The Social Security (Australia) Order (Northern Ireland) 1992

Made: 4th June 1992

Coming into operation: 29th June 1992

In exercise of the powers conferred on me by section 134 of the Social Security (Northern Ireland) Act 1975[^f00001] and Article 17 of the Child Benefit (Northern Ireland) Order 1975[^f00002] and of all other powers enabling me in that behalf, I hereby make the following order:

Citation and commencement

1

This order may be cited as the Social Security (Australia) Order (Northern Ireland) 1992 and shall come into operation on 29th June 1992.

Modification of the Social Security (Northern Ireland) Act 1975

2

The Social Security (Northern Ireland) Act 1975 shall be modified to such extent as may be required to give effect to the provisions contained in the Agreement on Social Security set out in Schedule 1 to this order (which Agreement enters into force on the date specified in the Notes set out in Schedule 2 to this order), as amended by the Notes set out in Schedule 3 to this order, so far as the same relate to Northern Ireland.

Modification of the Child Benefit (Northern Ireland) Order 1975

3

Part II of the Child Benefit (Northern Ireland) Order 1975 (child benefit) 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 on Social Security set out in Schedule 1 to this order (which Agreement enters into force on the date specified in the Notes set out in Schedule 2 to this order), as amended by the Notes set out in Schedule 3 to this order, so far as the same relate to Northern Ireland.

Revocation and variation of orders

4

• (1) The Family Allowances and National Insurance (Reciprocal Agreement with Australia) Order (Northern Ireland) 1962[^f00003], the Social Security (Australia) (Northern Ireland) Order 1975[^f00004] and the Social Security (Australia) Order (Northern Ireland) 1987[^f00005] are hereby revoked.

• (2) The National Insurance (Reciprocal Agreements with Australia and New Zealand) Order (Northern Ireland) 1964[^f00006] is hereby revoked, so far as it relates to Australia.

• (3) In the Schedule to the Social Security (Reciprocal Agreements) Order (Northern Ireland) 1979[^f00007], the entry relating to the Family Allowances and National Insurance (Reciprocal Agreement with Australia) Order (Northern Ireland) 1962 shall be omitted and in the Schedule to the Social Security (Reciprocal Agreements) Order (Northern Ireland) 1988[^f00008] the entries relating to the orders set out in paragraph (1) of this Article shall be omitted.

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’s 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’s Allowance

ARTICLE 10 — Family Allowance

ARTICLE 11 — Guardian’s 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:

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

• (1) Where a benefit is payable by a Party to a person in respect of a past period (in this Article referred to as “the first benefit” ), and

• (a) for all or part of that same period, the other Party has paid to that person a benefit under its legislation (in this Article referred to as “the second benefit” ); and

• (b) the amount of the second benefit would have been reduced had the first benefit been paid during that period,

the competent authority of the former Party, at the request of the competent authority of the latter Party, shall:

• (c) deduct from the first benefit an amount equal to the amount of the second benefit that would not have been paid had the first benefit been paid on a periodical basis throughout that past period, and

• (d) transmit any sum deducted in accordance with sub-paragraph (c) above to the competent authority of the latter Party.

Any balance shall be paid by the former Party direct to the person.

• (2) Where the United Kingdom has paid a benefit to a person in respect of a past period and:

• (a) for all or part of that same period, Australia has paid to that person a benefit under its legislation; and

• (b) the amount of the benefit paid by Australia would have been reduced had the United Kingdom paid its benefit during that period,

the competent authority of Australia may determine that:

• (c) the amount of its benefit which would not have been paid had the United Kingdom paid its benefit on a periodical basis throughout that period is a debt due by that person to Australia; and

• (d) the amount, or any part, of that debt may be recovered from future benefits which Australia may pay under its legislation to that person.

• (3) A reference in paragraphs (1) or (2) to a payment under the legislation of a Party means a benefit payable whether by virtue of this Agreement or otherwise.

• (4) Where a person has received income support under the legislation of Great Britain, Northern Ireland or the Isle of Man for a period for which that person subsequently becomes entitled to any benefit under the legislation of Australia, the competent institution of Australia, at the request of and on behalf of the competent institution of Great Britain, Northern Ireland or the Isle of Man, shall withhold from the benefit due for that period the amount by which the income support paid exceeded what would have been paid had the benefit under the legislation of Australia been paid before the amount of income support was determined, and shall transmit the amount withheld to the competent institution of Great Britain, Northern Ireland or the Isle of Man.

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 — FIRST 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)

CANBERRA

23 April 1992

SCHEDULE 3 — SECOND 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)

CANBERRA

22 April 1992

Signed

P. B. B. Mayhew — One of Her Majesty’s Principal Secretaries of State — Dated this 4th day of June 1992.

Explanatory note

(This note is not part of the Order.)

This order makes provision for the modification of the Social Security (Northern Ireland) Act 1975 and Part II of the Child Benefit (Northern Ireland) Order 1975 to give effect to the Agreement on Social Security made between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia set out in Schedule 1 as amended by the Notes set out in Schedule 3. The Agreement relates to reciprocity in contributions, retirement pensions, age pensions and benefits for widows, family allowance and guardian’s allowance, sickness benefits and invalidity benefits and unemployment benefit.

Footnotes

[^f00001]: 1975 c. 15; section 134 was amended by section 20(3) of, and extended by section 20(4) of, the Social Security (Miscellaneous Provisions) Act 1977 (c. 5), and further amended by Article 66(2) of the Social Security (Northern Ireland) Order 1986 (S. I. 1986/1888 (N. I.18)); subsection (1A) was inserted by Article 7(1) of the Social Security (Northern Ireland) Order 1981 (S. I. 1981/1118 (N. I. 25))

[^f00002]: S. I. 1975/1504 (N. I. 16); Article 17 was amended by Article 16 of the Social Security (Miscellaneous Provisions) (Northern Ireland) Order 1977 (S. I. 1977/610 (N. I. 11)), and Article 66(3) of the Social Security (Northern Ireland) Order 1986; paragraph (1A) was inserted by Article 7(2) of the Social Security (Northern Ireland) Order 1981

[^f00003]: S. R. & O. (N. I.) 1962 No. 218

[^f00004]: S. I. 1975/1041

[^f00005]: S. R. 1987 No. 231

[^f00006]: S. R. & O. (N. I.) 1964 No. 85

[^f00007]: S. R. 1979 No. 92, to which there are amendments not relevant to the subject matter of this order

[^f00008]: S. R. 1988 No. 120