LegalizeThe Social Security (Australia) Order 1992
At the Court at Buckingham Palace, the 4th day of June 1992
Present,
The Queen’s Most Excellent Majesty in Council
Whereas at London on 1st October 1990 an Agreement on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia (which Agreement is set out in Schedule 1 to this Order and is hereinafter referred to as “the Agreement”) was signed on behalf of those Governments:
And Whereas by Article 25(1) of the Agreement it is provided that the Agreement shall enter into force on a date to be specified in Notes exchanged through the Diplomatic Channel by the Parties to the Agreement notifying each other that all matters as are necessary to give effect to the Agreement have been finalised:
And Whereas at Canberra on 22nd April 1992 Notes were exchanged on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia (which Notes are set out in Schedule 2 to this Order) specifying that the Agreement shall enter into force on 29th June 1992:
And Whereas the provisions in the said Agreement were modified by an Exchange of Notes (which Notes are set out in Schedule 3 to this Order) which specify that the amendments to the Agreement shall enter into force on 29th June 1992:
And Whereas by section 143 of the Social Security Act 1975 and section 15(1) of the Child Benefit Act 1975 it is provided that Her Majesty may by Order in Council make provision for modifying or adapting the said Social Security Act and for modifying the provisions of Part I of the said Child Benefit Act and regulations made under it in their application to cases affected by agreements with other Governments providing for reciprocity in matters specified in those sections:
And Whereas by virtue of section 166(4) of the Social Security Act 1975 any Order in Council made under the said section 143 may be varied by a subsequent Order in Council made under that section:
Now, therefore, Her Majesty in pursuance of the powers conferred by the said section 143 and the said section 15(1), and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:
Citation and commencement
1
This Order may be cited as the Social Security (Australia) Order 1992 and shall come into force on 29th June 1992.
Modification of Acts
2
The Social Security Act 1975 and Part I of the Child Benefit Act 1975 and any regulations made under it shall be modified to such extent as may be required to give effect to the provisions contained in the Agreement so far as the same relate to England, Wales and Scotland.
Revocation and variation of Orders
3
- (1) The Family Allowances and National Insurance (Australia) Order 1958 , the Family Allowances and National Insurance (Australia) Order 1962 , the Social Security (Australia) Order 1975 , and the Social Security (Australia) Order 1987 are hereby revoked.
- (2) The National Insurance (Australia and New Zealand) Order 1964 is hereby revoked insofar as it relates to Australia.
- (3) The reference to the Family Allowance and National Insurance (Australia) Order 1958 and to the Family Allowances and National Insurance (Australia) Order 1962 shall be omitted in the Schedule to the Social Security (Reciprocal Agreements) Order 1979 and the reference to all the Orders set out in paragraph (1) of this Article shall be omitted in the Schedule to the Social Security (Reciprocal Agreements) Order 1988 .
SCHEDULE 1 — AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA
The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia,
Wishing to strengthen the existing friendly relations between the two countries;
Having established reciprocity in the field of social security by means of an Agreement signed by the Parties at Canberra on 29 January 1958, which was amended by a further Agreement signed at Canberra on 16 August 1962 and by other Agreements set out in Exchanges of Notes at Canberra on 6 March 1975 and at London on 29 and 31 December 1986;
Wishing to consolidate the above Agreements and their extensions and modifications into a single document; and
Wishing to extend and modify the scope of that reciprocity and to take account of changes in their legislation;
Have agreed as follows:
PART I — GENERAL PROVISIONS
ARTICLE 1 — DEFINITIONS
ARTICLE 2 — SCOPE OF LEGISLATION
PART II — RETIREMENT PENSIONS AGE PENSIONS AND BENEFITS FOR WIDOWS
ARTICLE 3 — RETIREMENT PENSIONS
ARTICLE 4 — AGE PENSIONS
ARTICLE 5 — UK BENEFITS FOR WIDOWS
ARTICLE 6 — UK WIDOWED MOTHER ALLOWANCE—CHILD IN AUSTRALIA
Where a woman would be qualified under the legislation of the United Kingdom, otherwise than by virtue of this Agreement or the former Agreement, to receive widowed mother’s allowance, including an allowance for a child, if her child were in the territory of the United Kingdom, she shall be qualified to receive that allowance for any period during which the child is in Australia.
ARTICLE 7 — AUSTRALIAN BENEFITS FOR WIDOWS
ARTICLE 8 — CONVERSION OF AUSTRALIAN RESIDENCE
ARTICLE 9 — CONVERSION OF UK EARNINGS FACTORS OR CONTRIBUTION FACTORS
In order to convert to a period of contributions or credits for the purposes of Articles 4 and 7:
- (a) the competent authority of Great Britain, Northern Ireland or the Isle of Man shall divide any earnings factor achieved in any tax year commencing after 5 April 1975 under its legislation, by that years lower earnings limit;
- (b) the competent authority of Jersey shall multiply any contribution factor achieved by a person under its legislation:
- (i) by thirteen in the case of a quarterly contribution factor; and
- (ii) by fifty-two in the case of an annual contribution factor.
The result shall be expressed as a whole number, any remaining fraction being ignored. The figure so calculated, subject to a maximum of the number of weeks during which the person was subject to that legislation in a quarter or in a year, shall be treated as representing the number of weeks of contributions or credits completed under that legislation.
PART III — UK FAMILY ALLOWANCE AND GUARDIAN ALLOWANCE
ARTICLE 10 — FAMILY ALLOWANCE
ARTICLE 11 — GUARDIAN ALLOWANCE
PART IV — SICKNESS BENEFITS AND INVALIDITY BENEFITS
ARTICLE 12 — AUSTRALIAN SICKNESS BENEFIT
Where a person who is temporarily absent from any part of the territory of the United Kingdom and who is legally in Australia claims sickness benefit under the legislation of Australia, that person shall, for the purpose of that claim, be deemed to be an Australian resident.
ARTICLE 13 — UK SICKNESS BENEFIT AND INVALIDITY BENEFIT
PART V — UK UNEMPLOYMENT BENEFIT
ARTICLE 14
PART VI — MISCELLANEOUS PROVISIONS
ARTICLE 15 — TEMPORARY ABSENCES
ARTICLE 16 — CALCULATION OF AUSTRALIAN BENEFITS
ARTICLE 17 — DUAL ENTITLEMENT IN AUSTRALIA
Where:
- (a) a claim is made for a benefit payable by Australia, 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 under the legislation of the United Kingdom 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.
ARTICLE 18 — DUAL ENTITLEMENT IN UK
Where a person is qualified to receive a benefit under the legislation of the United Kingdom pursuant to Articles 3, 5 or 13 and is also qualified to receive an Australian benefit, the rate of that Australian benefit shall be determined under the legislation of Australia but in that determination the amount of the benefit payable under the legislation of the United Kingdom shall be disregarded in the computation of that person’s income.
ARTICLE 19 — RECOVERY OF BENEFIT
ARTICLE 20 — MEANING OF PERMANENTLY RESIDENT
For the purpose of applying the provisions of this Agreement, a person shall be treated as permanently resident in the territory of the United Kingdom if he or she is ordinarily resident in that territory and the competent authority of that territory is satisfied that it is that person’s intention to remain so resident permanently.
ARTICLE 21 — GAINFUL OCCUPATION IN AUSTRALIA
For the purpose of Articles 13 and 14, a person shall be treated as having been gainfully occupied in Australia during:
- (a) any period of service, whether in Australia or elsewhere, in the Defence Force of Australia; and
- (b) any period of absence from Australia during which that person was an employee and was treated as being a resident of Australia within the meaning of any Act relating to the imposition, assessment and collection of a tax upon incomes in force in Australia.
PART VII — ADMINISTRATION
ARTICLE 22 — ADMINISTRATIVE ARRANGEMENTS
The competent authorities of the United Kingdom of Great Britain and Northern Ireland and the Secretary to the Department of Social Security for the Government of Australia shall make whatever administrative arrangements are necessary from time to time in order to implement this Agreement.
ARTICLE 23 — DISCLOSURE OF INFORMATION
PART VIII — TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 24 — TRANSITIONAL PROVISIONS
ARTICLE 25 — ENTRY INTO FORCE
ARTICLE 26 — TERMINATION PROVISIONS
SCHEDULE 2 — EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA
[No. 1]
The British High Commission present their compliments to the Department of Foreign Affairs and Trade and have the honour to refer to the Agreement on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia signed at London on 1 October 1990 and, in accordance with Article 25(1) of that Agreement, to notify the Department of Foreign Affairs and Trade that the Government of the United Kingdom has completed the constitutional and administrative requirements necessary for its implementation.
The High Commission have the honour to propose that, if the Government of Australia has similarly completed its constitutional and administrative requirements, the Agreement shall enter into force on 29 June 1992.
The High Commission avail themselves of this opportunity to renew to the Department of Foreign Affairs and Trade the assurance of their highest consideration.
22 April 1992
British High Commission
CANBERRA
[No. 2]
The Department of Foreign Affairs and Trade presents its compliments to the British High Commission and has the honour to refer to the High Commission’s Note No. 29 of 22 April 1992, which reads as follows:
(the Note here sets out the text of No. 1)
The Department has the honour to advise that the constitutional and administrative arrangements necessary for the implementation of the said Agreement by the Government of Australia have been completed. The Department further has the honour to confirm that the foregoing is acceptable to the Government of Australia and that the Agreement shall enter into force on 29 June 1992.
CANBERRA
23 April 1992
SCHEDULE 3 — EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF AUSTRALIA
[No. 1]
The British High Commission present their compliments to the Department of Foreign Affairs and Trade and have the honour to refer to the Agreement on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia signed at London on 1 October 1990 (which in this letter is referred to as “the Agreement”) and to recent discussions between the Departments of Social Security of the United Kingdom and Australia concerning the need to amend the Agreement, so as to make provision for increases of United Kingdom benefits in respect of dependants to be paid in certain circumstances, for any period during which such dependant is in Australia.
The British High Commission now have the honour to propose the following amendments to the Agreement:
- (a) Articles 6 and 15(2) of the Agreement shall be deleted;
- (b) The following shall be inserted after Article 15 of the Agreement.
- Where a person who is qualified to receive any benefit under the legislation of the United Kingdom, other than a retirement pension or a widowed mother’s allowance payable by virtue of this or the former Agreement, would be qualified to receive also an increase of that benefit for a dependant if the dependant were in that territory, he or she shall be qualified to receive that increase while the dependant is in Australia.
If the foregoing proposals are acceptable to the Government of Australia, the High Commission have the honour to propose that this Note and the Department of Foreign Affairs and Trade’s reply to that effect, shall constitute an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia which shall enter into force on 29 June 1992.
The British High Commission avail themselves of this opportunity to renew to the Department of Foreign Affairs and Trade the assurance of their highest consideration.
22 April 1992
British High Commission
CANBERRA
[No. 2]
The Department of Foreign Affairs and Trade presents its compliments to the British High Commission and has the honour to refer to the High Commission’s Note No. 30 of 22 April 1992, which reads as follows:
(the Note here sets out the text for No. 1)
The Department has the honour to confirm that the foregoing is acceptable to the Government of Australia and that the High Commission’s Note and this reply shall together constitute an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland which shall enter into force on 29 June 1992.
CANBERRA
22 April 1992
Signed
G. I. de Deney — Clerk of the Privy Council
Explanatory note
(This note is not part of the Order)
Footnotes
[^f00001]: see Cmnd. 1589.
[^f00002]: see Cmnd. 1955.
[^f00003]: 1975 c. 14. Section 143 was amended by section 20(1) of the Social Security (Miscellaneous Provisions) Act 1977 (c. 5) and by section 65(2) of and Schedule 11 to the Social Security Act 1986 (c. 50). Subsection (1A) was inserted by section 6(1) of the Social Security Act 1981 (c. 33).
[^f00004]: 1975 c. 61. Section 15(1) was amended by section 20(2) of the Social Security (Miscellaneous Provisions) Act 1977 and by Section 65(3) of and Schedule 11 to the Social Security Act 1986. Subsection (1A) was inserted by section 6(2) of the Social Security Act 1981.
[^f00005]: S.I. 1958/422.
[^f00006]: S.I. 1962/1869.
[^f00007]: S.I. 1975/812.
[^f00008]: S.I. 1987/935.
[^f00009]: S.I. 1964/495.
[^f00010]: S.I. 1979/290.
[^f00011]: S.I. 1988/591.
The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia,
Wishing to strengthen the existing friendly relations between the two countries;
Having established reciprocity in the field of social security by means of an Agreement signed by the Parties at Canberra on 29 January 1958, which was amended by a further Agreement signed at Canberra on 16 August 1962 and by other Agreements set out in Exchanges of Notes at Canberra on 6 March 1975 and at London on 29 and 31 December 1986;
Wishing to consolidate the above Agreements and their extensions and modifications into a single document; and
Wishing to extend and modify the scope of that reciprocity and to take account of changes in their legislation;
Have agreed as follows:
- (1) For the purpose of this Agreement, unless the context otherwise requires:
- “benefit”means pension, allowance or benefit payable under the legislation of one (or the other) Party and includes any increase payable for a dependant;
- “competent authority”means, in relation to the territory of the United Kingdom, the Secretary of State for Social Security for Great Britain, the Department of Health and Social Services for Northern Ireland, the Department of Health and Social Security of the Isle of Man, the Social Security Committee of the States of the Island of Jersey or the States of Guernsey Insurance Authority, as the case may require, and, in relation to Australia the Secretary to the Department of Social Security;
- “competent institution”means the institution from which the person concerned is entitled to receive benefit or would be entitled to receive benefit if he were resident in the territory of the Party where that institution is situated;
- “contribution”, in relation to the legislation of the United Kingdom, does not include a reduced rate contribution payable by a married woman or a widow, or a graduated contribution within the meaning of that legislation;
- “employed person”means a person who, in the applicable legislation, comes within the definition of an employed earner or of an employed person or is treated as such and the words “person is employed”shall be construed accordingly;
- “employment”means employment as an employed person and the words “employ”, “employed”or “employer”shall be construed accordingly;
- “equivalent period”means, in relation to the United Kingdom, a period for which contributions appropriate to the benefit in question have been credited under the legislation of that Party;
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