Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote See section 5.
AGREEMENT BETWEEN AUSTRALIA
AND SPAIN ON SOCIAL SECURITY
The Government of Australia and the Government of the Kingdom of Spain (hereinafter "the Parties"),
Wishing to strengthen the existing friendly relations between the two countries,
Considering it appropriate to review and replace the Agreement between Spain and Australia on Social Security signed on 10 February 1990 in order to incorporate current laws, and
Acknowledging the need to coordinate further the operation of their respective social security systems so as to ensure access by people who move between Australia and Spain;
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 payment" as a benefit under this Agreement means a carer payment for a person in Spain who is caring for a partner who is in receipt of an Australian age pension or disability support pension for the severely disabled and who is also in Spain;
"Competent Authority" means, in relation to Australia, the Secretary to the Department responsible for the legislation in sub - paragraph 1(a) of Article 2, and, in relation to Spain, the Ministry of Labour and Social Affairs;
"Competent Institution" means, in relation to Australia, the institution or agency responsible for the administration of the legislation of Australia and, in relation to Spain, the institution responsible for the application of the legislation of Spain;
"legislation" means, in relation to Australia, the laws specified in subparagraph 1(a) of Article 2 and in relation to Spain, the laws specified in subparagraph 1(b) of Article 2;
"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 9 to be a period in which that person was an Australian resident;
"Spanish creditable period" means the period defined as such in the legislation of Spain as well as any period considered as such under that legislation as an equivalent period but does not include any period considered under paragraph 1 of Article 11 as a Spanish creditable period;
"spouse", in relation to Australia, means a partner;
"widowed person" means, in relation to Australia, a de jure widow or widower but does not include a widow or widower who has a partner.
2. In the application of this Agreement by a Party, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the legislation of that Party.
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 Acts forming the social security law in so far as the law provides for and in relation to the following benefits:
(i) age pension;
(ii) disability support pension for the severely disabled;
(iii) wife pension;
(iv) carer payment;
(v) pensions payable to widowed persons;
(vi) double orphan pension;
(vii) additional child amount; and
(b) in relation to Spain:
the legislation concerning the social security system in as far as it concerns the following benefits:
(i) cash benefits for temporary incapacity for work in cases of ordinary illness, or non - work related accident;
(ii) cash benefits for maternity and risk during pregnancy;
(iii) benefits for permanent incapacity for ordinary illness and non - work related accident, retirement, death and survivorship;
(iv) family benefits for a dependent child;
(v) unemployment benefits; and
(vi) work accidents and occupational diseases.
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.
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
Portability of benefits
1. Subject to paragraph 4, benefits of one Party when payable under this Agreement will be paid in the other Party.
2. Where the legislation of a Party provides or allows that a benefit is payable outside Australia or Spain, as the case may be, then that benefit, when payable by virtue of this Agreement, is also payable in a third country.
3. Where qualification for a benefit of one Party is subject to limitations as to time, then references to that Party in those limitations shall be read also as references to the other Party when that benefit is payable by virtue of this Agreement.
4. Temporary incapacity, maternity and risk during pregnancy benefits, unemployment benefits and non - contributory benefits of the Spanish social security system will be paid to the beneficiaries as long as they reside in Spain.
5. Where a double orphan pension would be payable to a person under the legislation of Australia, in respect of a young person whose sole surviving parent died while that young person was an Australian resident, if that person and that young person were inhabitants of Australia, that pension shall, subject to the provisions of those laws, be payable while that person and that young person are residents of Spain.
PART II
PROVISIONS OF SPANISH APPLICABLE LEGISLATION
ARTICLE 6
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 proposed work does not exceed 5 years.
2. If, owing to unforseen circumstances, the period of the work extends beyond 5 years, this extension may be recognised by the Competent Authority of Spain.
PART III - PROVISIONS RELATING TO AUSTRALIAN BENEFITS
ARTICLE 7
Residence or Presence in Spain or a Third State
1. Where a person would be qualified for a benefit under the legislation of Australia or under this Agreement except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:
(a) is an Australian resident or residing in Spain or a third country with which Australia has implemented an agreement that includes provision for cooperation in the lodgement and determination of claims for benefits; and
(b) is in Australia, Spain or that third country,
that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purpose of lodging that claim, to be an Australian resident and in Australia.
2. The requirement for a person to have been an Australian resident at some time shall not apply to a person who claims double orphan pension.
ARTICLE 8
Partner - related Australian Benefits
1. For the purposes of this Agreement, a person who receives an Australian wife pension due to the fact that the partner of that person receives by virtue of this Agreement another Australian benefit, shall be deemed to receive that wife pension by virtue of this Agreement.
2. If a person is receiving a carer payment under this Agreement, references to Australia in the provisions relating to qualification for and payability of carer payment under the legislation of Australia shall be read also as references to Spain.
ARTICLE 9
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 that person, on that ground, under the legislation of Australia for that benefit; and
(b) a period of Australian working life residence equal to or greater than the minimum period identified for that person in accordance with paragraph 4; and
(c) a Spanish creditable period,
then that Spanish creditable period shall be deemed to be a period in which that person was an Australian resident
- only if that Spanish creditable period is considered by Spain to continue to be a Spanish creditable period at the time of totalisation; and
- only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia.
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 Australian working life residence to be taken into account for the purposes of paragraph 1 shall be as follows:
(a) for the purposes of an Australian benefit 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 payable to an Australian resident there shall be no minimum period of residence in Australia.
ARTICLE 10
Calculation of Australian Benefits
1. Subject to the provisions of this Article when an Australian benefit other than double orphan pension is payable under the Agreement to a person 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, benefits paid or due under the legislation of Spain should be assessed in the following way:
(a) Australia shall disregard any income - tested:
(i) Spanish supplement to the minimum contributory social security pension;
(ii) Spanish family payment for dependent children of pensioners;
(iii) non - contributory benefits from the Spanish social security system; and
(b) only a proportion of any other Spanish benefit shall be assessed as income. That proportion shall be calculated by multiplying the number of whole months of Australian working life residence used for that person (but not exceeding 300) by the amount of that other Spanish benefit and by dividing the result by 300.
2. A person who is in receipt of an Australian benefit under the legislation of Australia, shall be entitled to the concessional assessment of income set out in paragraph 1 of this Article for any period during which the rate of that person's Australian benefit is proportionalised under the legislation of Australia.
3. The provisions in paragraphs 1 and 2 shall continue to apply for 26 weeks where a person comes temporarily to Australia.
4. Subject to the provisions of this Article, where an Australian benefit other than a double orphan pension is payable only by virtue of this Agreement to a person who is in Australia and until the person becomes eligible under Australian domestic legislation the 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 Spanish benefit that person is entitled to receive;
(b) deducting the amount of that Spanish benefit which that person is entitled to receive from the maximum rate of that Australian benefit; and
(c) applying to the Australian benefit remaining, after the application of sub - paragraph (b), the relevant rate calculation set out in the legislation of Australia using as the person's income the amount calculated under sub - paragraph (a).
5. Where a member of a couple is, or both that person and his or her partner are entitled to a Spanish benefit or benefits, each of them shall be deemed, for the purposes of paragraphs 1 and 4 and for the legislation of Australia, to receive one half of the amount of the benefit or of the total of the two benefits as the case may be.
6. The provisions in paragraph 4 shall continue to apply for 26 weeks where a person departs temporarily from Australia.
PART IV - APPLICATION OF SPANISH LEGISLATION
ARTICLE 11
Totalisation 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 Australian working life residence 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 Australian working life residence coincide, the period of coincidence shall be taken into account once only as a Spanish creditable period.
3. For the purposes of paragraph 1, at least one day as a Spanish creditable period shall be required.
4. For the purposes of this Article the upper age limit for a woman, set in the definition of a period of Australian working life residence in the legislation of Australia, shall be 65 years for the purposes of claiming a retirement pension under the legislation of Spain.
ARTICLE 12
Benefits for temporary incapacity and maternity and risk during pregnancy
For the granting of benefits for the temporary incapacity of a worker or maternity or risk during pregnancy of an employee, the totalisation of periods referred to in Article 11 shall be taken into account, if necessary.
ARTICLE 13
Retirement, permanent incapacity and survivors benefits
1. Entitlement by virtue of this Agreement to retirement, permanent incapacity and survivors benefits 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 Spanish creditable periods completed only under its legislation.
(b) the Competent Institution shall also examine the entitlement considering the provisions of Article 11. 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 benefit to which the claimant would be entitled as if all the Spanish creditable periods and/or Australian working life residence totalised 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 benefit to a pro - rata pension, according to the period of insurance completed exclusively under the legislation of Spain and all the Spanish creditable periods and Australian working life residence completed in the two Parties; and
(iii) in no case shall the sum of the Spanish creditable periods and the periods of Australian working life residence 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 14
Recognition of insurance periods in specific professions
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 a specific activity or specific employment, periods of Australian working life residence shall be taken into account when they have been carried out in a similar activity or employment.
ARTICLE 15
Determination of Regulating Base
For the purposes of determining the regulating base to calculate benefits to which the provisions of sub - paragraph 1(b) of Article 13 apply, the Competent Institution will take into account the actual contributions the insured person has credited in Spain during the years immediately preceding the payment of the last contribution to the Spanish Social Security. The amount of the benefit derived will be increased for each successive year by the amount of the increases and revaluations set for benefits of the same kind.
ARTICLE 16
Specific Conditions for Acknowledging Entitlement
1. If Spanish legislation conditions the granting of the benefits regulated under this Part to a person's having been subject to that legislation at the time of the event giving rise to a benefit, this condition will be deemed to be fulfilled if, at that time, the person is resident in Australia or, otherwise, is receiving an Australian benefit of the same or different nature but applicable to the beneficiary in his own right.
The same principle will apply for determining entitlement to survivor pensions in order to take into account, if necessary, the resident or pensioner status of the claimant in Australia.
2. If in order to determine entitlement to the Spanish benefit, Spanish legislation requires completion of creditable periods during a prescribed period of time immediately prior to the event giving rise to the Spanish benefit, this condition will be deemed to be fulfilled if the claimant has periods of Australian working life residence of an equivalent duration in the period of time immediately prior to qualifying for the Australian benefit.
3. The reduction, suspension or withdrawal clauses provided for in Spanish legislation in the case of pensioners who engage in a working activity, will affect them even when they carry out such activity in Australia.
ARTICLE 17
Non - contributory benefits
1. Non - contributory benefits of Spain's social security system shall be awarded to Australian nationals under the same conditions and with the same requirements as the legislation mentioned provides for Spanish nationals.
2. In awarding the non - contributory benefits referred to in paragraph 1, totalisation of periods of Australian working life residence under paragraph 1 of Article 11 shall not be applied.
ARTICLE 18
Unemployment Benefits
For the granting of unemployment benefits the totalisation of periods referred to in Article 11 shall, if necessary, be taken into account.
ARTICLE 19
Benefits for Accidents at Work and Occupational Diseases
Benefits related to incapacity due to work - related accidents or occupational diseases according to Spanish legislation shall be paid by the Spanish Competent Institution whenever a person is subject to the legislation applied by it at the time the accident occurred or at the date the occupational disease has been contracted if that person has been pursuing an occupational activity likely to cause that disease according to the legislation of that Party.
ARTICLE 20
Voluntary Insurance
Persons to whom this Agreement applies shall be entitled to voluntary insurance under Spain's Social Security system in accordance with Spanish domestic legislation and for this purpose may, if required, totalise periods of Australian working life residence.
PART V - COMMON PROVISIONS
ARTICLE 21
Family Benefits for a Dependent Child and Additional Child Amount
1. In applying its income test for additional child amount, Australia shall not take into account, as income, Spanish family benefits for a dependent child.
2. In applying its income test for family benefits for a dependent child, Spain shall not take into account, as income, Australian additional child amount.
PART VI - MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS
ARTICLE 22
Lodgement of Documents
1. A claim, notice or appeal concerning a benefit, whether payable by virtue of this Agreement or otherwise, may be lodged in either Party in accordance with administrative arrangements made pursuant to Article 27 at any time after the Agreement enters into force.
2. For the purpose of determining the right to a benefit, the date on which a claim, notice or appeal referred to in paragraph 1 is lodged with the Competent Institution of one Party, shall be considered as the date of lodgement of that document with the Competent Institution of the other Party. The Competent Institution with which a claim, notice or appeal is lodged shall refer it without delay to the Competent Institution of the other Party.
3. A claim for a benefit from one Party shall be considered as a claim for the corresponding benefit from the other Party so long as the claimant has indicated in that claim that there is, or there was, an affiliation with the social security system of that other Party.
4. In relation to Australia, the reference in paragraph 2 to an appeal document is a reference to a document concerning an appeal that may be made to an administrative body established by, or administratively for the purposes of, the social security laws of Australia.
ARTICLE 23
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.
ARTICLE 24
Recovery of overpayments
1. If:
(a) the Competent Institution of one Party discovers (at the time of settlement or review of a benefit included in Article 2) that a person has been paid a higher benefit over a period than that to which the person was entitled because that person was also entitled over the same period to a benefit from the other Party that was not paid; and
(b) the other Party has a provision to pay that person the arrears of the unpaid benefit in the form of a lump sum,
the first Party may ask the other Party to withhold from those arrears the amount paid in excess of the amount to which the person was entitled and if such a request is made the other Party shall withhold that amount and pay it to the first Party.
2. For the purposes of paragraph 1, no distinction shall be made between benefits paid by virtue of totalisation of periods from the other Party and those paid without the need to use the referred periods.
3. For Australia, where:
(a) a benefit is paid or payable by Spain to a person in respect of a past period by virtue of this Agreement; and
(b) for all or part of that period, Australia has paid to that person a pension, benefit, or allowance under its social security laws; and
(c) the amount of the pension, benefit or allowance paid by Australia would have been reduced had the benefit paid or payable by Spain been paid during that period;
then
(d) the amount that would not have been paid by Australia had the benefit described in subparagraph (a) been paid on a periodical basis throughout that past period, shall be a debt due by that person to Australia and may be recovered by Australia; and
(e) Australia may determine that the amount or only part of that debt may be deducted from future payments of a pension, benefit or allowance payable by Australia under its social security laws to that person.
ARTICLE 25
Payment of Benefits
1. 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.
2. A benefit payable by a Party by virtue of this Agreement shall be paid by that Party, whether the beneficiary is in Spain, Australia or a third country, without deduction for government administrative fees and charges for processing and paying that benefit.
ARTICLE 26
Exchange of Information and Mutual Assistance
1. The Competent Authorities shall:
(a) communicate to each other any information necessary for the application of this Agreement;
(b) notify each other of measures taken internally to implement this Agreement and its Administrative Arrangements; and
(c) lend their good offices and technical and administrative cooperation to implement this Agreement.
2. The Competent Institutions of both Parties shall:
(a) communicate to each other whatever information is necessary to implement this Agreement;
(b) carry out medical examinations, verify facts and events from which the grant, review, suspension, cancellation or maintenance of their benefit entitlements is derived; and
(c) lend their good offices and technical and administrative cooperation to implement this Agreement.
3. The assistance referred to in paragraph 1 shall be provided free of charge, subject to any arrangements reached between the Competent Authorities and the Competent Institutions for the reimbursement of certain types of expenses.
4. When the Competent Authority or Competent Institution of one of the Parties forwards personal data to the Competent Authority or Competent Institution of the other Party, the privacy laws on data protection of the Party transmitting the data shall apply. Notwithstanding any laws or administrative practices of a Party, no information concerning a person which is received by that Party from the other Party shall be transferred or disclosed to any other country or to any other organisation within that other country without the prior written consent of that other Party.
5. In no case shall the provisions of paragraphs 1, 2 and 4 be construed so as to impose on the Competent Authorities or Competent Institutions 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.
6. The Competent Authorities and the Competent Institutions may communicate with the other in English or Spanish.
ARTICLE 27
Administrative Arrangements
1. The Competent Authorities of the Parties shall make whatever administrative arrangements are necessary in order to implement this Agreement.
2. A Competent Authority of a Party may authorise a Competent Institution of that Party to sign any Administrative Arrangement made under this Agreement.
ARTICLE 28
Meetings and Review of Agreement
1. In order to examine and resolve problems which may arise in the application of the Agreement and the Administrative Arrangements, as referred to in Article 27, the Competent Authorities and/or the Competent Institutions may meet as necessary.
2. Where a Party requests the other to meet to review this Agreement, the Parties shall meet for that purpose as soon as possible.
PART VII - FINAL PROVISIONS
ARTICLE 29
Transitional Provisions
A person who, at the date of entry into force of this Agreement:
(a) receives a benefit under the Agreement signed on 10 February 1990; or
(b) is qualified to receive a benefit referred to in subparagraph (a) and, where a claim for that benefit is required, has claimed that benefit:
shall not receive less favourable treatment through the application of the provisions of this Agreement than he or she would have received under the provisions of that Agreement.
ARTICLE 30
Entry into Force
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 finalised.
2. Subject to the provisions of Article 29 the Agreement between Australia and Spain on Social Security signed on 10 February 1990 shall terminate on entry into force of this Agreement.
ARTICLE 31
Duration of the Agreement
1. The Agreement shall remain in force indefinitely unless terminated by one of the Parties, and that termination shall take effect 12 months from the date of that Party's advice to the other Party through the diplomatic channel.
2. In the event that this Agreement is terminated in accordance with paragraph 1, this 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 or the Agreement signed on 10 February 1990.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in 2 copies at MADRID this THIRTY - FIRST day of JANUARY, TWO THOUSAND AND TWO in the English and Spanish languages, both texts being equally authoritative.
FOR THE GOVERNMENT OF AUSTRALIA
Alexander Downer | FOR THE GOVERNMENT OF SPAIN
Josep Piqué i Camps |
[Signatures omitted]