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SOCIAL SECURITY LEGISLATION AMENDMENT ACT 1990 No. 6, 1991 - SCHEDULE 2
SCHEDULE 2 Section 83
New Schedule 6
" SCHEDULE 2 Section 65
AGREEMENT BETWEEN AUSTRALIA AND MALTA ON SOCIAL SECURITY Australia and Malta,
Wishing to strengthen the existing friendly relations between the two
countries, and Resolved to co-ordinate their social security systems; Have
agreed as follows:
PART 1
GENERAL PROVISIONS
ARTICLE 1
Interpretation 1. In this Agreement, unless the context otherwise requires:
. `applicable rate' means, in relation to Malta, the rate that would otherwise
have been payable to a claimant had the number of totalised contributions been
all paid or credited under the legislation of Malta;
. `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;
. `Competent Authority' means, in relation to Australia, the Secretary of the
Department of Social Security and, in relation to Malta, the Director of
Social Security;
. `Competent Institution' means, in relation to Australia the Competent
Authority for Australia and in relation to Malta, the Competent Authority for
Malta;
. `legislation' means, in relation to a Party, the laws specified in Article 2
in relation to that Party;
. `period of insurance' means, the period of contributions or any equivalent
period which has been or can be used to acquire the right to a benefit under
the legislation of Malta, but does not include any period deemed pursuant to
Article 9 to be a period of insurance;
. `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 7 to be a period in which that person was an
Australian resident;
. `territory' means, in relation to Australia, Australia as defined in the
legislation of Australia and in relation to Malta, Malta as defined in the
Constitution of Malta; and
. `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, applies to or affects:
(i) age pensions;
(ii) invalid pensions;
(iii) wives' pensions; and
(iv) pensions payable to widows; and
(b) in relation to Malta: the Social Security Act, 1987 as it provides
for, applies to or affects:
(i) contributory pensions in respect of retirement;
(ii) contributory pensions in respect of invalidity;
(iii) contributory pensions in respect of widowhood; and
(iv) non-contributory assistance and pensions. 2. Notwithstanding
the provisions of paragraph 1 the legislation of either Party
shall not include any laws made at any time 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. 4. In respect of non-contributory
assistance and pensions payable under the legislation of Malta,
a citizen of Australia shall have the same rights as a citizen
of Malta.
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 an insured person under the legislation of Malta, and,
where applicable, to other persons in regard to the rights they derive
from the person described above.
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.
PART II
PROVISIONS RELATING TO AUSTRALIAN BENEFITS
ARTICLE 5
Residence or Presence in Malta 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 the territory of Malta 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, or the territory of Malta 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 who has never
been an Australian resident.
ARTICLE 6
Spouse Related Australian Benefits For the purposes of this Agreement, a
person who receives from Australia 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 7
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 a 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 period of insurance, then for the
purposes of a 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. 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 period of insurance in two or more separate periods
that equals or exceeds in total the minimum period referred to in
subparagraph (a), the total of the periods of insurance 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
period of insurance 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 which a
person must have accumulated before paragraph 1 applies 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 6 months must be continuous; and
(b) for the purposes of an Australian benefit that is payable to an
Australian resident, no minimum period shall be required. 5. For the
purposes of a claim by a person for a pension payable to a widow, that
person shall be deemed to have accumulated a period of insurance for
any period for which her spouse accumulated a period of insurance but
any period during which the person and her spouse both accumulated
periods of insurance shall be taken into account once only. 6. Where a
person receives in Malta a contributory pension in respect of
retirement by virtue of this Agreement, Australia shall, for the
purposes of this Article, regard the period during which that person
receives that pension, up to the age of 65, as a period of insurance.
ARTICLE 8
Calculation of Australian Benefits 1. Subject to paragraph 2, where an
Australian benefit is payable, whether by virtue of this Agreement or
otherwise, to a person who is outside Australia the rate of that benefit shall
be determined according to the legislation of Australia but when assessing the
income of that person for the purposes of calculating the rate of the
Australian benefit only a proportion of any Maltese contributory pension in
respect of retirement, invalidity or widowhood which is received by that
person shall be regarded as income. That proportion shall be calculated by
multiplying the number of whole months accumulated by that person in a period
of residence in Australia (not exceeding 300) by the amount of that Maltese
benefit and dividing that product by 300. 2. A person referred to in paragraph
1 shall only be entitled to receive the concessional assessment of income
described in that paragraph for any period during which the rate of that
person's Australian benefit is proportionalised under the legislation of
Australia. 3. Where an Australian benefit is payable, whether by virtue of
this Agreement or otherwise to a person who is resident in the territory of
Malta, Australia shall disregard, when assessing the income of that person any
non-contributory assistance and pension paid to that person by Malta. 4.
Subject to the provisions of paragraph 5, where an Australian benefit is
payable only 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 Maltese benefit
received by that person;
(b) deducting the amount of the Maltese benefit received by that person
from the maximum rate of that Australian benefit; and
(c) applying to the remaining benefit obtained under subparagraph (b) the
relevant rate calculation set out in the legislation of Australia,
using as the person's income the amount calculated under subparagraph
(a). 5. Where a married person is, or both that person and his or her
spouse are, in receipt of a Maltese benefit or benefits, each of them
shall be deemed, for the purpose of paragraph 4 and for the
legislation of Australia, to be in receipt of one half of either the
amount of that benefit or the total of both of those benefits, as the
case may be. 6. If a person would receive an Australian benefit except
for the operation of paragraph 5 or except for that person's failure
to claim the benefit, then for the purposes of a claim by that
person's spouse for a payment under the legislation of Australia that
person shall be deemed to receive that benefit. 7. The reference in
paragraph 6 to a payment under the legislation of Australia to the
spouse of a person is a reference to a 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 MALTESE BENEFITS
ARTICLE 9
Totalisation for Malta 1. Where this Agreement applies and there is a period
of insurance that is:
(a) less than the period necessary to give a claimant entitlement to the
benefit claimed under the legislation of Malta; 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
period of insurance was credited shall be deemed to be a period of insurance.
2. For the purposes of this Article, where a period of insurance and a period
of residence in Australia coincide, the period of coincidence shall be taken
into account once only as a period of insurance. 3. The minimum period of
insurance to be taken into consideration for purposes of paragraph 1 shall be
52 paid contributions. However, subject to paragraph 5, where the period of
insurance, not being less than 52 paid contributions, does not entitle a
person to a Maltese benefit, but the period of insurance in Malta and the
period of residence in Australia together entitle such person to a Maltese
benefit, they shall be taken into account. 4. The provisions of this Article
shall not apply in the case of a Two-Thirds Pension (Retirement) or a
Survivor's Pension (Widowhood) unless:
(a) in the case of a Two-Thirds Pension, the person concerned would have
paid at least 156 contributions under the legislation of Malta after
the 22nd January, 1979; and
(b) in the case of a Survivor's Pension, the husband of the widow
concerned would have paid at least 156 contributions under the
legislation of Malta after the 22nd January, 1979. 5. For the purposes
of a claim by a person for a contributory widow's pension the
contributor, provided the contributor meets the requirements of
subparagraph 1 (b), shall be deemed to have also accumulated a period
of residence in Australia for any period for which the claimant
accumulated a period of residence in Australia but any period during
which the contributor and the claimant both accumulated periods of
residence in Australia shall be taken into account once only.
ARTICLE 10
Calculation of Maltese Benefits 1. Where Malta pays non-contributory
assistance or pension by virtue of this Agreement, the rate of that benefit
shall be determined according to the legislation of Malta. 2. Where a
contributory benefit is payable by Malta to a claimant by virtue of this
Agreement the rate of that benefit shall be calculated as follows:
(a) in the case of a pension in respect of retirement other than a
Two-Thirds Pension, by multiplying the applicable rate of that pension
attributable to the claimant by the number of reckonable contributions
(not exceeding 2400) on which that pension would have otherwise been
calculated under the legislation of Malta and dividing the product by
the number of totalised contributions aggregated under Article 9 (not
exceeding 2400);
(b) in the case of a Two-Thirds Pension, the rate of that pension shall be
calculated according to the following formula:
P.I. X 2 X (T1 + T2) X (C1 + C2)
( Y 10) (T1 T2)
--------------------------------
600 but that pension shall not be payable if the formula (T1 + T2) gives
( Y 10)
---------
2 a result that is less than 15 where: P.I. = the claimant's pensionable
income or re-assessed pensionable income (as the case may be) according to the
legislation of Malta; C1 = the number of reckonable contributions (not
exceeding 1000) during any period prior to the last 10 calendar years
immediately before retirement; C2 = the number of reckonable contributions
(not exceeding 500) within the last 10 calendar years immediately before
retirement; T1 = the number of totalised contributions (not exceeding 1000)
aggregated under Article 9 during any period prior to the last 10 calendar
years immediately before retirement; T2 = the number of totalised
contributions (not exceeding 500) aggregated under Article 9 within the last
10 calendar years immediately before retirement; and Y = the number of
reckonable years (not exceeding 20) prior to the last 10 calendar years
immediately before retirement.
(c) in the case of a pension in respect of invalidity, by multiplying the
applicable rate of that pension attributable to the claimant by the
number of reckonable contributions (not exceeding 2400) on which that
pension would have otherwise been calculated under the legislation of
Malta and dividing the product by the number of reckonable totalised
contributions aggregated under Article 9 (not exceeding 2400);
(d) in the case of a pension in respect of widowhood other than a
Survivor's Pension by multiplying the applicable rate of that pension
attributable to the claimant by the number of reckonable contributions
(not exceeding 2400) on which that pension would have otherwise been
calculated under the legislation of Malta relating to her late husband
and dividing the product by the number of totalised contributions
aggregated under Article 9 (not exceeding 2400); and
(e) in the case of a Survivor's Pension at 5/6 of the rate of pension
arrived at in accordance with the provisions of paragraph 2 (b). 3.
Any statutory pension additional rates that are applicable to certain
benefits covered by this Agreement that are payable under the
legislation of Malta, payment of which is also linked to a yearly
contribution average, shall be calculated in the same manner as that
indicated in paragraph 2, as the case may require. 4. Where Malta pays
a Maltese benefit to a person only by virtue of the Agreement it shall
deduct any statutory pension deductions that would be deducted if
those pensions were paid solely under the legislation of Malta
provided that any service pension for war service or wife's service
pension paid to that person by Australia as defined in and payable
under its Veterans' Entitlement Act 1986 shall not for the purposes of
this Agreement or otherwise under the legislation of Malta be treated
as a service pension as defined in the legislation of Malta. 5. Any
pension arrived at in accordance with paragraphs 2, 3 and 4 shall be
rounded up to the nearest whole cent. 6. In this Article `reckonable
contribution' and `reckonable year' shall have the meanings given to
them in the legislation of Malta.
PART IV
MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS
ARTICLE 11 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 an
Administrative Arrangement made pursuant to Article 15 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 Act 1947 of
Australia as amended from time to time. 4. In relation to Malta, the reference
in paragraph 2 to an appeal document is a reference to a document concerning
an appeal that may be made to the Umpire for the purposes of the Social
Security Act, 1987 of Malta as amended from time to time.
ARTICLE 12
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 period of insurance; 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.
Where:
(a) a claim is made for a benefit payable by one of the Parties by virtue
of this Agreement; and
(b) there are reasonable grounds for believing that the claimant may also
be entitled, whether by virtue of this Agreement or otherwise, to a
benefit that is payable by the other Party and that, if paid, would
affect the amount of the first-mentioned benefit, that first-mentioned
benefit shall not be paid until a claim is duly lodged for payment of
the second-mentioned benefit and the first-mentioned benefit shall not
continue to be paid if the claim for the second-mentioned benefit is
not actively pursued. 4. Where:
(a) a benefit is paid or payable by a Party to a person in respect of a
past period;
(b) for all or part of that 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 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 throughout that past
period shall be a debt due by that person to the other Party; and
(e) the other Party may determine that the amount, or any part, of that
debt may be deducted from future payments of a benefit payable by that
Party to that person. 5. Where the first Party has not yet paid the
arrears of benefit described in subparagraph 4 (a) to the person:
(a) that Party shall, at the request of the other Party, pay the amount of
the debt described in subparagraph 4 (d) to the other Party and shall
pay any excess to the person; and
(b) any shortfall in those arrears may be recovered by the other Party
under subparagraph 4 (e). 6. The Competent Institution receiving a
request under paragraph 5 shall take the action set out in an
Administrative Arrangement made pursuant to Article 15, to recoup the
amount of the overpayment and to transfer it to the other Competent
Institution. 7. A reference in paragraphs 3, 4 and 5 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 Malta, means any pension,
benefit, allowance or assistance that is payable under the Social
Security Act, 1987 of Malta.
ARTICLE 13
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:
(i) age pensions;
(ii) invalid pensions;
(iii) wives' pensions;
(iv) pensions payable to widows who were widowed while both they and
their husbands were Australian residents;
(v) class B widows' pensions; and
(b) for Malta: contributory pensions in respect of retirement, invalidity
and widowhood. 2. A pension payable to a widow whether payable by
virtue of this Agreement or otherwise, shall be paid by Australia in
the territories of both Parties with no limitation by time. 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 party that imposes
restrictions described in paragraph 3 shall inform the other Party of
those restrictions within one calendar month of their imposition and
shall adopt the measures described in paragraph 3 within 3 months of
the imposition of those restrictions. If the other Party is not so
informed or if the necessary measures are not adopted within the set
time the other Party may treat such a failure as a material breach of
the Agreement for the purposes of Article 60 of the Vienna Convention
on the Law of Treaties. 5. A benefit payable by a Party by virtue of
this Agreement to a person outside the territory of that Party shall
be paid without deduction for government administrative fees and
charges for processing and paying that benefit. 6. 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 14
Exchange of Information and Mutual Assistance 1. The Competent Authorities and
Competent Institutions responsible for the application of this Agreement:
(a) shall communicate to each other any information necessary for the
application of this Agreement or of the Social Security Laws of the
Parties;
(b) shall lend their good offices and furnish assistance to one another
with regard to the determination or payment of any benefit under this
Agreement or the legislation to which this Agreement applies as if the
matter involved the application of their own legislation;
(c) shall communicate to each other, as soon as possible, all information
about the measures taken by them for the application of this Agreement
or about changes in their respective legislation in so far as these
changes affect the application of this Agreement; and
(d) 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 an Administrative Arrangement made pursuant
to Article 15. 2. The assistance referred to in paragraph 1 shall be
provided free of charge, subject to any Administrative Arrangement
made pursuant to Article 15. 3. Unless disclosure is required under
the laws of a Party, any information about an individual which is
transmitted in accordance with this Agreement to a Competent Authority
or a Competent Institution of that Party by a Competent Authority or a
Competent Institution of the other Party is confidential and shall be
used only for purposes of implementing this Agreement and the
legislation to which this Agreement applies. 4. In no case shall the
provisions of paragraphs 1 and 3 be construed so as to impose on the
Competent Authority or Competent Institution of a Party the
obligation:
(a) to carry out administrative measures at variance with the laws or the
administrative practice of that Party 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 Party or the other
Party. 5. In the application of this Agreement, the Competent
Authority and the Competent Institution of a Party may communicate
with the other in the official language of that Party.
ARTICLE 15
Administrative Arrangement The Competent Authorities of the Parties shall make
whatever Administrative Arrangement is necessary from time to time in order to
implement this Agreement.
ARTICLE 16
Resolution of Difficulties 1. 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.
2. The Parties shall consult promptly at the request of either concerning
matters which have not been resolved by the Competent Authorities in
accordance with paragraph 1. 3. Any dispute between the Parties concerning the
interpretation of this Agreement which has not been resolved or settled by
consultation in accordance with paragraph 1 or 2 shall, at the request of
either Party, be submitted to arbitration. 4. Unless the Parties mutually
determine otherwise, the arbitral tribunal shall consist of three arbitrators,
of whom each Party shall appoint one and the two arbitrators so appointed
shall appoint a third who shall act as president; provided that if the two
arbitrators fail to agree, the President of the International Court of Justice
shall be requested to appoint the president. 5. The arbitrators shall
determine their own procedures. 6. The decision of the arbitrators shall be
final and binding. 7. Unless the Parties otherwise agree, the place of
arbitration shall be in the territory of the Party which did not raise the
matter in dispute.
ARTICLE 17
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 18 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 duplicate at Canberra this fifteenth day of
August 1990. FOR AUSTRALIA: Graham Richardson FOR MALTA: Louis Galea".
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