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SOCIAL SECURITY AND VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT 1988 No. 135, 1988 - SCHEDULE 1
SCHEDULE 1
Section 20
"SCHEDULE 3
Section 65
AGREEMENT
between
THE GOVERNMENT OF AUSTRALIA
and the
GOVERNMENT OF NEW ZEALAND
providing for reciprocity in matters
relating to social security The Government of Australia and The Government of
New Zealand, WISHING to strengthen the existing friendly relations between the
two countries, and DESIRING to co-ordinate the operation of their respective
social security systems and to enhance the equitable access by people covered
by this Agreement to social security benefits provided for under the laws of
both countries, and WISHING to modify the Agreement providing for reciprocity
in matters relating to social security which they entered into on the Fifth
day of October 1986 by means of a consolidated document, HAVE agreed as
follows:
PART I-INTERPRETATION AND SCOPE
Article 1
Interpretation 1. In this Agreement, unless the context otherwise requires:
(a) 'Australian benefit' means a benefit referred to in Article 2 in
relation to Australia;
(b) 'benefit' means Australian benefit or New Zealand benefit;
(c) 'competent authority' means, in the case of Australia, the Secretary
to the Department of Social Security or an authorised representative
of the Secretary and, in the case of New Zealand, the Director-General
of Social Welfare or an authorised representative of the
Director-General or, if either no longer exists, such other officer or
body as the responsible Minister for the Party concerned notifies to
the reponsible Minister for the other Party;
(d) 'New Zealand benefit' means a benefit referred to in Article 2 in
relation to New Zealand; and
(e) 'social security laws' means in relation to a Party, the laws
specified in Article 2 in relation to that Party. 2. This Agreement
applies:
(a) in relation to Australia, to its external territories in the same
manner as the social security laws of Australia apply to those
territories; and
(b) in relation to New Zealand, to New Zealand only and not to the Cook
Islands, Niue or Tokelau, and references to 'Australia', 'New Zealand'
or 'territory' in relation to either of them shall be read
accordingly. 3. 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 social security laws of either Party or, in the event of a
conflict of meanings, by whichever of those laws is the more
applicable to the circumstances of that person.
Article 2
Legislative Scope 1. The legislation within the scope of this Agreement is:
(a) in relation to Australia: the Social Security Act 1947 as amended at
the date of signature of this Agreement and any legislation that
subsequently amends, supplements or replaces that Act, in so far as
that Act and that legislation provide for, apply to or affect the
following benefits:
(i) age pensions;
(ii) invalid pensions;
(iii) wives' pensions;
(iv) carers' pensions;
(v) widows' pensions;
(vi) supporting parents' benefits;
(vii) unemployment benefits;
(viii) sickness benefits; and
(ix) family allowances; and
(b) in relation to New Zealand: the Social Security Act 1964 as amended at
the date of signature of this Agreement and any legislation that
subsequently amends, supplements or replaces that Act, in so far as
that Act and that legislation provide for, apply to or affect the
following benefits:
(i) national superannuation;
(ii) invalids' benefits;
(iii) widows' benefits;
(iv) domestic purposes benefits;
(v) unemployment benefits;
(vi) sickness benefits;
(vii) orphans' benefits; and
(viii) family benefits. 2. Notwithstanding the provisions of paragraph
1, the legislation within the scope of this Agreement 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 bilateral agreement on social security entered into by
either Party. 3. The competent authorities of the Parties shall
notify each other of legislation that amends, supplements or
replaces the legislation within the scope of this Agreement in
relation to their respective Parties, promptly after the
first-mentioned legislation is enacted.
Article 3
Equality of Treatment A Party shall treat all persons affected by this
Agreement equally in regard to rights and obligations that arise by virtue of
this Agreement.
PART II-RESIDENCE
Article 4 Entitlement to Benefits During Residence or Presence in a Country 1.
For the purposes of this Agreement and of the Social Security laws of
Australia, where a person who is ordinarily resident in New Zealand has
travelled directly from New Zealand to Australia and:
(a) has been in Australia for a continuous period of at least 26 weeks
immediately prior to lodging a claim for an Australian benefit; or
(b) has a bona fide intention to remain in Australia for more than 26
weeks, he or she shall be deemed to be an Australian resident. 2. For
the purposes of this Agreement and of the Social Security laws of New
Zealand, where an Australian resident has travelled directly from
Australia to New Zealand and:
(a) has been in New Zealand for a continuous period of at least 26 weeks
immediately prior to lodging a claim for a New Zealand benefit; or
(b) has a bona fide intention to remain in New Zealand for more than 26
weeks, he or she shall be deemed to be ordinarily resident in New
Zealand. Article 5 Recognition of Periods of Residence in New Zealand
and Periods as an Australian Resident 1. Where a person is an
Australian resident and is claiming an Australian benefit each period
in which that person was resident in New Zealand shall be deemed, only
for the purposes of meeting any minimum qualifying periods for that
claim, to be a period as an Australian resident. 2. Where a person is
residing in New Zealand and is claiming a New Zealand benefit each
period in which that person was an Australian resident or, as
appropriate, in which a related person was an Australian resident
shall be deemed, only for the purposes of meeting any minimum
qualifying periods for that claim, to be a period of residence in New
Zealand. 3. In paragraphs 1 and 2 'benefit' does not include
unemployment benefit. 4. In paragraph 2 'related person' means:
(a) the spouse of the claimant;
(b) the last deceased spouse of the claimant;
(c) a child in respect of whom the benefit referred to in paragraph 2 is
claimed; or
(d) the last surviving parent, or the deceased parent formerly responsible
for the care and control, of a child, as the circumstances require. 5.
Subject to paragraph 6, the question as to whether a person is or, at
any past time, was an Australian resident or residing in New Zealand
for the purposes of this Agreement shall be determined by reference to
the domestic laws of the relevant Party. 6. Where, for a period, a
person is both an Australian resident and a resident of New Zealand,
that period shall be counted:
(a) in relation to a claim for an Australian benefit, only as a period as
an Australian resident; and
(b) in relation to a claim for a New Zealand benefit, only as a period of
residence in New Zealand. 7. In relation to a claim by a person under
this Agreement for national superannuation any periods in which that
person was an Australian resident and was present in Australia shall,
for the purposes of that claim, be deemed to be periods in which that
person was resident and present in New Zealand.
PART III-PROVISIONS RELATING TO BENEFITS
Article 6
Payment of Supplementary and Additional Amounts Where a benefit is payable by
a Party by virtue of this Agreement to or in respect of a person, there shall
also be payable any supplement or additional amount that is payable, in
addition to that benefit, to or in respect of a person who qualifies for that
supplement or additional amount under the social security laws of that Party.
Article 7
Entitlement to Payment by New Zealand of National Superannuation A person
shall not be entitled by virtue of this Agreement to the payment by New
Zealand of national superannuation unless that person is of an age at which an
age pension may be payable to the person under the social security laws of
Australia.
Article 8
New Zealand Widows', Domestic Purposes and Orphans' Benefits Where a widow's
benefit, a domestic purposes benefit or an orphan's benefit would be payable
by New Zealand but for the fact that a child to whom that benefit would relate
was born in Australia, that child shall, for the purposes of a claim for that
benefit, be deemed to have been born in New Zealand.
Article 9
Unemployment Benefit 1. This Article applies to any person who is in the
territory of a Party and whose right to remain in that territory is dependent
on that person being a citizen of the other Party. 2. Subject to paragraph 4,
a person to whom this Article applies shall not be qualified to receive
unemployment benefit from a Party unless the person:
(a) has been continuously present in the territory of that Party for not
less than 6 months since the date of his or her most recent arrival in
that territory;
(b) satisfies the competent authority of that Party, by reference to the
person's circumstances, or his or her work history in that territory,
that the person has permanently settled in that territory; and
(c) meets those criteria which are specified for that benefit by the
social security laws of that Party. 3. For the purposes of
subparagraph 2 (b):
(a) a person shall be deemed to satisfy the requirements in relation to
work history in the territory of a Party if, since the date referred
to in subparagraph 2 (a), the person has undertaken paid work for 8
weeks of at least 30 hours per week; and
(b) consideration of a person's circumstances shall include consideration
of:
(i) the person's family arrangements;
(ii) the housing or accommodation arrangements of the person and, if
applicable, of the spouse and children of the person, whether
in the territory of the Party concerned, of the other Party or
elsewhere, including actions such as the purchase or lease of a
home in the first-mentioned territory and the disposal of a
former home in the other territory or elsewhere; and
(iii) the arrangements made by the person in regard to any bank or
comparable accounts, the transfer, disposal or location of any
property, and taxation clearances. 4. This Article shall not
apply to a person who has been:
(a) in relation to Australia, an Australian resident; or
(b) in relation to New Zealand, resident in New Zealand, for the period of
12 months immediately preceding the date on which the person lodges a
claim for unemployment benefit in, respectively, Australia or New
Zealand. 5. For the purposes of paragraph 4, a period as an Australian
resident or of residence in New Zealand in relation to a person shall
include any period or periods of temporary absence by that person that
do not exceed in the aggregate 2 calendar months, and that do not
break the continuity of that period as an Australian resident or of
residence of New Zealand.
Article 10
Supporting Parents' Benefits and Domestic Purposes Benefits 1. This Article
applies to any person who is in the territory of a Party and whose right to
remain in that territory is dependent on that person being a citizen of the
other Party. 2. Subject to paragraph 3, a person to whom this Article applies
shall not be granted a supporting parents' benefit or a domestic purposes
benefit by a Party unless, in addition to meeting the requirements for that
benefit of the social security laws of that Party, the person has been
continuously present in the territory of that Party for not less than 6 months
since the date of his or her most recent arrival in that territory. 3. This
Article shall not apply to a person who has been:
(a) in relation to Australia, an Australian resident; or
(b) in relation to New Zealand, resident in New Zealand, for the period of
12 months immediately preceding the date on which the person lodges a
claim, in Australia, for supporting parents' benefit or, in New
Zealand, for domestic purposes benefit. 4. For the purposes of
paragraph 3, a period as an Australian resident or of residence in New
Zealand in relation to a person:
(a) shall include any period or periods of temporary absence by that
person that do not exceed in the aggregate 2 calendar months, and that
do not break the continuity of that period as an Australian resident
or of residence in New Zealand; and
(b) shall not include any period deemed by Article 5 to be a period as an
Australian resident or a period of residence in New Zealand.
Article 11
Wife's Pension and Carer's Pension A person who receives from Australia a
wife's pension or a carer's pension by virtue of the fact that the spouse of
that person receives, by virtue of this Agreement, an Australian benefit
shall, for the purposes of this Agreement, be deemed to receive that pension
by virtue of this Agreement.
Article 12
Sickness Benefit 1. This Article applies to a person who, immediately before
leaving New Zealand, was receiving a New Zealand sickness benefit or an
analagous emergency benefit payable under the Social Security Act 1964 of New
Zealand. 2. Where a person to whom this Article applies:
(a) has moved directly from New Zealand to Australia, without passing
through a third country;
(b) has remained incapacitated for work since arrival in Australia; and
(c) claims an Australian sickness benefit within 4 weeks of that arrival,
that person shall be deemed for the purposes of that claim to have
suffered a loss of income by reason of that incapacity amounting to
the maximum rate of Australian sickness benefit applicable to that
person. 3. A person who qualifies for an Australian sickness benefit
under paragraph 2 shall, subject to the social security laws of
Australia, be paid that benefit from the date of that person's arrival
in Australia.
PART IV-REIMBURSEMENT PROVISIONS
Article 13
Reimbursement of Certain Australian Benefits 1. Where by virtue of this
Agreement or otherwise a person receives from Australia:
(a) an age pension;
(b) an invalid pension;
(c) a widow's pension;
(d) a wife's pension;
(e) a rehabilitation allowance under Part XVI of the Social Security Act
1947 of Australia which is paid in lieu of an invalid pension or a
widow's pension; or
(f) an allowance granted under Part XIV of the Social Security Act 1947 of
Australia, and, when that person left New Zealand, had lodged a claim
for and would have been entitled to receive, or was receiving,
(g) national superannuation;
(h) an invalid's benefit; or
(i) a widow's benefit, otherwise than by virtue of the Agreement,
then New Zealand will reimburse Australia the full cost of the
Australian benefit subject to paragraphs 3 and 4. 2. A
supplement or additional amount payable by Australia in
addition to a benefit referred to in subparagraphs 1 (a) to 1
(f) inclusive shall for the purposes of paragraph 1 be deemed
to be part of that benefit. 3. The Australian benefits
described in subparagraphs 1 (a) to 1 (f) inclusive which are
subject to reimbursement by New Zealand shall be those granted
by Australia to persons who leave New Zealand on or after the
First day of April 1989. 4. New Zealand shall not be required
to reimburse Australia for payment of the benefits listed in
subparagraphs 1 (a) to 1 (f) inclusive after a recipient has
left Australia permanently or has been absent from Australia
for more than 26 weeks unless and until that recipient returns
to Australia when the obligation to reimburse shall revive. 5.
At least 2 months before the start of any New Zealand financial
year while this Agreement is in effect the competent authority
for Australia will supply to the competent authority for New
Zealand a written estimate of the amount of the reimbursable
benefits Australia expects to pay in that financial year. 6.
Within 3 months from the start of a New Zealand financial year
referred to in paragraph 5, New Zealand shall pay to Australia
the amount of the estimate given under paragraph 5 for that
financial year. 7. Within 3 months from the end of a New
Zealand financial year referred to in paragraph 5 the competent
authority for Australia shall provide to the competent
authority for New Zealand a written reconciliation statement
covering the amounts of reimbursable benefits estimated and
actually paid for and in that financial year. 8. If the
reconciliation statement described in paragraph 7 shows that an
amount of money should be paid by one Party to the other to
balance the payments in the relevant New Zealand financial year
then that amount shall be paid within 3 months from receipt of
that statement.
PART V-MISCELLANEOUS PROVISIONS
Article 14
Payment of Benefits During Temporary Absences 1. Subject to the provisions of
this Agreement, where Australia pays:
(a) an age pension;
(b) an invalid pension;
(c) a wife's pension;
(d) a widow's pension;
(e) an allowance granted under Part XIV of the Social Security Act of
Australia;
(f) a rehabilitation allowance under Part XVI of the Social Security Act
1947 of Australia which is paid in lieu of an invalid pension or a
widow's pension; or
(g) a family allowance, by virtue of this Agreement, that benefit (apart
from any rent assistance) shall not, for a period of up to 26 weeks,
cease to be payable by reason only of a temporary absence from
Australia. 2. Subject to the provisions of this Agreement, where New
Zealand pays:
(a) national superannuation;
(b) an invalid's benefit;
(c) a widow's benefit;
(d) an orphan's benefit; or
(e) a family benefit, by virtue of this Agreement, that benefit shall not,
for a period of up to 26 weeks, cease to be payable by reason only of
a temporary absence from New Zealand. 3. A carer's pension (apart from
any rent assistance) payable by virtue of this Agreement or otherwise
shall not, for a period of up to 26 weeks, cease to be payable by
reason only of a temporary absence of the beneficiary from Australia
in New Zealand. 4. Where a person who resides in Australia left New
Zealand with a bona fide intention to remain outside New Zealand for a
period of 26 weeks or less and continued to receive from New Zealand
national superannuation, an invalid's benefit, a widow's benefit, an
orphan's benefit or a family benefit after that person's departure
from New Zealand, subsequently decides to remain in Australia for
longer than 26 weeks, the competent authority for New Zealand shall
not establish an overpayment of such a benefit by reason of that
person's departure from New Zealand.
Article 15
Exclusion of New Zealand Benefits from Australian Income Test Where a benefit
is paid by Australia to a person who is in New Zealand and a benefit is also
paid by New Zealand to that person, the amount of the benefit paid by New
Zealand shall not be included in the income of that person for the purposes of
the social security laws of Australia.
Article 16
Recovery of Overpayments
1. Where:
(a) an amount paid by one of the Parties to a person in respect of a
benefit exceeds the amount, if any, that is properly payable, whether
by virtue of this Agreement or otherwise, in respect of that benefit;
and
(b) a benefit is payable by the other Party to that person, whether by
virtue of this Agreement or otherwise, the competent authority of that
other Party shall, if requested by the other competent authority to do
so, and in accordance with this Article, deduct the amount equivalent
to the excess payment referred to in subparagraph (a) from amounts due
in respect of the last-mentioned benefit. 2. The amount of an excess
payment referred to in paragraph 1 shall be the amount determined by
the competent authority of the Party by whom the excess payment was
made. 3. The rate of deductions made in accordance with paragraph 1
from amounts due in respect of a benefit, and any incidental or
related matters, shall be determined by the competent authority of the
Party by whom that benefit is payable, in accordance with the social
security laws of that Party. 4. In cases where excess payments cannot
be recovered by deductions from other benefits under paragraph 1, a
competent authority, if requested by the other competent authority,
shall assist the latter in endeavouring to arrange for repayment by
the recipient of those excess payments. 5. Amounts deducted by one of
the Parties in accordance with paragraph 1, and any amounts received
by that Party pursuant to arrangements referred to in paragraph 4,
shall be remitted to the other Party as agreed between the competent
authorities or in administrative arrangements made pursuant to Article
17. 6. In this Article, 'benefit' is not limited to those benefits
specified in Article 2.
Article 17
Administrative Arrangements 1. The competent authorities of the Parties shall
make whatever administrative arrangements are necessary from time to time in
order to implement this Agreement, and to enable benefits payable by one of
the Parties, whether by virtue of this Agreement or otherwise, to persons who
are residing in, or who are in, the territory of the other Party to be paid to
those persons on behalf of the first-mentioned Party by that other Party. 2.
Where arrangements of the kind referred to in paragraph 1 are required to be
made on a mutual basis, the competent authorities shall co-operate both in
regard to matters affecting the operation of both social security systems and
of each of them. 3. A benefit payable by one of the Parties by virtue of this
Agreement shall be paid by that Party without deduction for administrative
fees and charges. Article 18Exchange of Information1. The competent
authorities of the Parties shall exchange such information as is necessary for
the operation of this Agreement or of the social security laws of the Parties
concerning all matters arising under this Agreement or under those laws other
than those matters referred to in the social security laws of New Zealand as
'Contributions Towards Cost of Domestic Purposes Benefits for Solo Parents'
and 'Medical and Hospital Benefits and other Related Benefits'. 2. Any
information received by the competent authority of a Party pursuant to
paragraph 1 shall be disclosed only to persons or authorities (including
courts and administrative bodies) concerned with matters, including the
determination of appeals, arising under the provisions of this Agreement or
the social security laws of the Parties and shall be used for other purposes
or disclosed to other persons only with the prior consent of the competent
authority who provided the information. 3. In no case shall the provisions of
paragraphs 1 and 2 be construed so as to impose on the competent authority 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.
4. A Party shall not raise any charges against the other Party for
services of an administrative nature rendered by that first-mentioned
Party to the other in accordance with this Agreement or the
administrative arrangements made pursuant to Article 17, but that
other Party shall meet any costs or expenses which are reasonably
incurred for those services and are payable to another person or
organisation.
Article 19
Reviews and Appeals Any person who is affected by a decision of the competent
authority of a Party in relation to a matter arising by virtue of this
Agreement shall have the same rights to review by, or appeal to,
administrative and judicial bodies of that Party as are provided under the
domestic laws of that Party.
Article 20
Review of Agreement The Parties may agree at any time to review any of the
provisions of this Agreement and, in any case, shall, within the period of 2
years commencing on the date on which this Agreement comes into effect, review
the present limitation on continuation of payment by a Party of benefits to
persons who move outside the territory of the Party.
PART VI-FINAL PROVISIONS
Article 21
Entry into Force 1. This Agreement shall enter into force on the date on which
the Parties exchange notes through the diplomatic channel notifying each other
that the last of such things has been done as is necessary to give this
Agreement the force of law in Australia and in New Zealand, as the case may
be, and thereupon this Agreement shall have effect on and from the date
specified for that purpose in that exchange of notes. 2. Subject to paragraph
3, when this Agreement commences to have effect the Agreement on Social
Security between the Government of Australia and the Government of New
Zealand, signed at Melbourne on the Fifth day of October 1986, shall terminate
and persons who were receiving benefits under that 1986 Agreement shall
receive those benefits by virtue of this Agreement. 3. This Article shall not
affect the provisions of paragraph 2 of Article 24 of the Agreement on Social
Security between the Government of Australia and the Government of New Zealand
signed at Melbourne on the Fifth day of October 1986.
Article 22
Termination 1. Subject to paragraph 2, this Agreement shall remain in force
until the expiration of 12 months from the date on which either Party receives
from the other written notice through the diplomatic channel of the intention
of the other Party to terminate this Agreement. 2. In the event that this
Agreement is terminated in accordance with paragraph 1, 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, duly
authorised thereto, have signed this Agreement. Done in duplicate at
Canberra this 31st day of October 1988.
FOR THE GOVERNMENT FOR THE GOVERNMENT
OF AUSTRALIA: OF NEW ZEALAND:
BRIAN HOWE GEOFFREY PALMER".
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