Commonwealth Numbered Acts

SOCIAL SECURITY ACT 1991 No. 46, 1991 - SCHEDULE 6

SCHEDULE 6
Section 1208
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND SPAIN Australia and Spain,
Wishing to strengthen the existing friendly relations between the two
countries, and Resolved to co-operate in the field of social security; Have
agreed as follows:
PART I
GENERAL PROVISIONS
ARTICLE 1
Definitions 1. In this Agreement, unless the context otherwise requires:
. "benefit" means in relation to a Party, a benefit for which provision is
made in the legislation of that Party, and includes any additional amount,
increase or supplement that is payable, in addition to that benefit, to or
in respect of a person who qualifies for that additional amount, increase or
supplement under the legislation of that Party;
. "carer's pension" means a carer's pension payable to a spouse under the
legislation of Australia;
. "Competent Authority" means; in relation to Australia: the Secretary to the
Department of Social Security; and, in relation to Spain: the Department of
Labour and Social Security;
. "Competent Institution" means; in relation to Australia: the Competent
Authority for Australia; and in relation to Spain: the Institution responsible
under the legislation of Spain for dealing with a claim for a Spanish benefit;
. "Institution" means; in relation to Australia: the Competent Authority for
Australia; and in relation to Spain: the agency or authority responsible for
the implementation of the legislation of Spain;
. "legislation" means, in relation to a Party, the laws specified in Article 2
in relation to that Party;
. "period of residence in Australia", in relation to a person, means a period
defined as such in the legislation of Australia, but does not include any
period deemed pursuant to Article 8 to be a period in which that person was an
Australian resident;
. "Spanish creditable period" means a period, or the total of two or more
periods, of contributions which has been or can be used to acquire the right
to a Spanish benefit, but does not include any period considered under
paragraph 1 of Article 10 as a Spanish creditable period;
. "widow" means, in relation to Australia: a de jure widow but does not
include a woman who is the de facto spouse of a man. 2. In the application by
a Party of this Agreement in relation to a person, any term not defined in
this Article shall, unless the context otherwise requires, have the meaning
assigned to it in the legislation of either Party or, in the event of a
conflict of meaning, by whichever of those laws is the more applicable to the
circumstances of that person.
ARTICLE 2
Legislative Scope 1. Subject to paragraph 2, this Agreement shall apply to the
following laws, as amended at the date of signature of this Agreement, and to
any laws that subsequently amend, supplement or replace them:

   (a)  in relation to Australia: the Social Security Act 1947 in so far as
        the Act provides for and in relation to the following benefits:

   (i)  age pensions;

   (ii) invalid pensions;

   (iii) wives' pensions;

   (iv) carer's pensions; and

        (v)    pensions payable to widows,

   (b)  in relation to Spain: the legislation relating to the General Scheme
        and the Special Schemes of the Social Security system as they relate
        to the following benefits:

   (i)  benefits for temporary incapacity for work in cases of common illness,
        maternity or non-industrial accident;

   (ii) invalidity;

   (iii) old age;

   (iv) death and survivors; and

        (v)    unemployment benefits. 2. Notwithstanding the provisions of
               paragraph 1 the legislation of Australia shall not include any
               laws made, whether before or after the date of signature of
               this Agreement, for the purpose of giving effect to any
               reciprocal agreement on social security entered into by either
               Party. 3. This Agreement shall apply to laws which extend the
               legislation of either Party to new categories of beneficiaries
               only if the two Parties so agree in a Protocol to this
               Agreement.
ARTICLE 3
Personal Scope This Agreement shall apply to any person who:

   (a)  is or has been an Australian resident; or

   (b)  is or has been subject to the legislation of Spain, and where
        applicable, to any spouse, dependant or survivor of such a person.
ARTICLE 4
Equality of Treatment Subject to this Agreement, all persons to whom this
Agreement applies shall be treated equally by a Party in regard to rights and
obligations which arise whether directly under the legislation of that Party
or by virtue of this Agreement.
ARTICLE 5 Application of Spanish Legislation 1. Where an employee or a
self-employed worker who is covered by the Social Security Schemes of Spain is
sent by his firm, or goes, to undertake temporary work in Australia he or she
shall continue to be covered by those Social Security Schemes so long as the
period of the proposed work does not exceed 5 years. 2. If, owing to
unforeseen circumstances, the period of the work extends beyond 5 years, this
extension may be recognized by the Competent Authority of Spain.
PART II
PROVISIONS RELATING TO AUSTRALIAN BENEFITS
ARTICLE 6 Residence or Presence in Spain or a Third State 1. Where a person
would be qualified under the legislation of Australia or by virtue of this
Agreement for a benefit except that he or she is not an Australian resident
and in Australia on the date on which he or she lodges a claim for that
benefit but he or she:

   (a)  is an Australian resident or residing in Spain or a third State with
        which Australia has concluded an agreement on social security that
        includes provision for co-operation in the assessment and
        determination of claims for benefits; and

   (b)  is in Australia, Spain or that third State,
that person shall be deemed, for the purposes of lodging that claim, to be an
Australian resident and in Australia on that date. 2. Paragraph 1 shall not
apply to a claimant for a wife's pension or carer's pension who has never been
an Australian resident.
ARTICLE 7
Spouse-related Australian Benefits For the purposes of this Agreement, a
person who receives an Australian benefit due to the fact that the spouse of
that person receives by virtue of this Agreement another Australian benefit,
shall be deemed to receive that first-mentioned benefit by virtue of this
Agreement.
ARTICLE 8
Totalisation for Australia 1. Where a person to whom this Agreement applies
has claimed an Australian benefit under this Agreement and has accumulated:

   (a)  a period as an Australian resident that is less than the period
        required to qualify him or her, on that ground, under the legislation
        of Australia for that Australian benefit; and

   (b)  a period of residence in Australia equal to or greater than the
        minimum period identified in accordance with paragraph 4 for that
        person;
and has accumulated a Spanish creditable period then for the purposes of a
claim for that Australian benefit, that Spanish creditable period shall be
deemed, only for the purposes of meeting any minimum qualifying periods for
that benefit set out in legislation of Australia, to be a period in which that
person was an Australian resident. 2. 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 legislation of
        Australia for entitlement of that person to a benefit; and

   (b)  has accumulated a Spanish creditable period in two or more separate
        periods that equals or exceeds in total the minimum period referred to
        in subparagraph (a),
the total of the Spanish creditable periods shall be deemed to be one
continuous period. 3. For all purposes of this Article, where a period by a
person as an Australian resident and a Spanish creditable period accumulated
by that person coincide, the period of coincidence shall be taken into account
once only by Australia as a period as an Australian resident. 4. The minimum
period of residence in Australia 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
        residing outside Australia, the minimum period required shall be one
        year, 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 there shall be no minimum
        period of residence in Australia.
ARTICLE 9
Calculation of Australian Benefits 1. Where an Australian benefit is payable
by virtue of this Agreement, to a person outside of Australia, the rate of
that benefit shall be determined according to the legislation of Australia. 2.
Notwithstanding the provisions of the previous paragraph, when assessing the
income of a person for the purposes of calculating the rate of benefit only a
proportion of any Spanish benefit (or benefits) shall be regarded as income.
That proportion shall be calculated by multiplying the total number of months
of that person's period of residence in Australia, which shall not exceed 300,
by the amount of that Spanish benefit and dividing that product by 300. 3. A
person who is in receipt of an Australian benefit under the legislation of
Australia, shall be entitled to the concessional assessment of income set out
in paragraph 2 of this Article for any period during which the rate of that
person's Australian benefit is proportionalised under the legislation of
Australia. 4. Where an Australian benefit is payable only by virtue of this
Agreement to a person who is in Australia and until the person becomes
eligible under Australian domestic legislation the amount of that benefit
shall be determined as follows:

   (a)  according to the legislation of Australia, but without taking into
        account in the computation of his or her income any Spanish benefit
        which that person is entitled to receive, and

   (b)  by deducting the amount of that Spanish benefit from the amount of the
        Australian benefit to which that person would otherwise be entitled.
        5. Where a married person, or that person and his or her spouse are in
        receipt of a Spanish benefit or benefits, it shall be deemed, for the
        purposes of implementing paragraph 4 and the legislation of Australia,
        that each one of them receives one half of the amount of the benefit
        or the total of the two benefits as the case may be. 6. If a person is
        unable to receive an Australian benefit as a result of the provisions
        of paragraph 4, or because the person did not claim the said benefit,
        it shall be deemed that if that person's spouse claims a benefit under
        the legislation of Australia, that the person receives that benefit.
        7. The reference in paragraph 6 to payment of a benefit under the
        legislation of Australia to the spouse, means the payment of any
        benefit, pension or allowance payable under the Social Security Act
        1947 as amended from time to time and whether payable by virtue of
        this Agreement or otherwise.
PART III
PROVISIONS RELATING TO SPANISH BENEFITS
ARTICLE 10
Totalization for Spain 1. Where this Agreement applies and there is a Spanish
creditable period that is:

   (a)  less than the period necessary to give a claimant entitlement to the
        benefit claimed under Spanish legislation; and

   (b)  equal to or greater than the minimum period mentioned in paragraph 3
        for that benefit, then any period of residence in Australia by the
        contributor to whom that Spanish creditable period was credited shall
        be deemed to be a Spanish creditable period. 2. For the purposes of
        this Article, where a Spanish creditable period and period of
        residence in Australia coincide, the period of coincidence shall be
        taken into account once only as a Spanish creditable period. 3. The
        minimum Spanish creditable period to be taken into consideration for
        the purposes of paragraph 1 shall be one year. However, where the
        Spanish creditable period is shorter than one year and the period of
        residence in Australia is also shorter than one year, but with the
        addition of both periods an entitlement to a Spanish benefit is
        obtained, they shall both be taken into account. 4. For the purposes
        of this Article the upper age limit for a woman, set in the definition
        of a period of residence in Australia in the legislation of Australia
        shall be raised from 60 years to 65 years for the purposes of claiming
        an old age pension under the legislation of Spain.
ARTICLE 11
Sickness Benefits For the granting of benefits in case of sickness of a worker
the totalization of periods referred to in Article 10 shall be taken into
account, if necessary, without the condition imposed by subparagraph 1 (b) of
Article 10.
ARTICLE 12
Old age, invalidity and survivors pensions 1. Entitlement by virtue of this
Agreement to old age, invalidity or death and survivors benefit under the
legislation of Spain shall be determined as follows:

   (a)  The Competent Institution shall determine, according to its own
        provisions, the amount of the benefit corresponding to the duration of
        the periods of insurance completed only under its legislation.

   (b)  The Competent Institution shall also examine the entitlement
        considering the provisions of Article 10. If, in application of it,
        entitlement to pension is obtained, the following rules shall apply
        for the calculation of the amount:

   (i)  the Competent Institution shall determine the theoretical pension to
        which the claimant would be entitled as if all the periods of
        insurance and/or residence totalized had been accomplished under its
        legislation;

   (ii) the amount of the pension effectively due to the claimant, shall be
        that obtained after reducing the amount of the theoretical pension to
        a pro-rata pension, according to the period of insurance completed
        exclusively under the legislation of Spain and all the periods of
        insurance and residence completed in the two Parties; and

   (iii) in no case shall the sum of the Spanish creditable periods and the
        periods of residence in Australia be taken to exceed the maximum
        period established by the legislation of Spain in regard to the
        benefit in question. 2. Once the entitlement of the claimant has been
        established according to subparagraphs 1 (a) and (b) the Competent
        Institution shall assign the most favourable benefit.
ARTICLE 13
Special Scheme Benefits If the legislation of Spain provides that in the
determination of entitlement to or the granting of certain benefits there is a
requirement that the Spanish creditable periods have been completed in an
activity subject to a Special Scheme or, as the case may be, in a specific
activity or specific employment, periods of residence in Australia completed
under the legislation of Australia shall be taken into account when they have
been accomplished in an equivalent scheme or in the same activity or in the
same employment.
ARTICLE 14
Determination of Regulating Base When, for determining the Regulating Base for
benefits, periods of residence in Australia must be taken into account, the
Spanish Competent Institution shall determine that Regulating Base on the
minimum contribution bases in force in Spain, during that period or fraction
of period, for the workers of the same category of professional qualification
as the person concerned last had according to Spanish legislation.
ARTICLE 15
Situacion de alta An Australian resident or a person in receipt of an
Australian benefit shall be deemed to be validly insured (situacion de alta o
asimilada) for the purposes of entitlement to benefit under the legislation of
Spain.
ARTICLE 16
Unemployment Benefits 1. For the granting of unemployment benefits the
totalization of periods referred to in Article 10 shall, if necessary, be
taken into account without the condition imposed by subparagraph 1 (b) of that
Article. 2. Notwithstanding the provisions of Article 20, unemployment
benefits paid pursuant to paragraph 1 shall be paid during the periods
established under the legislation of Spain and while the unemployed person
resides in the territory of Spain.
ARTICLE 17
Equivalence of Events The continuing entitlement to a Spanish benefit shall be
subject to the legislation of Spain and events which occur in Australia
relevant to that continuing entitlement will be considered as if they had
occurred in Spain.
PART IV
MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS
ARTICLE 18
Lodgement of Documents 1. A claim, notice or appeal concerning a benefit,
whether payable by a Party by virtue of this Agreement or otherwise, may be
lodged in the territory of either of the Parties in accordance with
administrative arrangements made pursuant to Article 22 at any time after the
Agreement enters into force. 2. The date on which a claim, notice or appeal
referred to in paragraph 1 is lodged with the Competent Institution of the
other Party shall be treated, for all purposes concerning the matter to which
it relates, as the date of lodgement of that document with the Competent
Institution of the first Party. 3. In relation to Australia, the reference in
paragraph 2 to an appeal document is a reference to a document concerning 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
Determination of Claims 1. 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 Spanish creditable period;
        and

   (b)  any event or fact which is relevant to that entitlement,
shall, subject to this Agreement, be taken into account in so far as those
periods or those events are applicable in regard to that person no matter when
they were accumulated or occurred. 2. The commencement date for payment of a
benefit payable by virtue of this Agreement shall be determined in accordance
with the legislation of the Party concerned but in no case shall that date be
a date earlier than the date on which this Agreement enters into force.
3.(a) Where a person receives or will receive a benefit from one Party and has
received an overpayment of a benefit from the other Party, the Institution of
the latter Party may request the Institution of the former Party to withhold
the amount of the overpayment from the arrears of benefits payable by the
former Party and transfer them to the Institution of the latter Party to
recoup the amount of the overpayment.

   (b)  The Institution receiving a request under subparagraph (a) shall take
        the action set out in the Administrative Arrangement, as provided for
        in Article 22, to recoup the amount of the overpayment and to transfer
        it to the other Institution.

   (c)  The amount of the overpayment shall be a debt due by the person
        receiving it to the Party that paid it. 4. A reference in paragraph 3
        to a benefit, in relation to Australia, means a pension, benefit or
        allowance that is payable under the Social Security Act 1947 of
        Australia as amended from time to time, and in relation to Spain,
        means any pension, benefit, allowance or advance made by an
        Institution including overpayments.
ARTICLE 20
Payment of Benefits 1. The benefits payable by virtue of this Agreement and
listed in this paragraph shall be payable within and outside the territories
of both Parties:

   (a)  for Australia:
-- age pensions,
-- invalid pensions,
-- wife's pensions, and
-- pensions payable to widows for persons who are Class B widows or Class A
widows who were widowed in Australia.

   (b)  for Spain:
-- invalidity,
-- old age, and
-- death and survivors. 2. The benefits payable by virtue of this Agreement or
otherwise and listed in this paragraph shall be paid in Australia and Spain
with no limitation by time:

   (a)  for Australia:
-- carer's pensions, and
-- pensions payable to widows who are not included in subparagraph 1 (a).

   (b)  for Spain:
-- invalidity,
-- old age, and
-- death and survivors. 3. If a Party imposes legal or administrative
restrictions on the transfer of its currency abroad, both Parties shall adopt
measures as soon as practicable to guarantee the rights to payment of benefits
derived under this Agreement. Those measures shall operate retrospectively to
the time the restrictions were imposed. 4. A benefit payable by a party by
virtue of this Agreement shall be paid by that Party, whether the beneficiary
is in the territory of the other Party or outside the respective territories
of both Parties, without deduction for government administrative fees and
charges for processing and paying that benefit. 5. The payment outside
Australia of an Australian benefit that is payable by virtue of this Agreement
shall not be restricted by those provisions of the legislation of Australia
which prohibit the payment of a benefit to a former Australian resident who
returns to Australia becoming again an Australian resident, and lodges a claim
for an Australian benefit and leaves Australia within 12 months of the date of
that return.
ARTICLE 21
Exchange of Information and Mutual Assistance 1. The Competent Authorities
shall:

   (a)  advise each other of laws that amend, supplement or replace the
        legislation of their respective Parties, promptly after the
        first-mentioned laws are made;

   (b)  advise each other directly of internal action to implement this
        Agreement and any Arrangement adopted for its implementation; and

   (c)  advise each other of any technical problems encountered when applying
        the provisions of this Agreement or of any Arrangement made for its
        implementation. 2. The Institutions of both Parties shall:

   (a)  advise each other of any information necessary for the application of
        this Agreement or of the respective legislation of the Parties
        concerning all matters within their area of competence arising under
        this Agreement or under those laws;

   (b)  assist one another in relation to the determination of any benefit
        under this Agreement or the respective legislation within the limits
        of and according to their own laws; and

   (c)  at the request of one to the other, 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 administrative arrangements made in
        accordance with Article 22. 3. The assistance referred to in
        paragraphs 1 and 2 shall be provided free of charge, subject to any
        arrangement reached between the Competent Authorities and Institutions
        for the reimbursement of certain types of expenses. 4. Any information
        about a person which is transmitted in accordance with this Agreement
        to an Institution shall be protected in the same manner as information
        obtained under the legislation of that Party. 5. In no case shall the
        provisions of paragraphs 1, 2 and 4 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 the other Party. 6.
        In this Article the meaning of "legislation" is not confined by any
        restrictions imposed by Article 2. 7. In the application of this
        Agreement, the Competent Authority and the Institutions of a party may
        communicate with the other in the official language of that Party.
ARTICLE 22
Administrative Arrangements The Competent Authorities of the Parties shall
make whatever administrative arrangements are necessary in order to implement
this Agreement.
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 arrange, their
meeting shall be held in the territory of the Party to which that request was
made.
PART V FINAL PROVISIONS
ARTICLE 24
Entry Into Force and Termination 1. This Agreement shall enter into force one
month after an exchange of notes 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 finalized. 2. Subject to
paragraph 3, this Agreement shall remain in force 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. 3. 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 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 authorised thereto by their respective Governments, have signed
        this Agreement. DONE in 2 copies at CANBERRA this 10th day of FEBRUARY
        1990 in the Spanish and English languages, each text being equally
        authoritative.
FOR AUSTRALIA:                                                FOR SPAIN:

BRIAN HOWE                                             JOSE LUIS PARDOS