Commonwealth Numbered Acts

SOCIAL SECURITY AND VETERANS' AFFAIRS LEGISLATION AMENDMENT ACT 1990 No. 56, 1990 - SCHEDULE

SCHEDULE
Section 23
New Schedule 5
SCHEDULE 5
Section 65
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, a
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 t
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
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
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 receip
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 docume
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 ArrangementsThe 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