Social Security (International Agreements) Act 1999 Amendment Regulations 2003 (No. 1)
PART V
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AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF CHILE
The Government of Australia and the Government of the Republic of Chile (hereinafter “the Parties”),
Wishing to strengthen the existing friendly relations between the two countries, and resolved to cooperate in the field of social security and to eliminate double coverage for seconded workers; have agreed as follows:
PART 1
GENERAL PROVISIONS
ARTICLE 1
Definitions
In this Agreement, unless the context otherwise requires:
(a) "benefit" means,
in relation to a Party, any of the benefits, pensions or allowances listed in paragraph 1 of Article 2, and includes any amount, increase or supplement that is payable in addition to that benefit, pension or allowance to a person who is qualified for that amount, increase or supplement under the legislation of that Party but, for Australia, does not include any benefit, pension or allowance under the Australian law concerning superannuation specified in subparagraph 1(a)(ii) of Article 2;
(b) "Competent Authority" means,
in relation to Australia:
the Secretary of the Department responsible for the legislation 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 Commissioner of Taxation (who is responsible for the legislation in subparagraph 1(a)(ii) of Article 2) or an authorised representative of the Commissioner, and
in relation to the Republic of Chile:
the Minister of Labour and Social Security;
(c) "Competent Institution" means,
in relation to Australia:
the Institution or Agency which has the task of implementing the legislation in Article 2, and
in relation to the Republic of Chile:
the Institutions responsible for applying the legislation specified in Article 2;
(d) "legislation" means,
in relation to Australia:
the law specified in subparagraph 1(a)(i) of Article 2 except in relation to the application of Part 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 the Republic of Chile:
the laws, regulations and other provisions relating to benefits specified in subparagraph 1(b) of Article 2;
(e) "period of Australian working life residence" means, in relation to a person, the period defined as such under the legislation of Australia but does not include any period deemed pursuant to Article 15 to be a period in which that person was an Australian resident;
(f) "period of insurance" means, in relation to Chile, any period of contribution, as well as any other period considered as its equivalent by the Chilean legislation that forms the basis to acquire the right to a Chilean benefit;
(g) "superannuation" means a system under Australian law where by employers are required to make contributions to an approved fund in order to provide for the employee’s retirement, or at the death of this employee;
(h) "territory" means,
in relation to Australia:
Australia as defined in the legislation of Australia; and
in relation to the Republic of Chile:
the scope of application of the Political Constitution of the Republic of Chile;
(i) "entity" means a related entity of an employer for the purposes of Article 8, if the entity and the employer are members of the same wholly or majority owned group.
Unless the context otherwise requires, any term not defined in this Agreement has the meaning assigned to it in the applicable legislation.
ARTICLE 2
Legislative Scope
Subject to paragraph 2, this Agreement shall apply to the following legislation and to any legislation that subsequently amends, supplements, supersedes or replaces it:
(a) in relation to Australia:
(i) the Acts and regulations forming the social security law in so far as the law provides for, applies to or affects the following benefits:
A) age pension; and
B) disability support pension for the severely disabled;
(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);
and
(b) in relation to the Republic of Chile, the legislation that governs:
(i) the Sistema de Pensiones for old-age, invalidity and survivors which is based on private individuals' self‑financing;
(ii) the old-age, invalidity and survivors' pension schemes which are administered by the Instituto de Normalización Previsional; and
(iii) for the purpose provided in Article 21, the health care benefits regime.
This Agreement shall apply to laws or regulations which extend the existing legislation to other categories of beneficiaries only if both Parties so agree in a Protocol to this Agreement.
Notwithstanding the provisions of paragraph 1, the legislation of Australia and of the Republic of Chile shall not include treaties or other international agreements concluded between it and a third State.
ARTICLE 3
Personal Scope
This Agreement shall apply to any person who:
(a) is or has been an Australian resident or a resident of the Republic of Chile;
(b) is or has been subject to the legislation of the Republic of Chile; or
(c) derives his or her rights from persons described above.
ARTICLE 4
Equality of Treatment
Subject to this Agreement and unless otherwise provided, 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 social security law of Australia or the legislation of Chile or by virtue of this Agreement.
PART II
PROVISIONS RELATING TO APPLICABLE LEGISLATION
The purpose of this part is to ensure that employers and employees who are subject to the legislation of the Republic of Chile or Australia do not have a double liability under the legislation of the Republic of Chile and Australia, in respect of the same work of an employee.
ARTICLE 5
Application of the Part
This Part only applies if an employee and/or the employer of the employee would, apart from this Part, be subject to the legislation of both Parties in respect of work of the employee or remuneration paid for the work.
ARTICLE 6
General Rule
Unless otherwise provided in Articles 7, 8, 9 or 10 if an employee works in the territory of one Party, the employer of the employee and the employee shall in respect of the work and the remuneration paid for the work be subject only to the legislation of that Party.
ARTICLE 7
Diplomatic and Consular Relations
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.
ARTICLE 8
Workers Sent from One Territory to the Other
If an employee:
(a) is covered by the legislation of one Party (‘the first Party’);
(b) was sent, whether before, on or after the commencement of this Part, by an employer who is subject to the legislation of the first Party to work in the territory of the other Party (‘the second Party’);
(c) is working in the territory of the second Party in the employment of the employer or a related entity of that employer;
(d) a period of 4 years from the time the employee was sent to work in the territory of the second Party has not elapsed; and
(e) is not working permanently in the territory of the second Party;
the employer of the employee and employee shall be subject only to the legislation of the first Party in respect of the work performed after commencement of this Agreement and the remuneration paid for that work. This is also applicable to an entity.
The competent authorities may by agreement in writing extend the period of 4 years referred to in sub-paragraph 1(d) of this Article for any employee by up to 2 years.
ARTICLE 9
Workers in the Service of the Government
If an employee:
(a) is covered by the legislation of one Party (‘the first Party’);
(b) was sent, whether before, on or after the commencement of this Part, by the Government of the first Party to work in the territory of the other Party (‘the second Party’);
(c) is working in the territory of the second Party in the employment of the Government of the first Party; and
(d) is not working permanently in the territory of the second Party;
the employer of the employee and employee shall be subject only to the legislation of the first Party in respect of the work performed after commencement of this Agreement and the remuneration paid for that work. For the purposes of this Article, “Government” includes in relation to Australia a political subdivision or local authority of Australia.
ARTICLE 10
Workers on Ships and Aircraft
If an employee is working in the employment of an employer on a ship or aircraft in international traffic, the employer and employee shall in respect of the employment and the remuneration paid for that employment be subject only to the legislation of the Party of which the employee is resident.
For the purposes of this Article the Competent Authorities will be able to by means of written agreement establish that an employee on a ship or aircraft in international traffic will be subject to the legislation of a specified Party.
ARTICLE 11
Exception Agreements
The Competent Authorities from both Parties will be able to establish, by common accord:
(a) exceptions to what is stated in Articles 5 through to 10 in favour of determined persons or groups of people, and
(b) which Party’s legislation will apply to those persons or groups of people.
PART III
PROVISIONS RELATING TO BENEFITS
ARTICLE 12
Export and Payment of Benefits
Benefits of a Party which are payable by virtue of this Agreement shall be payable in the territory of the other Party.
Where the legislation of a Party provides that a benefit is payable outside the territory of that Party, then that benefit, when payable by virtue of this Agreement, is also payable outside the territory of both Parties.
If in the future, the legislation of Australia provides for a time limit on the continued qualification for an Australian benefit for a person who leaves Australia, then the same time limit shall apply to that benefit for a person who leaves the Republic of Chile.
Benefits of a Party shall be payable by that Party on request to the beneficiary in his or her country of residence.
If a Party imposes legal or administrative restrictions on the transfer of currency outside of its territory, that Party shall implement measures as soon as practicable to guarantee payment and delivery of benefits payable under the legislation of that Party or by virtue of this Agreement. The measures shall operate retrospectively to the time when the restrictions were imposed.
Where a Party has imposed legal or administrative restrictions on the transfer of its currency outside of its territory as mentioned in paragraph 5, it shall inform the other Party of those restrictions within one calendar month of their imposition and shall implement the measures described in that paragraph within 6 months of the imposition of the restrictions. A failure to comply with either requirement may be treated by the other Party as a material breach of the Agreement for the purposes of Article 60 of the Vienna Convention on the Law of Treaties.
Benefits paid by a Party outside its territory shall be paid in the currency of the United States of America or another internationally convertible currency.
A benefit payable by a Party by virtue of this Agreement or under its legislation shall be paid by that Party without deduction of administrative fees by the Government or the corresponding Competent Institution for processing and paying that benefit, whether the person qualifying for the benefit is in the territory of the other Party or in a third country.
In relation to Australia, the provisions of this Article shall not apply to rent assistance, pharmaceutical allowance or any other allowance payable only within Australia or during a temporary period of absence, according to the social security laws of Australia.
ARTICLE 13
Medical Examinations
For the purposes of assessing a person's degree of disability or the person's ability to work where this is relevant for a claim for a benefit or for continued payment of a benefit, the Competent Institution of a Party shall apply the legislation of that Party.
To assist in the assessment referred to in paragraph 1, the Competent Institution of the Party in whose territory the person resides shall, at the request of the Competent Institution of the other Party forward to the latter free of charge any existing relevant medical reports and documents that it may have available.
In the case that the Competent Institution in Australia deems it necessary that additional medical examinations be undertaken in Chile, which is exclusively in Australia’s interest, these will be financed and repaid by that institution.
On the other hand, if the Chilean Competent Institution deems it necessary that additional medical examinations intended for its sole use be performed in Australia, they shall be financed in accordance with Chilean laws. When the examinations relate to workers affiliated with the Sistema de Capitalización Individual, the Chilean Competent Institution shall reimburse the full cost of the examinations to the Australian Competent Institution and shall charge the interested person for the percentage for which he or she is responsible. Nevertheless, the Chilean Competent Institution may deduct the cost for which the interested person is responsible from any pensions owed, or from the balance in the person's individual capitalization account.
If the new examinations are requested in connection with an appeal filed against a disability decision issued in Chile, the cost of these examinations shall be financed in the manner described in the preceding paragraph; however, if the appeal has been filed by a Chilean Competent Institution or insurance company such costs shall be financed by the appellant.
PART IV
AUSTRALIAN BENEFITS
ARTICLE 14
Residence or presence in the Republic of Chile or a Third State
Where a person would be qualified under the legislation of Australia or by virtue of this Agreement for a benefit except for not being an Australian resident and in Australia on the day on which the claim is lodged, but:
(a) is an Australian resident or a resident of the Republic of Chile or a third State with which Australia has concluded an agreement on social security which includes provision for co-operation in the assessment and determination of claims for benefits and which includes that category of benefit; and
(b) is in Australia, or the territory of the Republic of Chile 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 purposes of lodging that claim, to be an Australian resident and in Australia on that day.
ARTICLE 15
Totalisation for 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 legislation of Australia for that benefit; and
(b) a period of Australian working life residence equal to or greater than the period referred to in paragraph 3; and
(c) a period of insurance in Chile;
then, for the purposes of the claim for that Australian benefit, that period of insurance in Chile shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia, to be a period in which that person was an Australian resident.
For the purpose of this Article, where a person has a period as an Australian resident and a period of insurance in Chile, any period of overlap 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 purpose of an Australian benefit claimed by a person residing 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 claimed by an Australian resident, no minimum period shall be required.
ARTICLE 16
Calculation of Australian Benefits
Subject to paragraph 2, where an Australian benefit is payable by virtue of this Agreement to a person outside Australia, the rate of that benefit shall be determined by:
(a) calculating that person’s income according to the legislation of Australia, including, subject to the provisions of Article 17, any Chilean benefit which that person or the partner of that person is entitled to receive, if applicable;
(b) applying to the maximum rate of Australian benefit the relevant rate calculator set out in the legislation of Australia, using as the person’s income the amount calculated under sub-paragraph (a); and
(c) proportionalising, if applicable, the amount of benefit calculated under sub-paragraph (b) according to the person’s period of Australian working life residence, by multiplying that amount by the person’s residence factor as specified in the legislation of Australia.
The provisions of paragraph 1 will continue to apply for 26 weeks when a person temporarily comes to Australia.
Subject to the provisions of paragraphs 4 and 5, where an Australian benefit is payable by virtue of this Agreement to a person who is in Australia, and who does not have 10 years Australian residence, the rate of that benefit shall be determined by:
(a) subject to the provisions of Article 17, deducting the amount of the Chilean benefit which that person is entitled to receive from the maximum rate of Australian benefit;
(b) calculating that person's income according to the legislation of Australia but disregarding in that calculation the Chilean benefit which that person or the partner of that person is entitled to receive, if applicable; and
(c) applying to the remaining benefit obtained under subparagraph (a) the relevant rate calculator set out in the legislation of Australia, using as the person's income the amount calculated under subparagraph (b).
The provisions of paragraph 3 will continue to apply for 26 weeks when a person temporarily leaves Australia.
Where a member of a couple is, or both that person and his or her partner are in receipt of a Chilean benefit or benefits, each of them shall be deemed, for the purpose of paragraphs 1 and 3 and for the legislation of Australia, to be in receipt of half of either the amount of that benefit or the total of both those benefits as the case may be.
For the purposes of paragraph 1 a benefit, in relation to Australia, does not include rent assistance, pharmaceutical allowance or any other allowance payable only within Australia or during a temporary period of absence according to the social security laws of Australia.
ARTICLE 17
Exclusion of Chile’s Mercy Payments from the Australian income test
Where a person receives or is entitled to receive a benefit under the social security laws of Australia:
(a) monthly payments made under Chilean Law number 19.123 (mercy payments); and
(b) periodical monthly mercy payments made under Chilean Law number 19.234 and its amendments,
shall not be included for the purpose of assessing the rate of that Australian benefit.
For the purposes of this Article only, the term benefit shall include all social security payments under the social security laws of Australia.
PART V
CHILEAN BENEFITS
ARTICLE 18
Totalisation for Chilean Benefits
When under Chilean legislation the acquisition, maintenance or re-establishment of entitlement to old age, invalidity or survivors' benefits requires the completion of certain periods of insurance, a period of Australian working life residence shall be deemed where necessary to be a period of insurance completed in the Republic of Chile.
Where a period of insurance completed in the Republic of Chile coincides with a period of Australian working life residence, such a period shall be taken into account once only as a period of insurance.
When it is not possible to determine the time when specific periods of insurance were completed under Chilean legislation, it shall be presumed that such periods do not coincide with periods of Australian working life residence.
ARTICLE 19
Old-Age, Invalidity and Survivors’ Pensions
The affiliates to a Managed Pension Fund shall finance their pensions in the Republic of Chile with the balance accumulated in their individual capitalisation account. In case such a balance is insufficient to finance a pension at an amount which is at least equal to that of the minimum pension guaranteed by the State, the affiliate has the right, in accordance with Article 18, to aggregate his/her periods of insurance in order to qualify for the minimum old age or invalidity pension. Survivors' pension claimants shall have the same right.
For the purposes of determining the fulfilment of the requirements as established in legal Chilean provisions to obtain anticipated pensions under the Sistema de Capitalización Individual, the affiliates who have obtained a pension according to Australian legislation shall be considered as pensioners of the pension system as indicated in paragraph 4.
Persons affiliated to the Sistema de Capitalización Individual in the Republic of Chile may pay voluntary contributions to that scheme, while self-employed during any period of Australian working life residence. Persons who choose to avail themselves of this option shall be exempted from the obligation to contribute to the health care system of the Republic of Chile.
Likewise, the affiliates of the pension system administered by the Instituto de Normalización Previsional shall have the right to aggregate periods of insurance, in accordance with the provisions of Article 18, to qualify for the benefits provided for in the legislation applicable to them.
To qualify for pensions in accordance with the legislation regulating social security schemes managed by the Instituto de Normalización Previsional, persons who receive an Australian pension or who have Australian working life residence in accordance with the social security law of Australia, will be considered as current contributors to the relevant social security scheme in Chile.
If a person has insurance periods under Chilean legislation of less than one year, and if, by taking into account only such periods, he or she does not qualify for any benefits under that legislation, the Chilean Competent Institution shall not be obliged to grant any benefits to that person with respect to that period in accordance with this Agreement.
ARTICLE 20
Calculation of Chilean Benefits
In the cases envisaged in paragraphs 1 and 4 of the preceding Article, the Competent Institution shall determine the right to the Chilean benefit as if all the periods of insurance or periods of Australian working life residence, as the case may be, had been completed under its own legislation and, for the purpose of payment of the benefit, it shall calculate the portion payable by it proportionally between the periods of insurance completed exclusively under such legislation and the total years required under the relevant Chilean legislation.
The determination of the right to minimum pensions paid by the Instituto de Normalización Previsional will be done in the manner provided in the previous paragraph and, the rate of the payment shall be calculated on the basis of the existing proportion between the periods of insurance completed exclusively in Chile and the total of the periods of insurance in Chile and periods of Australian working life residence. If the sum of the periods mentioned are greater than the period required by Chilean legislation to acquire the right to a full pension, such excess periods will not be taken into account for this calculation.
ARTICLE 21
Health Care Benefits
Persons who are receiving a pension according to Australian legislation or by virtue of this Agreement and who reside in the Republic of Chile shall have the right to register with the Chilean Health Care Insurance system under the same conditions as Chilean pensioners.
PART VI
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 22
Lodgement of Documents
A claim, notice or appeal concerning a benefit, whether payable by virtue of this Agreement or according to the social security law of Australia or the legislation of Chile, may be lodged in the territory of the other Party, in accordance with the Administrative Arrangements made pursuant to Article 25, at any time after the Agreement has come into force.
For the purpose of determining the right to a benefit, the date on which a claim, notice or appeal referred to in paragraph 1, is lodged with the Competent Authority, Competent Institution or liaison body of one Party, shall be considered as the date of lodgement of that document with the Competent Authority, Competent Institution or liaison body of the other Party. The Competent Institution to which a claim, notice or appeal is lodged shall refer it without delay to the Competent Institution of the other Party.
The reference in this Article to an appeal is an appeal that may be made to an administrative body that has been established by, or for the purposes of, the legislation of either Party.
Any exemption granted in the territory of one of the Parties from stamp duty, notarial or registration fees in respect of certificates and documents required to be submitted to the Competent Authorities, Competent Institutions or liaison bodies in the same territory shall also apply to the certificates and documents which, for the purpose of this Agreement, have to be submitted to the Competent Authorities, Competent Institutions or liaison bodies of the other Party. Documents and certificates required to be produced for the purpose of this Agreement shall be exempt from authentication by diplomatic and consular authorities.
ARTICLE 23
Recovery of Overpayments
Where:
(a) an amount of arrears of benefit is paid or payable by the Republic of Chile; and
(b) for all or part of the relevant period, Australia has paid to that person a benefit under its legislation; and
(c) the amount of the benefit paid by Australia would have been reduced had the benefit paid or payable by the Republic of Chile 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.
For Australia, a reference in paragraph 1 to a benefit means a pension, benefit or allowance payable under the social security laws of Australia.
ARTICLE 24
Exchange of Information and Mutual Assistance
The Competent Authorities, Competent Institutions and liaison bodies responsible for the application of this Agreement, to the extent permitted by the legislation they administer, shall:
(a) subject to paragraphs 3 and 4, communicate to each other any information necessary for the application of this Agreement;
(b) lend their good offices and furnish assistance to one another, including the communication to each other of any necessary information, with regard to the determination or payment of any benefit under this Agreement or under the social security laws of either Party as if the matter involved the application of their own legislation;
(c) communicate to each other, as soon as possible, all information about the measures taken by them for the application of the Agreement;
(d) at the request of one to another, assist each other in relation to agreements on social security entered into by either of the Parties with third States, only to the extent and in the circumstances specified in the Administrative Arrangement made in accordance with Article 25; and
(e) advise each other of any laws which amend, supplement, supersede or replace their respective legislations and which are relevant to the operation of this Agreement promptly after those laws are made.
The assistance referred to in paragraph 1 shall be provided free of charge, subject to any Administrative Arrangements made in accordance with Article 25.
Unless disclosure is required under the legislation of a Party, any information about an individual which is transmitted in accordance with this Agreement to a Competent Authority, Competent Institution or liaison body of that Party is confidential and shall only be used for purposes of implementing this Agreement and the social security laws of either Party. Where disclosure to a third party is required under the legislation or other laws of a Party, the first Party may withhold that information from the other Party.
In no case shall the provisions of this Article be construed so as to impose on the Competent Authority, Competent Institution or liaison body of a Party the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or the other Party; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Party.
Communications between Competent Authorities, Competent Institutions, liaison bodies and persons to whom this Agreement applies may be made in any of the official languages of the Parties.
The diplomatic and consular authorities of the Parties may represent, without a special Government order, their own nationals to the Competent Authorities, Competent Institutions and liaison bodies in matters of social security of the other Party, at the express request of the interested person only to the effect of facilitating any procedure or the granting of a benefit, not including the payment to such an authority. In regard to the Sistema de Capitalización Individual, no representation will be accepted on the part of the authority to the effect that, or in regard to, the choice of the type of pension for which the member may opt.
ARTICLE 25
Administrative Arrangements
The Competent Authorities of the Parties shall make whatever Administrative Arrangements are necessary in order to implement this Agreement.
The Competent Authorities shall appoint liaison bodies in the Administrative Arrangement.
ARTICLE 26
Recognition of Prior Periods and Events
In determining the qualification for a benefit of a person or the amount of benefit payable to a person, by virtue of this Agreement, any events or facts and any period:
(a) as an Australian resident;
(b) of Australian working life residence; and
(c) of insurance
shall, subject to this Agreement, be taken into account in so far as those periods, events or facts are applicable in regard to that person regardless of when they occurred or were accumulated.
No provision of this Agreement shall confer on a person any right to receive payment of a benefit in relation to a period before the date on which this Agreement comes into force.
ARTICLE 27
Resolution of Difficulties
The Competent Authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.
ARTICLE 28
Review of Agreement
Where a Party requests the other to meet to review this Agreement the Parties shall meet for that purpose no later than 6 months after that request was made and, unless the Parties otherwise agree, their meeting shall be held in the territory of the Party to which the request was made.
ARTICLE 29
Entry into Force and Termination
This Agreement shall enter into force on the first day of the third month following the month in which the last note is exchanged by the Parties through the diplomatic channel notifying each other that all constitutional, legislative or other matters as are necessary to give effect to this Agreement have been finalised.
Subject to paragraph 3, this Agreement shall remain in force indefinitely or until the expiration of 12 months from the date on which either Party receives from the other a note through the diplomatic channel indicating the intention of the other Party to terminate this Agreement.
In the event that this Agreement is terminated in accordance with paragraph 2, the Agreement shall continue to have effect in relation to all persons who:
(a) at the date of termination, are in receipt of its 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, its benefits; by virtue of this Agreement or
(c) immediately before the date of termination are subject only to the legislation of one Party by virtue of Article 8 or 9 of Part II of the Agreement provided that the person continues to satisfy the criteria of that Article.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Canberra this twenty fifth day of March two thousand and three in the English and Spanish languages, each text being equally authentic.
FOR AUSTRALIA
FOR THE REPUBLIC OF CHILE
Senator the Honourable Amanda Vanstone
His Excellency Cristobal Valdez
Minister for Family and Community Services
Ambassador
Schedule 16 — Croatia
Note: See section 5.
AGREEMENT
BETWEEN
AUSTRALIA
AND
THE REPUBLIC OF CROATIA
ON SOCIAL SECURITY
Australia and the Republic of Croatia (hereinafter “the Parties”),
Wishing to strengthen the existing friendly relations between the two countries, and
Resolved to cooperate in the field of social security;
Have agreed as follows:
PART I - GENERAL PROVISIONS
ARTICLE 1
Definitions
In this Agreement the terms below have the following meanings:
(a) "Croatia" means the Republic of Croatia;
(b) "benefit" means, in relation to a Party, any of the benefits, pensions or allowances listed in paragraph 1 of Article 2, and includes any amount, increase or supplement that is payable in addition to that benefit, pension or allowance to a person who is qualified for that 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;
(c) "Competent Authority" means,
in relation to Australia:
the Secretary of the Department responsible for the application of the legislation in subparagraph 1(a)(i) of Article 2 of this Agreement except in relation to the application of Part III of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the Commissioner of Taxation or an authorised representative of the Commissioner, and
in relation to Croatia:
the Ministry of Labour and Social Welfare;
(d) "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 Croatia:
the Croatian Pension Insurance Institute;
(e) "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 III of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the law specified in subparagraph 1(a)(ii) of Article 2; and
in relation to Croatia:
laws, regulations and other provisions relating to benefits specified in sub-paragraph 1(b) of Article 2;
(f) "period of Australian working life residence" means, in relation to a person, the period defined as such under the legislation of Australia but does not include any period deemed pursuant to Article 13 to be a period in which that person was an Australian resident;
(g) "period of insurance" means any period of contribution and any other period taken into account under Croatian legislation;
(h) "territory" means,
in relation to Australia:
Australia as defined in the legislation of Australia; and
in relation to Croatia:
the territory of the Republic of Croatia;
(i) “employee” means, in relation to Croatia, a worker, as defined by the legislation stated in paragraph (1)(b) of Article 2, and by the Croatian labour laws.
Unless the context otherwise requires, any term not defined in this Agreement has the meaning assigned to it in the applicable legislation.
ARTICLE 2
Legislative Scope
Subject to paragraph 2, this Agreement shall apply to the legislation effective at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, supersedes or replaces it:
(a) in relation to Australia:
(i) the Acts and regulations forming the social security law in so far as the law provides for, applies to or affects the following benefits:
- age pension;
- disability support pension for the severely disabled;
(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 III of this Agreement;
and
(b) in relation to Croatia, the legislation that governs Pension Insurance, including:
(i) old-age pension;
(ii) anticipatory pension;
(iii) disability pension;
(iv) survivor’s pension (widows, widowers, children and other family members entitled to this pension); and
all other benefits covered under the Pension Insurance legislation.
This Agreement shall apply to legislation that extends the existing legislation to other categories of beneficiaries if the Competent Authority of the Party concerned gives notice to that effect within six months from the official publication of that legislation, and if the Competent Authority of the other Party does not express its disapproval within six months from the receipt of the notice.
For the purposes of reciprocating Croatian survivor’s pension, when payable outside Australia by virtue of this Agreement, Australian age and disability support pension shall include additional child amounts for dependent children, if applicable.
Notwithstanding the provisions of paragraph 1, the legislation of the Parties shall not include treaties or other international agreements concluded between either of them and a third State, except as otherwise provided in 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 Croatia.
ARTICLE 4
Equality Of Treatment
Subject to this Agreement, all persons to whom this Agreement applies shall be treated equally by a Party as its own citizens in regard to rights and obligations regarding eligibility for and payment of benefits which arise whether directly under the legislation of that Party or by virtue of this Agreement.
PART II – COMMON PROVISIONS RELATING TO BENEFITS
ARTICLE 5
Export of Benefits
The benefits that are payable by one Party on the basis of the legislation of that Party or by virtue of this Agreement shall be payable in the territory of the other Party.
Where there is a time limit on the continued qualification for an Australian benefit for a person who leaves Australia, then the same time limit shall apply to that benefit for a person who leaves Croatia.
Where the legislation of a Party provides that a benefit is payable outside the territory of that Party, then that benefit, when payable by virtue of this Agreement, is also payable outside the territories of both Parties.
If a Party imposes legal or administrative restrictions on the transfer of currency outside of its territory, that Party shall implement measures as soon as practicable to guarantee the payment and delivery of benefits payable under the legislation of that Party or by virtue of this Agreement. The measures shall operate retrospectively to the time when the restrictions were imposed.
While the measures in paragraph 4 are being implemented, the Party not imposing the restrictions set out in paragraph 4 may impose restrictions on the payment of its benefits paid under the Agreement in the territory of the other Party, until the other Party has lifted all such restrictions. On the lifting of the restrictions by the other Party and the payment and delivery of arrears by that other Party then the first Party shall also pay arrears of its benefits in relation to the entire time during which the first Party's restrictions were imposed.
Where a Party has imposed legal or administrative restrictions on the transfer of its currency outside of its territory as mentioned in paragraph 5, it shall inform the other Party of those restrictions within one calendar month of their imposition and shall implement the measures described in that paragraph within 3 months of the imposition of the restrictions. A failure to comply with either requirement may be treated by the other Party as a material breach of the Agreement for the purposes of Article 60 of the Vienna Convention on the Law of Treaties.
Benefits paid by a Party outside its territory shall be paid in an internationally convertible currency.
A benefit payable by a Party by virtue of this Agreement or under its legislation shall be paid by that Party without deduction of administrative fees and charges by the government or the corresponding Competent Institution for processing and paying that benefit, whether the person qualifying for the benefit is in the territory of the other Party or in a third country.
For Australia, the provisions of this Article shall not apply to rent assistance, pharmaceutical allowance or any other allowance that is not payable indefinitely outside Australia.
ARTICLE 6
Medical Examinations
For the purposes of assessing a person's degree of disability or the person's ability to work where this is relevant for a claim for a benefit or for continued payment of a benefit, the Competent Institution of a Party shall apply the legislation of that Party.
To assist in the assessment referred to in paragraph 1, the Competent Institution of the Party in whose territory the person resides shall, at the request of the Competent Institution of the other Party forward to the latter free of charge any existing relevant medical reports and documents that it may have available.
PART III
PROVISIONS FOR AVOIDING DOUBLE COVERAGE
ARTICLE 7
Purpose of Part
The purpose of this Part is to ensure that employers and employees who are subject to the legislation of Croatia or Australia do not have a double liability under the legislation of Croatia and Australia, in respect of the same work of an employee.
ARTICLE 8
Application of Part
This Part only applies if an employee and/or the employer of the employee would, apart from this Part, be subject to the legislation of both Parties in respect of work of the employee or remuneration paid for the work.
ARTICLE 9
Diplomatic and Consular Relations
This Agreement shall not affect the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961, or the Vienna Convention on Consular Relations of 24 April 1963.
ARTICLE 10
Application of Legislation
Unless otherwise provided in paragraphs 2 or 3, if an employee works in the territory of one Party, the employer of the employee and the employee shall in respect of the work and the remuneration paid for the work be subject only to the legislation of that Party.
If an employee:
(a) is covered by the legislation of one Party; and
(b) was sent, whether before, on or after the entry into force of this Agreement, by an employer who is subject to the legislation of that Party to work in the territory of the other Party; and
(c) is working in the territory of the other Party in the employment of the employer or a related entity of that employer; and
(d) was sent to work in the territory of the other Party and a period of 4 years has not elapsed from that time; and
(e) is not working permanently in the territory of the other Party;
the employer and employee shall be subject only to the legislation of the Party from which the employee was sent in respect of the work and the remuneration paid for the work. 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.
If the employer for the purposes of paragraph 2 of this Article is, in relation to Australia, a Governmental body, a political subdivision or local authority, or in relation to Croatia, a Governmental body, then the time limit specified in subparagraph 2(d) shall not apply.
ARTICLE 11
Exception Agreements
The Competent Authorities may for the purposes of this Part by agreement in writing:
(a) extend the period of 4 years referred to in subparagraph 2(d) of Article 10 for any employee; or
(b) provide that an employee is taken to work in the territory of a particular Party or to work on a ship or aircraft in international traffic under the legislation of a particular Party and is covered only by the legislation of that Party.
Any agreement made under paragraph 1 may apply to:
(a) a class of employees; and/or
(b) particular work or particular type of work (including work that has not occurred at the time the agreement is made).
PART IV – PROVISIONS RELATING TO AUSTRALIAN BENEFITS
ARTICLE 12
Residence or presence in Croatia or a Third State
Where a person would be qualified under the legislation of Australia or by virtue of this Agreement for a benefit except for not being an Australian resident and in Australia on the day on which the claim is lodged, but:
(a) is an Australian resident or a resident of Croatia (or a third State with which Australia has concluded an agreement on social security which includes provision for co-operation in the assessment and determination of claims for benefits and which includes that category of benefit); and
(b) is in Australia, or the territory of Croatia 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 day.
ARTICLE 13
Totalisation for 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 legislation of Australia for that benefit; and
(b) a period of Australian working life residence equal to or greater than the period referred to in paragraph 3; and
(c) a period of insurance in Croatia;
then, for the purposes of the claim for that Australian benefit, that period of insurance shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia, to be a period in which that person was an Australian resident.
For the purpose of this Article, where a person has a period as an Australian resident and a period of insurance in Croatia, any period of overlap 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 purpose of an Australian benefit claimed by a person residing outside Australia, the minimum period required shall be 12 months, of which at least six months must be continuous; and
(b) for the purpose of an Australian benefit claimed by an Australian resident, no minimum period shall be required.
ARTICLE 14
Calculation of Australian Benefits
Subject to paragraph 2, where an Australian benefit is payable by virtue of this Agreement to a person outside Australia, the rate of that benefit shall be determined according to the legislation of Australia.
The provisions in paragraph 1 shall continue to apply for 26 weeks where a person comes temporarily to Australia.
Subject to the provisions of paragraph 4 and 5, where an Australian benefit is granted by virtue of this Agreement to a person who is in Australia, the rate of that benefit shall be determined by:
(a) deducting the amount of the Croatian benefit which that person is entitled to receive from the maximum rate of Australian benefit;
(b) calculating that person's income according to the legislation of Australia but disregarding in that calculation the Croatian benefit to which that person or the partner of that person is entitled to receive, if applicable; and
(c) applying to the remaining benefit obtained under subparagraph (a) the relevant rate calculator set out in the legislation of Australia, using as the person's income the amount calculated under subparagraph (b).
The provisions in paragraph 3 shall continue to apply for 26 weeks where a person temporarily leaves Australia.
Where a member of a couple is, or both that person and his or her partner are entitled to a Croatian benefit or benefits, each of them shall be deemed, for the purpose of paragraph 3 and for the legislation of Australia, to be in receipt of half of either the amount of that benefit or the total of both those benefits as the case may be.
PART V
PROVISIONS RELATING TO CROATIAN BENEFITS
ARTICLE 15
Totalisation for Croatian Benefits
If a person does not fulfil the requirements for pension solely on the basis of completed periods of insurance, the entitlement to a benefit shall be established on the basis of totalising the periods of insurance and Australian working life residence provided these periods do not overlap.
If a person qualifies for a benefit under Croatian legislation without the need for totalisation of the periods completed in the territories of both Parties, the Croatian Competent Institution shall grant the benefit according to its own legislation.
If the period of insurance amounts to less than 12 months no benefit shall be granted. This does not apply if there is entitlement to a benefit only on the basis of that lesser period of insurance.
Notwithstanding the provision of paragraph 4 of Article 2, where based on the provisions of paragraph 1 of this Article a person does not satisfy conditions for the benefit, the competent institution of Croatia shall take into account periods of insurance or periods of residence completed by Croatian nationals in a third State to which Croatia is bound by an agreement on social security which provides for the totalisation of periods of insurance or residence, respectively.
ARTICLE 16
Calculation of Croatian Benefits
If a person qualifies for a benefit under Croatian legislation only by the application of the totalisation provisions contained in paragraph 1 of Article 15, the Croatian Competent Institution shall calculate the amount of the benefit according to the Croatian legislation.
If the amount of the benefit under Croatian legislation cannot be calculated according to paragraph 1 of this Article, the Croatian Competent Institution shall calculate it in the following way:
(a) it shall first calculate a theoretical amount of a benefit which would be payable if all totalised periods (being periods of insurance and periods of Australian working life residence) were completed under Croatian legislation;
(b) on the basis of this theoretical amount, it shall then calculate the actual amount of the benefit which is payable according to the ratio of the period of insurance and the totalised periods.
Paragraph 1 of this Article shall not apply if the amount of Croatian pension calculated under that paragraph is less than the amount determined in accordance with paragraph 2 of this Article.
PART VI
MISCELLANEOUS PROVISIONS
ARTICLE 17
Lodgement of Documents
A claim, notice or appeal concerning a benefit, whether payable by virtue of this Agreement or otherwise, may be lodged in the territory of the other Party in accordance with the Administrative Arrangement made pursuant to Article 20 at any time after the Agreement has come into force.
For the purpose of determining the right to a benefit, the date on which a claim, notice or appeal referred to in paragraph 1 is lodged with the Competent Institution of one Party shall be considered as the date of lodgement of that document with the Competent Institution of the other Party. The Competent Institution to which a claim, notice or appeal is lodged shall refer it without delay to the Competent Institution of the other Party.
The reference in this Article to an appeal is an appeal that may be made to an administrative body or a corresponding body of either Party that has been established by, or for the purposes of, the legislation of each Party.
Any exemption granted in the territory of one of the Parties from payment of taxes or fees in respect of certificates and documents required to be submitted to the Competent Authorities and Competent Institutions in the same territory shall also apply to the certificates and documents which, for the purpose of this Agreement, have to be submitted to the Competent Authorities or Competent Institutions of the other Party. Documents and certificates required to be produced for the purpose of this Agreement shall be exempt from authentication by diplomatic and consular authorities.
ARTICLE 18
Recovery of Overpayments
Where:
(a) an amount of arrears of benefit is paid or payable to a person by the Competent Institution of one Party whether by virtue of this Agreement or under the legislation of that Party; and
(b) for all or part of the relevant period, the other Party has paid to that person a benefit under its legislation; and
(c) the amount of the benefit paid by that other Party would have been reduced had the benefit paid or payable by the Competent Institution of the first Party been paid during that period;
then
(d) the amount that would not have been paid by the other Party had the benefit described in subparagraph (a) been paid on a periodical basis throughout that past period, shall be a debt due by that person to the other Party and may be recovered by that Party.
Australia may recover all or part of that debt referred to in paragraph 1 under the provisions of the Acts forming the social security laws of Australia.
Where the Competent Institution of one Party has not yet paid the benefit described in subparagraph 1(a) to that person:
(a) that Competent Institution shall, at the request of the Competent Institution of the other Party, pay the amount of the benefit necessary to meet the debt described in paragraph 1 to the Competent Institution of that Party and shall pay any excess to that person; and
(b) any shortfall may be recovered by the Competent Institution of the other Party.
A reference in paragraph 1 to a benefit means, for Australia, a pension, benefit or allowance payable under the social security laws of Australia and, for Croatia, a pension, benefit or allowance payable under the Pension Insurance legislation.
ARTICLE 19
Exchange of Information and Mutual Assistance
The Competent Authorities and Competent Institutions responsible for the application of this Agreement shall to the extent permitted by the legislation they administer:
(a) subject to paragraphs 3 and 4, communicate to each other any information necessary for the application of this Agreement;
(b) lend their good offices and furnish assistance to one another (including the communication to each other of any necessary information) with regard to the determination or payment of any benefit under this Agreement or under the social security laws of either Party as if the matter involved the application of their own legislation;
(c) communicate to each other, as soon as possible, all information about the measures taken by them for the application of the Agreement;
(d) at the request of one to another, assist each other in relation to the implementation of agreements on social security entered into by either of the Parties with third States, to the extent and in the circumstances specified in the Administrative Arrangement made in accordance with Article 20; and
(e) advise each other of any laws which amend, supplement, supersede or replace their respective legislations and which are relevant to the operation of this Agreement promptly after those laws are made.
The assistance referred to in paragraph 1 shall be provided free of charge, subject to any Administrative Arrangement made in accordance with Article 20.
Unless disclosure is required under the legislation of a Party, any information about an individual which is transmitted in accordance with this Agreement to a Competent Authority or Competent Institution of that Party is confidential and shall only be used for purposes of implementing this Agreement and the social security laws of either Party.
Notwithstanding any laws or administrative practices of a Party, no personal data which is received by that Party from the other Party shall be transferred or disclosed to any other country or to any other organisation within that other country without the prior written consent of that other Party.
In no case shall the provisions of paragraphs 1 and 3 be construed so as to impose on the Competent Authority or Institution of a Party the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or the other Party; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Party.
Communications between Competent Authorities, Competent Institutions and persons to whom this Agreement applies may be made in any of the official languages of the Parties.
ARTICLE 20
Administrative Arrangement
The Competent Authorities of the Parties shall, by means of an Administrative Arrangement, make whatever arrangements are necessary in order to implement this Agreement.
The Competent Authorities shall appoint liaison bodies in the Administrative Arrangement.
ARTICLE 21
Recognition of Prior Periods and Events
In determining the qualification for a benefit of a person or the amount of benefit payable to a person, by virtue of this Agreement, any events or facts and any period:
(a) as an Australian resident;
(b) of Australian working life residence; and
(c) of insurance
shall, subject to this Agreement, be taken into account in so far as those periods, events or facts are applicable in regard to that person regardless of when they occurred or were accumulated.
No provision of this Agreement shall confer on a person any right to receive payment of a benefit in relation to a period before the date on which this Agreement comes into force.
ARTICLE 22
Resolution of Difficulties
The Competent Authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.
ARTICLE 23
Review of Agreement
Where a Party requests the other to meet to review this Agreement the Parties shall meet for that purpose no later than 6 months after that request was made and, unless the Parties otherwise agree, their meeting shall be held in the territory of the Party to which the request was made.
PART VII
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 24
Entry into Force and Termination
This Agreement shall enter into force on the first day of the month following the month in which notes are exchanged by the Parties through the diplomatic channel notifying each other that all matters as are necessary to give effect to this Agreement have been accomplished.
This Agreement shall remain in force indefinitely or until the expiration of 12 months from the date on which either Party receives from the other a note through the diplomatic channel indicating the intention of the other Party to terminate this Agreement.
In the event that this Agreement is terminated in accordance with paragraph 2, the Agreement shall continue to have effect in relation to all persons who:
(a) at the date of termination, are in receipt of its benefits; or
(b) prior to the expiry of the period referred to in paragraph 2, have lodged claims for, and would be entitled to receive benefits;
by virtue of this Agreement or
(c) immediately before the date of termination, are subject only to the legislation of one Party as mentioned in and by virtue of paragraph 2 of Article 10 or Article 11, but only for so long as the Agreement would have continued to apply to the employee had the Agreement not been terminated.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in two original copies at ZAGREB this THIRTEENTH day of MAY TWO THOUSAND AND THREE in the English and the Croatian languages, both texts being equally authoritative.
FOR AUSTRALIA
FOR THE REPUBLIC OF CROATIA
Neil FrancisAustralian Ambassador to Croatia
Davorko VidovićMinister of Labour and Social Welfare
Schedule 17 — Slovenia
Note: See section 5.
AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SLOVENIA
The Government of Australia and the Government of the Republic of Slovenia (hereinafter “the Parties”),
Wishing to strengthen the existing friendly relations between the two countries, and resolved to cooperate in the field of social security; have agreed as follows:
GENERAL PROVISIONS
ARTICLE 1
Definitions
In this Agreement, unless the context otherwise requires;
(a) "Slovenia" means the Republic of Slovenia;
(b) "benefit" means, in relation to a Party, any of the benefits, pensions or allowances listed in paragraph 1 of Article 2, and includes any amount, increase or supplement that is payable in addition to that benefit, pension or allowance to a person who is qualified for that amount, increase or supplement under the legislation of that Party;
(c) "Competent Authority" means,
in relation to Australia:
the Secretary of the Commonwealth Department responsible for the legislation specified in subparagraph 1(a) of Article 2, and
in relation to Slovenia:
the Ministry of Labour, Family and Social Affairs;
(d) "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 Slovenia:
the Institute for Pension and Disability Insurance of Slovenia;
(e) "legislation" means, the laws and other regulations relating to benefits specified in paragraph 1 of Article 2;
(f) "period of Australian working life residence" means, in relation to a person, the period defined as such under 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;
(g) "period of insurance" means any period of contribution and any other period taken into account under Slovenian legislation; and
(h) "territory" means,
in relation to Australia:
Australia as defined in the legislation of Australia; and
in relation to Slovenia:
the territory of the Republic of Slovenia.
2. Unless the context otherwise requires, any term not defined in this Agreement has the meaning assigned to it in the applicable legislation.
ARTICLE 2
Legislative Scope
Subject to paragraph 2, this Agreement shall apply to the legislation effective at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, supersedes or replaces it:
(a) in relation to Australia, the Acts forming the social security law in so far as the law provides for, applies to or affects the following benefits:
(i) age pension; and
(ii) disability support pension for the severely disabled;
and
(b) in relation to Slovenia, the legislation that governs the Pension and Invalidity Insurance except for the provisions concerning the benefits for residual ability to work.
This Agreement shall apply to laws or regulations which extend the existing legislation to other categories of beneficiaries only if both Parties so agree in a Protocol to this Agreement.
Notwithstanding the provisions of paragraph 1, the legislation of the Parties shall not include treaties or other international agreements concluded between either of them and a third State, except as otherwise provided in 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 Slovenia.
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.
PROVISIONS RELATING TO BENEFITS
ARTICLE 5
Export of Benefits
Australian benefits which are payable by virtue of this Agreement shall be payable in the territory of Slovenia.
Slovenian benefits to which a person is entitled under Slovenian legislation or by virtue of this Agreement shall be paid to that person in the territory of Australia if that person moves to Australia permanently. It shall be considered that a person has moved to the territory of Australia permanently if this person has informed the Competent Institution that he or she will reside in Australia for a period exceeding 12 months.
Where there is a time limit on the continued qualification for an Australian benefit for a person who leaves Australia, then the same time limit shall apply to that benefit for a person who leaves Slovenia.
Slovenian benefits to which a person is entitled on the basis of Slovenian legislation or acquired by virtue of this Agreement shall be paid to Australian and Slovenian citizens who permanently reside in the territory of a third country.
Australian benefits to which a person is entitled under the legislation of Australia or by virtue of this Agreement shall be paid to Slovenian and Australian citizens who permanently reside in the territory of a third country.
If a Party imposes legal or administrative restrictions on the transfer of currency outside of its territory, that Party shall implement measures as soon as practicable to guarantee the rights to payment and delivery of benefits payable under the legislation of that Party or by virtue of this Agreement. The measures shall operate retrospectively to the time when the restrictions were imposed.
While the measures in paragraph 6 are being implemented, the Party not imposing the restrictions set out in paragraph 6 may impose restrictions on the payment of its benefits paid under the Agreement in the territory of the other Party, until the other Party has lifted all such restrictions. On the lifting of the restrictions by the other Party and the payment of arrears by that other Party then the first Party shall also pay arrears of its benefits in relation to the entire time during which the first Party's restrictions were imposed.
Where a Party has imposed legal or administrative restrictions on the transfer of its currency outside of its territory as mentioned in paragraph 6, it shall inform the other Party of those restrictions within one calendar month of their imposition and shall implement the measures described in that paragraph within 3 months of the imposition of the restrictions. A failure to comply with either requirement may be treated by the other Party as a material breach of the Agreement for the purposes of Article 60 of the Vienna Convention on the Law of Treaties.
Benefits paid by a Party outside its territory shall be paid in the currency of the United States of America or another internationally convertible currency.
A benefit payable by a Party by virtue of this Agreement or under its legislation shall be paid by that Party without deduction of administrative fees and charges by the government or the corresponding Competent Institution for processing and paying that benefit, whether the person qualifying for the benefit is in the territory of the other Party or in a third country.
For Australia, the provisions of this Article shall not apply to rent assistance, pharmaceutical allowance or any other allowance which is not payable indefinitely outside Australia.
For Slovenia, the provisions of this Article shall not apply to income supplementary allowances, attendance allowance and cash indemnities payable in respect of disability or any other allowance which is not payable outside Slovenia under the legislation of Slovenia.
ARTICLE 6
Medical Examinations
For the purposes of assessing a person's degree of disability or the person's ability to work where this is relevant for a claim for a benefit or for continued payment of a benefit, the Competent Institution of a Party shall apply the legislation of that Party.
To assist in the assessment referred to in paragraph 1, the Competent Institution of the Party in whose territory the person resides shall, at the request of the Competent Institution of the other Party forward to the latter free of charge any existing relevant medical reports and documents that it has available.
AUSTRALIAN BENEFITS
ARTICLE 7
Residence or presence in Slovenia or a Third State
Where a person would be qualified under the legislation of Australia or by virtue of this Agreement for a benefit except for not being an Australian resident and in Australia on the day on which the claim is lodged, but:
(a) is an Australian resident or a resident of Slovenia or a third State with which Australia has concluded an agreement on social security which includes provision for co-operation in the assessment and determination of claims for benefits and which includes that category of benefit; and
(b) is in Australia, or in Slovenia 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 purposes of lodging that claim, to be an Australian resident and in Australia on that day.
ARTICLE 8
Totalisation for 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 legislation of Australia for that benefit; and
(b) a period of Australian working life residence equal to or greater than the period referred to in paragraph 3; and
(c) a period of insurance in Slovenia that has already been used or can be used at the time of totalisation, to obtain a Slovenian benefit;
then, for the purposes of the claim for that Australian benefit, that period of insurance shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia, to be a period in which that person was an Australian resident.
For the purpose of this Article, where a person has a period as an Australian resident and a period of insurance, any period of overlap 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 purpose of an Australian benefit claimed by a person residing outside Australia , the minimum period required shall be 12 months, of which at least six months must be continuous; and
(b) for the purpose of an Australian benefit claimed by an Australian resident, no minimum period shall be required.
ARTICLE 9
Calculation of Australian Benefits
Subject to paragraph 2, where an Australian benefit is payable by virtue of this Agreement to a person outside Australia, the rate of that benefit shall be determined according to the legislation of Australia.
The provisions of paragraph 1 will continue to apply for 26 weeks when a person temporarily comes to Australia.
Subject to the provisions of paragraphs 4 and 5, where an Australian benefit is granted by virtue of this Agreement to a person who is in Australia, the rate of that benefit shall be determined by:
(a) calculating that person's income according to the legislation of Australia but disregarding in that calculation the Slovenian benefit to which that person or the partner of that person is entitled to receive, if applicable;
(b) deducting the amount of the Slovenian benefit to which that person is entitled to receive from the maximum rate of Australian benefit; and
(c) applying to the remaining benefit obtained under subparagraph (b) the relevant rate calculation set out in the legislation of Australia, using as the person's income the amount calculated under subparagraph (a).
The provisions of paragraph 3 will continue to apply for 26 weeks when a person temporarily leaves Australia.
Where a member of a couple is, or both that person and his or her partner are in receipt of a Slovenian benefit or benefits, each of them shall be deemed, for the purpose of paragraph 3 and for the legislation of Australia, to be in receipt of half of either the amount of that benefit or the total of both those benefits as the case may be.
Benefits referred to in paragraph 1 do not include rent assistance, pharmaceutical allowance or any other allowance which is not payable indefinitely outside Australia.
BENEFITS ACCORDING TO SLOVENIAN LEGISLATION
ARTICLE 10
Totalisation for Slovenian Benefits
If a person does not fulfil the requirements for pension solely on the basis of his/her period of insurance, the entitlement to a benefit shall be established on the basis of totalising the period of insurance and that of his/her Australian working life residence provided these periods do not overlap.
If a person qualifies for a benefit under Slovenian legislation without the need for totalisation of the periods completed in the territories of both Parties, the Competent Institution shall grant the benefit exclusively on the basis of period of insurance.
If the period of insurance in total amounts to less than 12 months no benefit shall be granted. This does not apply if there is entitlement to a benefit only on the basis of that lesser period of insurance.
Notwithstanding the provision of paragraph 3 of Article 2, where based on the provisions of paragraph 1 of this Article a person does not satisfy conditions for the benefit, the competent institution of Slovenia shall take into account periods of insurance or periods of residence completed by Slovenian nationals in a third State to which Slovenia is bound by an agreement on social security which provides for the totalisation of periods of insurance or residence, respectively.
ARTICLE 11
Calculation of Slovenian Benefits
If a person qualifies for a benefit under Slovenian legislation only by the application of the totalisation provisions contained in Article 10 paragraph 1, the Slovenian Competent Institution shall calculate the amount of the benefit in the following way:
(a) it shall first calculate a theoretical amount of a benefit which would be payable if all totalised periods (being periods of insurance and periods of Australian working life residence) were completed under Slovenian legislation; and
(b) on the basis of this theoretical amount, it shall then calculate the actual amount of the benefit which is payable according to the ratio of the period of insurance and the totalised periods.
If when applying paragraph 1 (b) the totalised periods exceed the longest possible period of insurance defined for the calculation of a benefit under Slovenian legislation, the partial amount payable is calculated according to the ratio of the period of insurance and the longest possible period of insurance.
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 12
Lodgement of Documents
A claim, notice or appeal concerning a benefit, whether payable by virtue of this Agreement or otherwise, may be lodged in the territory of the other Party, in accordance with the Administrative Arrangement made pursuant to Article 15, at any time after the Agreement has come into force.
For the purpose of determining the right to a benefit, the date on which a claim, notice or appeal referred to in paragraph 1, is lodged with the Competent Institution of one Party, shall be considered as the date of lodgement of that document with the Competent Institution of the other Party. The Competent Institution to which a claim, notice or appeal is lodged shall refer it without delay to the Competent Institution of the other Party.
The reference in this Article to an appeal is an appeal that may be made to an administrative body or a corresponding body of either Party that has been established by, or administratively for, the purposes of the legislation of each Party.
Any exemption granted in the territory of one of the Parties from payment of taxes or fees in respect of certificates and documents required to be submitted to the Competent Authorities and Competent Institutions in the same territory shall also apply to the certificates and documents which, for the purpose of this Agreement, have to be submitted to the Competent Authorities or Competent Institutions of the other Party. Documents and certificates required to be produced for the purpose of this Agreement shall be exempt from authentication by diplomatic and consular authorities.
ARTICLE 13
Recovery of Overpayments
Where:
(a) an amount of arrears of benefit is paid or payable to a person by the Competent Institution of Slovenia; and
(b) for all or part of the relevant period, Australia has paid to that person a benefit; and
(c) the amount of the benefit paid by Australia would have been reduced had the benefit paid or payable by the Competent Institution of Slovenia 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.
Where the Competent Institution of Slovenia has not yet paid the benefit described in subparagraph 1(a) to that person:
(a) that Competent Institution shall, at the request of the Competent Institution of Australia, pay the amount of the benefit necessary to meet the debt described in subparagraph 1(d) to the Competent Institution of Australia and shall pay any excess to that person; and
(b) any shortfall may be recovered by Australia under subparagraph 1(e).
For Australia, a reference in paragraph 1 to a benefit means a pension, benefit or allowance payable under the social security law of Australia.
ARTICLE 14
Exchange of Information and Mutual Assistance
The Competent Authorities and Competent Institutions responsible for the application of this Agreement shall, to the extent permitted by the legislation which they administer:
(a) subject to paragraphs 3 and 4, communicate to each other any information necessary for the application of this Agreement;
(b) lend their good offices and furnish assistance to one another, including the communication to each other of any necessary information, with regard to the determination or payment of any benefit under this Agreement or under the social security law of either Party as if the matter involved the application of their own legislation;
(c) communicate to each other, as soon as possible, all information about the measures taken by them for the application of the Agreement;
(d) at the request of one to another, assist each other in relation to the implementation of agreements on social security entered into by either of the Parties with third States, to the extent and in the circumstances specified in the Administrative Arrangement made in accordance with Article 15; and
(e) advise each other of any laws which amend, supplement, supersede or replace their respective legislations and which are relevant to the operation of this Agreement promptly after those laws are made.
The assistance referred to in paragraph 1 shall be provided free of charge, subject to any Administrative Arrangement made in accordance with Article 15.
Unless disclosure is required under the legislation of a Party, personal data which is transmitted in accordance with this Agreement to a Competent Authority or Competent Institution of that Party is confidential and shall only be used for purposes of implementing this Agreement and the social security laws of either Party.
Notwithstanding any laws or administrative practices of a Party, no personal data which is received by that Party from the other Party shall be transferred or disclosed to any other country or to any other organisation within that other country without the prior written consent of that other Party.
Communications between Competent Authorities, Competent Institutions and persons to whom this Agreement applies may be made in any of the official languages of the Parties.
Reimbursements under this Agreement between Competent Institutions shall be made in the currency of the Party receiving those reimbursements.
ARTICLE 15
Administrative Arrangement
The Competent Authorities of the Parties shall make whatever arrangements are necessary in order to implement this Agreement by means of an Administrative Arrangement.
The Competent Authorities shall appoint liaison bodies in the Administrative Arrangement.
ARTICLE 16
Recognition of Prior Periods and Events
In determining the qualification for a benefit of a person or the amount of benefit payable to a person, by virtue of this Agreement, any events or facts and any period;
(a) as an Australian resident;
(b) of Australian working life residence; and
(c) of insurance
shall, subject to this Agreement, be taken into account in so far as those periods, events or facts are applicable in regard to that person regardless of when they occurred or were accumulated.
No provision of this Agreement shall confer on a person any right to receive payment of a benefit in relation to a period before the date on which this Agreement comes into force.
ARTICLE 17
Resolution of Difficulties
The Competent Authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.
ARTICLE 18
Review of Agreement
Where a Party requests the other to meet to review this Agreement the Parties shall meet for that purpose no later than 6 months after that request was made and, unless the Parties otherwise agree, their meeting shall be held in the territory of the Party to which the request was made.
ARTICLE 19
Entry into Force and Termination
This Agreement shall enter into force on the first day of the month following the month in which notifications are exchanged by the Parties through the diplomatic channel notifying each other that the constitutional requirements for entry into force of this Agreement have been fulfilled.
Subject to paragraph 3, this Agreement shall remain in force indefinitely or until the expiration of 6 months from the date on which either Party receives from the other a note through the diplomatic channel indicating the intention of the other Party to terminate this Agreement.
In the event that this Agreement is terminated in accordance with paragraph 2, the Agreement shall continue to have effect in relation to all persons who:
(a) at the date of termination, are in receipt of its benefits; or
(b) prior to the expiry of the period referred to in paragraph 2, have lodged claims for, and would be entitled to receive, its benefits
by virtue of this Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Vienna on this 19th day of December 2002, in the English and Slovenian languages, each text being equally authoritative.
FOR GOVERNMENT OF AUSTRALIA:
FOR THE GOVERNMENT OF THE REPUBLIC OF SLOVENIA:
AMBASSADOR MAX HUGHES
AMBASSADOR ERNST PETRIČ
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 (repealed by SR 2002 No. 34) and 245 (repealed by SR 2002 No. 34); 2002 Nos. 31, 32 (as amended by 2002 Nos. 164 and 225), 33 (as amended by 2002 No. 210) and 165; Act No. 30, 2003.
Note: 2. Notified in the Commonwealth of Australia Gazette on 15 August 2003.