Commonwealth Numbered Acts

SOCIAL SECURITY LEGISLATION AMENDMENT ACT 1992 No. 81, 1992 - SCHEDULE 3

                            SCHEDULE 3           Section 81

NEW SCHEDULE TO SOCIAL SECURITY ACT 1991
AGREEMENT
BETWEEN
AUSTRALIA
AND
THE REPUBLIC OF AUSTRIA
ON SOCIAL SECURITY AUSTRALIA AND THE REPUBLIC OF AUSTRIA, 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
INTERPRETATION AND SCOPE
GENERAL PROVISIONS
ARTICLE 1
Interpretation 1. In this Agreement:

   (a)  "national" means, in relation to Australia, an Australian citizen;
        and, in relation to Austria, an Austrian citizen;

   (b)  "legislation" means, in relation to Australia, the law specified in
        subparagraph 1(a) of Article 2; and, in relation to Austria, the laws,
        regulations and statutory instruments which relate to the branches of
        social security specified in subparagraph 1(b) of Article 2;

   (c)  "competent authority" means in relation to Australia, the Secretary to
        the Department of Social Security; and, in relation to Austria, the
        Federal Minister responsible for the application of the legislation
        specified in subparagraph 1(b) of Article 2;

   (d)  "institution" means, in relation to Australia, the Department of
        Social Security; and, in relation to Austria, the institution
        responsible for the application of the Austrian legislation;

   (e)  "competent institution" means, in relation to Australia, the
        Department of Social Security; and, in relation to Austria, the
        institution competent under the Austrian legislation to deal with the
        matter in question;

   (f)  "period of Australian working life residence", 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 6 to be a
        period in which that person was an Australian resident;

   (g)  "period of insurance in Austria" means a period of insurance defined
        as such in the Austrian legislation;

   (h)  "benefit" means, in relation to a Party, a benefit, pension or
        allowance 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, pension or allowance;

   (i)  "carer pension" means, in relation to Australia, a carer pension
        payable to a partner under the legislation of Australia;

   (j)  "widowed person" means, in relation to Australia, a person who:

   (i)  stops being a married person or becomes a single person because of the
        death of the person's husband or wife; or

   (ii) is a class B widow because of the death of her husband or because she
        is a dependent female, but does not include a person who has a new
        partner;

   (k)  "refugee" means a person defined as a refugee in Article 1 of the
        Convention relating to the Status of Refugees, dated 28= July 1951,
        and the Protocol to that Convention, dated 31= January 1967;

   (l)  "stateless person" means a person defined as a stateless person in
        Article 1 of the Convention relating to the Status of Stateless
        Persons, dated 28 September 1954. 2. In the application of this
        Agreement, any term not defined in this Article shall, unless the
        context otherwise requires, have the meaning assigned to it by the
        legislation of either Party.
ARTICLE 2
Legislative Scope 1. Subject to paragraph 2, this Agreement shall apply to:

   (a)  in relation to Australia: the Social Security Act  1991 insofar as the
        Act provides for, applies to or affects:

   (i)  age pensions,

   (ii) invalid pensions,

   (iii) wife pensions,

   (iv) carer pensions, and

   (v)  benefits payable to widowed persons; and

   (b)  in relation to Austria the legislation concerning pension insurance
        with the exception of the insurance for notaries. 2. Except as
        otherwise provided in paragraph 3 this Agreement shall also apply to
        any legislation which supersedes, replaces, amends, supplements or
        consolidates the legislation specified in paragraph 1. 3.
        Notwithstanding the provisions of paragraph 1:

   (a)  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 agreement on social security; and

   (b)  this Agreement shall not affect any other agreement on social security
        which Austria has concluded with a third State, except as it contains
        provisions relating to the apportionment of insurance burdens.
ARTICLE 3
Personal Scope This Agreement shall apply without any restriction based on
nationality to any person who:

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

   (b)  is or has been subject to the Austrian legislation, and where
        applicable, to any other person with respect to the rights he or she
        derives from such a person described in subparagraph (a) or (b).
ARTICLE 4
Equality of Treatment 1. Unless otherwise provided in this Agreement,
nationals of one Party shall, in the application of the legislation of the
other Party, receive equal treatment with the nationals of that other Party.
2. Benefits under the legislation of one Party shall be granted to nationals
of the other Party resident outside the territories of both Parties, under the
same conditions and to the same extent as they are granted to the nationals of
the first Party who reside outside the territories of the Parties. 3.
Paragraph 1 shall not apply to the provisions of the Austrian legislation
concerning:

   (a)  the participation of insured persons and employers in the
        administration of institutions and associations as well as
        adjudication in the field of social security;

   (b)  the apportionment of insurance burdens resulting from agreements with
        third States; or

   (c)  the insurance of persons employed at a diplomatic mission or consular
        post of Austria in a third State or by a member of such a mission or
        post. 4. Paragraph 1 shall apply with regard to the provisions of
        Austrian legislation concerning the taking into account of periods of
        war service and periods considered as such only to Australian
        nationals who were Austrian nationals immediately before 13 March
        1938.
ARTICLE 5
Equivalence of Territories 1. Unless otherwise provided in this Agreement any
provision of the legislation of a Party under which qualification for or
payment of a benefit is dependent on a person being a resident of, and/or
present in the territory of that Party shall not apply to nationals of either
Party, refugees or stateless persons, or other persons who derive rights from
the foregoing, who are resident in the territory of either Party and present
in the territory of either Party. 2. Benefits of a Party are payable at the
request of the beneficiary in the territory of the other Party. 3. Where the
legislation of a Party provides that a benefit is payable outside the
territory of that Party, then that benefit, when payable by virtue of this
Agreement, is also payable outside the territories of both Parties. 4. In
relation to Australia:

   (a)  Paragraph 1 shall apply without regard to nationality.

   (b)  Paragraph 1 shall not apply to a claimant for a wife pension or carer
        pension who has never been an Australian resident or to rental
        allowance.

   (c)  Where qualification for an Australian benefit is subject to
        limitations as to time, then references to Australia in those
        limitations shall be read also as references to the territory of
        Austria.

   (d)  Where a person would be qualified under the legislation of Australia
        or by virtue of this Agreement for an Australian benefit except for
        not being an Australian resident and in Australia on the date on which
        the claim for that benefit is lodged but:

   (i)  is an Australian resident or residing in the territory of Austria or a
        third State with which Australia has concluded an agreement on social
        security that includes provisions for cooperation in the assessment
        and determination of claims for benefits; and

   (ii) is in Australia, or in the territory of Austria 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. 5. As
        regards the Austrian legislation, paragraph 1 shall not apply to the
        compensatory supplement (Ausgleichszulage).
PART II
PROVISIONS CONCERNING AUSTRALIAN BENEFITS
ARTICLE 6 1. Where a person to whom this Agreement applies has claimed an
Australian benefit under this Agreement and has, without the application of
this Agreement, 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 Australian working life residence equal to or greater than
        the minimum period identified in accordance with paragraph= 4 for that
        person and has accumulated a period of insurance in Austria, then for
        the purposes of a claim for that Australian benefit, that period of
        insurance in Austria shall be deemed, only for the purposes of this
        Article for meeting any period required for qualification 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 Austria 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
        in Austria 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 in Austria 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
        who is not an Australian resident, the minimum period shall be twelve
        months 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, no minimum. 5. For the purposes of a claim by a
        person for a pension payable to a widowed person, that person shall be
        deemed to have accumulated a period of insurance in Austria for any
        period for which his or her partner accumulated a period of insurance
        in Austria but any period during which the person and his or her
        partner both accumulated a period of insurance in Austria shall be
        taken into account once only.
ARTICLE 7 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
the territory of 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 Austrian benefit 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 Australian working life residence (not exceeding 300) by the amount of that
Austrian 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 by virtue of this
Agreement or otherwise to a person who is in Austria, any compensatory
supplement or social assistance and similar means-tested payment paid by
Austria to that person shall be disregarded by Australia in computing that
person's income for the purposes of the legislation of Australia or the
application of this Agreement. 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 Austrian benefit
        received by that person;

   (b)  deducting the amount of the Austrian 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 the rate of a benefit calculated in accordance with
        paragraph 4 is less than the rate of that benefit which would be
        payable under paragraphs 1, 2 and 3 if the person concerned were
        outside Australia, the first- mentioned rate shall be increased to an
        amount equivalent to the second-mentioned rate. 6. Where a married
        person is, or both that person and his or her partner are, in receipt
        of an Austrian benefit or benefits, each of them shall be deemed, for
        the purposes of paragraph 4 and for the legislation of Australia, to
        be in receipt of one half of either the amount of that benefit or
        total of both of those benefits, as the case may be. 7. For the
        purposes of paragraph 5, a comparison of the rates of the benefits
        shall be made as at:

   (a)  the date of the first pension pay day occurring after the date from
        which the benefit is payable; and

   (b)  each anniversary of that pension pay day for so long as the person
        concerned is entitled to the benefit; using, in that comparison, the
        number of months of the period of Australian working life residence
        accumulated by the person at the date as at which the comparison is
        made.
ARTICLE 8 A person who receives from Australia an Australian benefit due to
the fact that the partner of that person receives, by virtue of this
Agreement, another Australian benefit shall, for the purposes of this
Agreement, be deemed to receive that first-mentioned benefit by virtue of this
Agreement.
PART III
PROVISIONS CONCERNING AUSTRIAN BENEFITS
ARTICLE 9 If a person has completed periods of insurance in Austria and
periods of Australian working life residence, those periods, insofar as they
do not overlap, shall be added together for the purpose of qualification for
an Austrian benefit.
ARTICLE 10 1. If a person who has completed periods of insurance in Austria
and periods of Australian working life residence, or the survivor of such a
person, is claiming a benefit, the competent institution for Austria shall
determine the amount of the benefit in the following manner:

   (a)  the institution shall determine, in accordance with the Austrian
        legislation, whether the person concerned has an entitlement to a
        benefit by adding together the periods as provided in Article 9;

   (b)  if entitlement to a benefit is determined to exist, the institution
        shall first calculate the theoretical amount of the benefit which
        would be payable if all the periods completed under the legislation of
        both Parties had been completed exclusively under the Austrian
        legislation; in cases where the amount of the benefit is independent
        of the duration of the period of insurance, this amount shall be taken
        to be the theoretical amount; and

   (c)  the institution shall then calculate the partial benefit payable on
        the basis of the amount calculated in accordance with the provisions
        of subparagraph (b) in proportion to the ratio between the duration of
        the periods of insurance to be taken into consideration under the
        Austrian legislation and the total duration of the periods to be taken
        into consideration under the legislation of both Parties. 2. Where the
        periods of insurance to be taken into consideration under the Austrian
        legislation for the purpose of calculating the amount of a benefit are
        in aggregate less than twelve months, no benefit under that
        legislation shall be paid. However, the preceding sentence shall not
        apply if the entitlement to that benefit has been acquired under the
        Austrian legislation exclusively on the basis of periods of insurance
        completed under that legislation.
ARTICLE 11 The competent Austrian institution shall apply Articles 9 and 10
according to the following rules: 1. In determining the institution
responsible for paying a benefit, only periods of insurance in Austria shall
be taken into consideration. 2. Periods of Australian working life residence,
during which the person concerned was employed or self-employed, shall be
treated as periods of contributions. 3. Articles 9 and 10 shall apply neither
to the conditions of entitlement to nor to the payment of the miners' long
service allowance under the miners' pension insurance. 4. For the application
of paragraph 1 of Article 10, the following shall apply:

   (a)  periods during which the insured person has been entitled to an age
        pension or invalid pension under the legislation of Australia shall be
        treated as if they were neutral periods;

   (b)  the basis of assessment shall be determined exclusively on periods of
        insurance in Austria;

   (c)  the contributions for supplementary insurance as well as the miners'
        supplementary benefit, the helpless person's allowance and the
        compensatory supplement shall be disregarded. 5. For the application
        of subparagraphs 1(b) and (c) of Article 10, overlapping periods under
        the legislation of the two Parties shall be taken into consideration
        as if they did not overlap. 6. If, for the application of subparagraph
        1(c) of Article 10, the total duration of the periods to be taken into
        consideration under the legislation of both Parties exceeds the
        maximum number of months of insurance specified under the Austrian
        legislation for the calculation of the rate of increments, the partial
        pension payable shall be calculated in proportion to the ratio between
        the duration of the periods of insurance to be taken into
        consideration under the Austrian legislation and the above-mentioned
        maximum number of months of insurance. 7. For the calculation of the
        helpless person's allowance, subparagraphs 1(b) and (c) of Article 10
        shall apply; Article 13 shall apply accordingly. 8. The amount
        calculated according to subparagraph 1(c) of Article 10 shall be
        increased, where applicable, by the increments for contributions for
        supplementary insurance as well as the miners' supplementary benefit,
        the helpless person's allowance and the compensatory supplement. 9. If
        the award of benefits under the miners' pension insurance depends on
        the completion of essentially mining activities, within the meaning of
        the Austrian legislation, in specific undertakings, then only those
        periods of Australian working life residence during which the person
        was employed in a similar occupation in similar undertakings shall be
        taken into consideration. 10. The special payments shall be payable in
        the same amount as the Austrian partial benefit; Article 13 shall
        apply accordingly.
ARTICLE 12 1. Where entitlement to a benefit exists under the Austrian
legislation without the application of Article 9, the competent Austrian
institution shall pay the pension which would be payable exclusively on the
basis of the periods of insurance to be taken into consideration under that
legislation, provided there is no entitlement to a corresponding benefit under
the legislation of Australia. 2. The pension determined in accordance with
paragraph 1 shall be recalculated in accordance with the provisions of Article
10 as soon as entitlement arises to a corresponding benefit under the
legislation of Australia. This recalculation shall have effect from the date
on which the benefit under the legislation of Australia becomes payable. The
irrevocability of previous decisions shall not prevent this recalculation.
ARTICLE 13 If a person is entitled to a benefit under the Austrian legislation
without the application of Article 9, and if such a benefit would be greater
than the total of the Austrian benefit calculated in accordance with
subparagraph 1(c) of Article 10 and the corresponding Australian benefit, the
competent Austrian institution shall pay, as the particial benefit, its
benefit so calculated increased by the difference between such total and the
benefit which would be payable if the Austrian legislation alone were applied.
PART IV
MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS
ARTICLE 14
Lodgement of Documents 1. The date on which a claim, notice or appeal
concerning the determination or payment of a benefit under the legislation of
a Party is lodged with an authority, institution or other competent body 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 an authority,
institution or other competent body of the first Party. 2. Any claim for a
benefit under the legislation of a Party shall be considered to be a claim for
the corresponding benefit under the legislation of the other Party for which
the applicant may be qualified if the applicant provides information at the
time of claim indicating that the person on whose record benefits are claimed
has completed relevant periods of residence or of insurance under the
legislation of the other Party and:

   (a)  the claim is lodged with the institution of the other Party; or

   (b)  the claim is lodged with the institution of the first Party and that
        institution sends the claim within three months of its lodgement with
        that institution to the competent institution of the other Party. 3.
        In the cases to which paragraphs 1 and 2 of this Article apply, the
        body to which the submission has been made shall forward the claim,
        notice or appeal without delay to the corresponding competent body of
        the other Party.
ARTICLE 15
Advance Payments and Overpayments 1. Where an Austrian institution has made an
advance payment to a person for any period and arrears of a corresponding
benefit become payable for the same period under the legislation of Australia,
the competent institution of Australia shall deduct from those arrears the
amount paid by way of advance payment and shall transfer the amount so
deducted to the Austrian institution. Where an Austrian institution has
overpaid a benefit for any period for which the competent institution of
Australia afterwards becomes liable to pay a corresponding benefit, the
overpayment shall be regarded, for the purpose of the first sentence, as an
advance payment. 2. Where

   (a)  an Austrian benefit is paid or payable to a person in respect of a
        past period;

   (b)  for all or part of that period, an Australian benefit has been paid to
        that person; and

   (c)  the amount of the Australian benefit would have been reduced had the
        Austrian benefit been paid during that period;
then

   (d)  the amount of the Australian benefit that would not have been paid had
        the Austrian benefit described in subparagraph (a) been paid on a
        periodical basis throughout that past period, shall be a debt due by
        that person to the Commonwealth of Australia; and

   (e)  Australia may determine according to the legislation of Australia that
        the amount or any part of that debt may be deducted from future
        payments of Australian benefit payable to that person. 3. Where an
        Austrian institution has not yet paid the benefit described in
        subparagraph 2(a) to the person:

   (a)  the Austrian institution shall, at the request of the competent
        authority of Australia pay the amount of the benefit necessary to meet
        the debt described in subparagraph 2(d) to the competent institution
        of Australia and shall pay any excess to the person; and

   (b)  any shortfall may be recovered by the competent authority of Australia
        under subparagraph 2(e).
ARTICLE 16
Payment of Benefits 1. The benefit-paying institution of a Party may discharge
its obligations under this Agreement in the national currency of that Party.
2. A benefit payable by a Party by virtue of this Agreement shall be paid by
that Party without deduction for administrative fees and charges.
ARTICLE 17
Administrative Arrangements and Mutual Assistance 1. The competent authorities
of the Parties shall, by means of an Arrangement, establish the administrative
measures necessary for the application of this Agreement. 2. The competent
authorities shall inform each other of laws that amend, supplement or replace
the legislation of their respective Parties. 3. The competent authorities and
institutions of the Parties shall assist each other, including by the
communication of any information, in applying the legislation specified in
Article 2 and this Agreement, as if they were applying their own legislation.
With the exception of cash expenditures relating thereto, such assistance
shall be provided free of charge. 4. The laws of a Party concerning
confidentiality shall apply to any information about an individual which is
transmitted in accordance with this Agreement to that Party by the other
Party. Such information shall be used only for purposes of applying this
Agreement or the legislation of a Party. 5. The competent authorities of the
Parties shall, in order to facilitate the application of this Agreement,
particularly for the creation of a simple and fast liaison between the
institutions concerned, establish liaison agencies. 6. The institutions and
the competent authority of one Party may not reject claims or other documents
submitted to them by reason only of the fact that they are written in an
official language of the other Party. 7. If the competent institution of one
Party requires an applicant or beneficiary who lives in the territory of the
other Party to undergo a medical examination, such examination shall, at the
request of that institution, be arranged or carried out by the institution of
the latter Party at its expense.
ARTICLE 18
Exemption from Taxes and from Authentication 1. Any exemption or reduction
provided for in the legislation of one Party for taxes, stamp duty, legal dues
or registration fees for certificates or documents which have to be submitted
for the application of this legislation shall be extended also to the
respective certificates or documents which must be submitted for the
application of this Agreement or the legislation of the other Party. 2.
Documents and certificates of any kind which must be submitted for the
application of this Agreement shall not require authentication.
ARTICLE 19
Resolution of Difficulties 1. Disagreements arising in connection with the
application of this Agreement shall, as far as possible, be resolved by mutual
agreement between the competent authorities of the Parties. 2. If any such
disagreement has not been resolved within a period of six months, either Party
may submit the matter to binding arbitration by an arbitral body whose
composition and procedure shall be agreed upon by the Parties.
PART V
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 20
Transitional Provisions 1. This Agreement shall not establish any entitlement
to payment of a benefit for a period before its entry into force. 2. In
determining entitlement to a benefit under this Agreement, periods of
insurance in Austria and periods as an Australian resident completed before
the entry into force of this Agreement shall also be taken into consideration.
3. Subject to paragraph 1, this Agreement shall also apply to contingencies
which are relevant to an entitlement which occurred before its entry into
force, insofar as previously determined entitlements have not been settled by
lump-sum payments. If in such cases the claim for a benefit which is payable
only by virtue of this Agreement is submitted within one year from the date of
entry into force of this Agreement, the benefit shall be determined and paid
from that date; otherwise the benefit shall be paid from the date determined
under the legislation of each Party. 4. Subject to the legislation of either
Party this Agreement shall not result in any reduction in the amount of any
benefit to which entitlement was established prior to its entry into force.
ARTICLE 21
Protection of Existing Rights This Agreement shall not affect any existing
rights under Austrian legislation of any person who has suffered disadvantages
in the field of social security because of political or religious reasons or
by reason of descent.
ARTICLE 22
Entry into Force and Termination 1. This Agreement shall enter into force on
the first day of the third month following the month in which notes are
exchanged by the Parties through the diplomatic channel notifying each other
that all matters as are necessary to give effect to this Agreement have been
finalised. 2. Subject to paragraph 3, this Agreement shall remain in force
until the expiration of twelve 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. 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 expire 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 two copies at Canberra this first day of
        April, 1992 in the English and German languages, each text being
        equally authoritative. FOR AUSTRALIA:(WSFOR THE REPUBLIC OF AUSTRIA:
        NEAL BLEWETT(WSWALTER HIETSCH.
NOTES ABOUT SECTION HEADINGS IN THE
SOCIAL SECURITY ACT 1991 1. On the day on which this Act receives the Royal
Assent, the heading to section 665 is altered by omitting "Claim" and
substituting "Need for a claim". 2. On the day on which this Act receives the
Royal Assent, the heading to section 1034AA is altered by omitting "child
disability allowance" and substituting "double orphan pension". 3. On the day
on which this Act receives the Royal Assent, the heading to section 1229 is
altered by omitting "Penalty" and substituting "Additional amount".