraph 1.
The processing and use of any personal data or any business or industrial secret made in accordance with this Agreement or with any arrangement for the implementation of the Agreement shall be governed by the respective national laws concerning the protection of data. The said data shall be transmitted to the bodies specified in Article 16 only. The recipient of the data shall be obliged to protect the data effectively against unauthorised access, modification and disclosure.
Data transmitted in accordance with this Article shall not be disclosed by the recipient without authorisation and shall be processed or used only for the purposes of implementing this Agreement or the legislation to which it applies. The passing on of this data by the recipient for other purposes is permissible in the framework of the law of the Contracting Party receiving the data provided this serves social security purposes including related judicial proceedings. However, the foregoing shall not prevent the Contracting Party receiving the data from passing it on in cases that are mandatory under the laws and regulations of that Party for the interests protected by criminal law or for the purposes of taxation. In all other cases the passing on to bodies other than those specified in Article 16 shall only be permissible upon prior consent of the transmitting bodies.
The transmitting body shall ensure that transmitted data is correct and reasonably necessary for the purpose for which the transmission is intended. Should the transmitting body find that data has been transmitted otherwise than in accordance with this paragraph the transmitting body shall notify the recipient immediately. The recipient shall be obliged to correct or delete the data. It shall, at the request of the transmitting body, notify that body of the purposes for which the transmitted data has been used and the results obtained from that usage.
The recipient of the data shall, upon the request of a person, provide to that person details of the data transmitted in relation to that person and the uses for which that data is intended to be put. In all other cases, the right of the person concerned to receive details of the data held in relation to that person shall be determined by the national law of the Contracting Party whose body requested the information.
A recipient of data transmitted under this Agreement shall delete that data when it ceases to be necessary for the application of this Agreement or the legislation to which the Agreement applies.
Should the transmission of incorrect data result in a person receiving a lesser amount of benefit, the agency responsible for paying the benefit shall adjust the amount of the benefit and pay any retrospective amounts owing to the person when the correct data is received.
CHAPTER 2
IMPLEMENTATION AND INTERPRETATION OF THE AGREEMENT
Article 16
Implementation arrangements and liaison agencies
The Governments of the Contracting Parties or the competent authorities may conclude arrangements for the implementation of this Agreement. The competent authorities shall keep each other informed about any amendments or additions to their legislation.
The following are designated as liaison agencies for the implementation of this Agreement:
(a) in the Federal Republic of Germany,
for the Wage Earners' Pension Insurance,
the Landesversicherungsanstalt Oldenburg-Bremen, Oldenburg
for the Salaried Employees' Pension Insurance,
the Bundesversicherungsanstalt fur Angestellte, Berlin
for the Miners' Pension Insurance,
the Bundesknappschaft, Bochum
for the Steelworkers' Supplementary Insurance,
the Landesversicherungsanstalt für das Saarland, Saarbrucken
(b) in Australia,
the institution responsible for the administration of the laws specified in subparagraph 1(b) of Article 2.
Where German legislation does not already make provision to this effect, the liaison agency designated for the Wage Earners' Pension Insurance system shall be responsible, within the scope of that system, for all procedures including the determination and award of benefits, provided that:
(a) there are German periods of coverage and periods of Australian working life residence;
(b) the person entitled to a benefit ordinarily resides in Australia; or
(c) the person entitled to a benefit is an Australian national who ordinarily resides outside the territories of both Contracting Parties.
This paragraph shall not apply to the provision of medical, occupational, and supplementary rehabilitation benefits.
The jurisdiction of the Railways Insurance Institution and the Seamen's Insurance Institution shall remain unaffected.
The liaison agencies listed in paragraph 2 and the institutions mentioned in paragraph 4 shall, within their respective areas of jurisdiction, be responsible for generally informing the persons concerned about their rights and obligations under this Agreement.
The liaison agencies listed in paragraph 2 and the institutions mentioned in paragraph 4, with the participation of the competent authorities, shall conclude an Administrative Arrangement (Verwaltungsvereinbarung) setting out the administrative measures required and expedient for implementing this Agreement.
As far as possible, the liaison agencies listed in paragraph 2 and the institution mentioned in paragraph 4 shall compile statistics on the payments made under the Agreement for each calendar year. Where possible, these statistics will show the number and total amount of pensions and lump-sum settlements by type of pension. These statistics shall be exchanged.
Cash benefits payable to recipients in the territory of the other Contracting Party shall be paid without recourse to a liaison agency in that Contracting Party.
Article 17
Currency and exchange rate
To provide for the effective payment of benefits an institution of a Contracting Party may, at its discretion, pay a benefit to a person in the territory of the other Contracting Party in the currency of:
(a) the first Contracting Party;
(b) the other Contracting Party; or
(c) a third country.
If benefits of a German institution are paid in the currency of the other Contracting Party or of a third country, the conversion rate shall be the rate of exchange in effect on the day when the remittance is made.
Article 18
Resolution of disputes
Disagreements between the two Contracting Parties regarding the interpretation or application of this Agreement shall, as far as possible, be settled by the competent authorities.
Unless otherwise agreed, if a disagreement cannot thus be resolved it shall, at the request of either Contracting Party, be submitted to an arbitration tribunal whose composition shall be agreed upon by the Contracting Parties in each instance. The arbitration tribunal shall establish its own rules of procedure, including the allocation of costs. The decisions of the arbitration tribunal shall be binding.
PART IV
TRANSITIONAL AND FINAL PROVISIONS
Article 19
Consideration of entitlements under the Agreement
This Agreement shall not establish any entitlement to benefits for any period prior to its entry into force.
Unless otherwise provided in the Agreement, when the Agreement is being implemented and when rights under it (including deciding eligibility for benefits under the Agreement) are being determined, all valid and relevant events including periods of coverage and periods as an Australian resident, no matter when they occurred, shall be taken into consideration.
The legal force of former decisions shall not preclude the application of this Agreement.
If a benefit has been determined under German legislation with binding force before the entry into force of this Agreement, a review and recalculation under this Agreement of this benefit shall only be carried out if the beneficiary explicitly so requests.
Article 20
Concluding Protocol
The attached concluding protocol shall form an integral part of this Agreement.
Article 21
Entry into force
This Agreement shall be subject to ratification; the instruments of ratification shall be exchanged in Berlin as soon as possible.
This Agreement shall enter into force on the first day of the second month following the month in which the instruments of ratification are exchanged.
Article 22
Period of the Agreement
This Agreement shall be concluded for an indefinite period of time. Either Contracting Party may denounce this Agreement in writing through diplomatic channels at the end of a calendar year by giving three months' notice. This period of notice shall be calculated from the day on which the notice is received by the other Contracting Party.
In the event of termination by denunciation, the provisions of this Agreement shall continue to apply in respect of claims to benefits acquired not later than the effective date of that termination; restrictive legislation regarding the exclusion of an entitlement or the suspension or withdrawal of benefits on the grounds of temporary or ordinary residence in another state shall not be applicable to such claims.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed this Agreement.
DONE at Canberra on this thirteenth day of December 2000 in two copies in the English and German languages, each text being equally authentic.
FOR AUSTRALIA: FOR THE FEDERAL REPUBLIC OF GERMANY:
JOCELYN NEWMAN Dr HORST BÄCHMANN and WALTER RIESTER
[Signatures omitted]
CONCLUDING PROTOCOL TO THE AGREEMENT BETWEEN AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY ON SOCIAL SECURITY
At the time of signing the Agreement on Social Security concluded this day between Australia and the Federal Republic of Germany, the plenipotentiaries of both Contracting Parties stated that they are in agreement on the following points:
With reference to Article 2 of the Agreement:
(a) Part II of the Agreement shall not apply to the Steelworkers' Supplementary Insurance and to the Farmers' Old Age Security of the Federal Republic of Germany;
(b) subject to paragraph (c), where under the German legislation both the conditions for the application of the Agreement and the conditions for the application of any other convention or supranational arrangement are satisfied, the German institution shall disregard that other convention or supranational arrangement when applying the Agreement; and
(c) paragraph 4 of Article 2 and the preceding subparagraph shall not apply if the social security legislation, which arises for the Federal Republic of Germany from international treaties or supranational laws or is designed to implement them, contains provisions relating to the apportionment of insurance burdens.
With reference to Article 4 of the Agreement:
(a) provisions relating to the apportionment of insurance burdens that may be contained in international treaties between the Federal Republic of Germany and other States shall not be affected;
(b) the German legislation guaranteeing the participation of insured people and employers in the self government bodies of the institutions and their associations and in the adjudication of social security matters shall remain unaffected; and
(c) Australian nationals who ordinarily reside outside the territory of the Federal Republic of Germany shall be entitled to voluntary coverage under the legislation specified under subparagraphs 1(a)(i), (ii) and (iii) of Article 2 if they have periods of contributions under that legislation for at least sixty calendar months. This shall also apply to persons specified in subparagraphs (a)(ii) and (iii) of Article 3 who ordinarily reside in the territory of Australia.
With reference to Article 5 of the Agreement:
(a) With respect to contingencies under German Industrial Accident Insurance which occurred prior to 1 January 1997 the following shall apply:
Article 5 shall apply, as appropriate, to cash benefits payable under German Industrial Accident Insurance to beneficiaries who are Australian nationals and who ordinarily reside in Australia, provided that the applicable law of Australia or of a federal state or territory regarding statutory accident insurance provides for payment of corresponding cash benefits to German nationals who ordinarily reside in the territory of the Federal Republic of Germany. This shall apply, as appropriate, with regard to the persons specified in subparagraphs (a)(ii), (iii) and (iv) of Article 3 who ordinarily reside in Australia, provided that the applicable law of Australia or of a federal state or territory regarding statutory accident insurance provides for the payment of corresponding cash benefits to the persons specified in subparagraphs (a)(ii), (iii) and (iv) of Article 3, who ordinarily reside in the territory of the Federal Republic of Germany;
(b) the German legislation regarding cash benefits based on period of coverage completed under laws other than (German) federal law shall not be affected;
(c) the German legislation regarding cash benefits in respect of occupational accidents (including occupational diseases) for which the injured party was not insured under (German) federal law at the time the accident occurred shall not be affected;
(d) the German legislation regarding medical, occupational and supplementary rehabilitation benefits provided by a pension insurance institution shall not be affected. Australian legislation which provides for, applies to or affects disability support pension for a person who is not severely disabled shall not be affected;
(e) with regard to a pension under the German legislation governing reduced earning capacity, Article 5 of the Agreement shall apply to persons who ordinarily reside in Australia only if entitlement exists when the labour market situation is disregarded; and
(f) the German legislation providing for the suspension of claims under German pension insurance for persons who go abroad to evade criminal proceedings against them shall not be affected.
With reference to Article 6 of the Agreement:
(a) Article 6 shall apply, as appropriate, to benefits which are granted at the discretion of an institution under the German legislation;
(b) residence periods in Australia during which an employment or self employment was exercised shall be equivalent to the periods of compulsory contributions required under the German legislation for a claim to a pension;
(c) where the German legislation provides that the entitlement to benefits requires the completion of certain periods of coverage within a specified period and where the legislation also provides that this period is extended by certain circumstances or periods of coverage, periods of coverage under the legislation of the other Contracting Party or comparable circumstances within the territory of the other Contracting Party shall be taken into account for such an extension. Comparable circumstances are periods during which disability or age pensions or benefits on account of sickness, unemployment or industrial accidents (with the exception of pensions) were paid under the Australian legislation as well as periods of child raising in Australia; and
(d) mining enterprises within the meaning of subparagraph (b) of Article 6 are enterprises which mine minerals or similar substances and those which quarry stone and earth predominantly in underground operations.
With reference to Article 9 of the Agreement:
Australian disability support pension under the Agreement shall not be payable for more than 26 weeks to a person who is not severely disabled while that person is outside Australia.
With reference to Article 15 of the Agreement:
A person who:
(i) is in receipt of a pension on account of reduced earning capacity from the Federal Republic of Germany at the time the Agreement enters into force;
(ii) ceases to be entitled to that pension because of age; and
(iii) immediately qualifies for an age pension from the Federal Republic of Germany,
shall be deemed not to have claimed that age pension for the purposes of subparagraph 1(b) of Article 15.
With reference to Article 16 of the Agreement:
German court decisions and German institutions' notifications may be communicated direct to persons residing in Australia and may be sent by registered mail with acknowledgement of receipt. The first sentence shall also apply to decisions, notifications, and other documents which must be served, issued in connection with the implementation of the German law governing war victims' assistance and those laws which declare the first mentioned law to be applied accordingly.
In the implementation of the Agreement, the German legislation, to the extent that it contains more favourable provisions for persons who have suffered because of their political attitude or for reasons of their race, religion or ideology shall not be affected.
DONE at Canberra on this thirteenth day of December 2000 in two copies in the English and German languages, each text being equally authentic.
FOR AUSTRALIA: FOR THE FEDERAL REPUBLIC OF GERMANY:
JOCELYN NEWMAN Dr HORST BÄCHMANN and WALTER RIESTER
[Signatures omitted]
Notes
Note: 1. These Regulations amend Act No. 173, 1999, as amended by Act Nos. 45, 94 and 138, 2000; Statutory Rules 2000 Nos. 104, 105 and 165; 2001 Nos. 215 and 245; 2002 Nos. 31 and 32.
Note: 2. Notified in the Commonwealth of Australia Gazette on 7 March 2002.