Social Security Agreement between Australia and The Republic of Italy 


Australia and the Republic of Italy, wishing to strengthen the existing friendly relations between the two countries, and desiring to review the Agreement providing for reciprocity in matters relating to Social Security signed on 23 April 1986, and acknowledging the need to co-ordinate further the operation of their respective social security systems and to enhance the equitable access by people who move between Australia and Italy to social security benefits provided for under the laws of both countries,
Have agreed as follows:
 

PART I - Interpretation and Scope

Article 1

Interpretation

  1. In this Agreement, unless the context otherwise requires:
    1. supplement for children - means, in relation to Australia, the additional family payment and, if applicable, the guardian allowance that would be payable to a person in addition to a benefit under the legislation of Australia if that person were an Australian resident in Australia and qualified for that payment and, if applicable, that allowance;
    2. Australian resident - means an Australian resident as defined in the legislation of Australia;
    3. benefit - means, in relation to a Party, a pension or allowance for which provision is made in the legislation of that Party and includes any additional amount, increase or supplement payable in addition to that pension or allowance to a person who qualifies for that additional amount, increase or supplement under the legislation of that Party;
    4. competent authority - means,
      in relation to Australia: the Secretary to the Department of Social Security; and,
      in relation to Italy: the Ministry of Labour and Social Welfare;
    5. dependants - means, in relation to Italy, persons who are within the categories of family members of an insured person or pensioner under the legislation of Italy and who are recognised by that legislation as the dependants of that person or pensioner;
    6. disability support pension - means, in relation to Australia, the payment made under the legislation of Australia to people who are considered to be severely disabled under that legislation;
    7. institution - means,
      in relation to Australia: the Department of Social Security; and
      in relation to Italy: an institution, apart from the competent authority, which is responsible for the application of this Agreement as specified in the administrative arrangements for this Agreement;
    8. Italian integration - means the integrazione al minimo paid to increase the amount of a benefit derived from contributions or otherwise to the minimum amount specified under the legislation of Italy;
    9. Italian social supplement - means that welfare benefit granted in addition to the pensions of those people who have incomes lower than the amount fixed by Italian legislation;
    10. legislation - means the laws specified in Article 2;
    11. period of Australian working life residence - means a period defined as such in the legislation of Australia;
    12. period of credited contributions - means a period or the total of two or more periods of contributions used to acquire an entitlement to a benefit and any period deemed to be a period of contributions under the legislation of Italy;
    13. spouse carer pension - means a carer pension payable, under the legislation of Australia, to the partner of a person who is in receipt of a disability support pension or of an age pension;
    14. survivors - means, in relation to Italy, persons who are within the categories of family members of a person who was insured or was a pensioner under the legislation of Italy and is now deceased, and who are recognised by that legislation as survivors of that person or pensioner;
    15. widow - means a de jure widow;
  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 within the scope of this Agreement, in relation to that Party, by virtue of Article 2.

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:
    1. in relation to Australia: the Social Security Act 1991 in so far as the Act provides for, applies to or affects the following benefits:
      1. age pension;
      2. disability support pension
      3. wife pension;
      4. pensions payable to widows;
      5. widowed person allowance;
      6. spouse carer pension;
      7. double orphan pension; and
      8. supplements for children.
    2. in relation to Italy: the legislation in force at the date of signature of this Agreement and any legislation that subsequently amends, supplements or replaces that legislation, concerning the compulsory general insurance scheme for employees in regard to invalidity, old age and survivors; special insurance schemes for self-employed persons and other categories of workers; family benefits for dependants of pensioners and unemployment insurance and, in particular, the following benefits
      1. old age pensions;
      2. seniority pensions;
      3. anticipated pensions;
      4. invalidity allowances;
      5. inability pensions;
      6. privileged invalidity allowances;
      7. privileged inability pensions;
      8. invalidity attendance allowance;
      9. survivors' pensions;
      10. family benefit for dependants of pensioners; and
      11. unemployment allowances.
  2. Notwithstanding the provisions of paragraph 1, and unless otherwise specified in this Agreement, the legislation of Australia and Italy shall not include any laws made at any time for the purpose of giving effect to any agreement on social security.
  3. The competent authorities of the Parties shall advise each other of legislation that amends, supplements or replaces the legislation within the scope of this Agreement promptly after the first-mentioned legislation is enacted.

Article 3

Personal Scope

This Agreement shall apply to any person who:

  1. is or has been an Australian resident; and/or
  2. has credited contributions under the legislation of Italy,

and, where applicable, to dependants and survivors in regard to entitlements they may derive from the person mentioned in this Article.

Article 4

Equality of Treatment

  1. The citizens of each of the Parties shall be treated equally in the application of the legislation of Australia and of Italy respectively and, in any case where qualification for a benefit under the legislation of a Party depends, in whole or in part, on citizenship of that Party, a person who is a citizen of the other Party shall, for the purposes of a claim for that benefit, be deemed to be a citizen of the first mentioned Party.
  2. All persons to whom this Agreement applies shall be treated equally by the Parties in regard to entitlements and obligations derived from the legislation of the Parties and from this Agreement.
  3. A Party shall not be required to apply paragraphs 1 and 2 of this Article to a person who is present in the territory of that Party without lawful authority.

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PART II - Provisions Relating to Benefits

Australian Benefits

Article 5

Residence or Presence in Italy or in a Third Country

  1. Subject to paragraph 2, 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:
    1. is an Australian resident or residing in the territory of Italy or of a third country with which Australia has implemented an agreement that includes provision for co-operation in the lodgement and determination of claims for benefits, and
    2. is in Australia, the territory of Italy or the territory of 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 a double orphan pension in accordance with Article 9.

Article 6

Partner-related Australian benefits

A person who receives or is qualified to receive a benefit under the legislation of Australia due to the fact that his or her partner receives or is qualified to receive an Australian benefit by virtue of this Agreement, shall receive a rate calculated under this Agreement.

Article 7

Totalisation of Periods of Residence and Periods of Contributions

Totalisation for Australia

  1. Where a person to whom this Agreement applies has accumulated:
    1. 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 a benefit; and
    2. a period of Australian working life residence equal to or greater than the minimum period identified for that person in paragraph 4; and
    3. a period of credited contributions in Italy;

    then that period of credited contributions shall be deemed, only for the purposes of meeting any minimum qualifying period for that benefit set out in the legislation of Australia, to be a period when that person was an Australian resident.

  2. For the purposes of paragraph 1, where a person:
    1. has been an Australian resident for a continuous period which is less than the minimum period of continuous residence required by the legislation of Australia for entitlement of that person to a benefit; and
    2. has accumulated a period of credited contributions in Italy in 2 or more separate periods that equals or exceeds in total the period referred to in sub-paragraph (a);

    the total of the periods of credited contributions shall be deemed to be one continuous period.

  3. For the purposes of this Article, where a period as an Australian resident and a period of credited contributions 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 sub-paragraph 1(b) shall be as follows:
    1. for the purposes of an Australian benefit payable to a person outside Australia: the minimum period required shall be 12 months, of which at least 6 months must be continuous; and
    2. for the purposes of an Australian benefit payable to an Australian resident in Australia: no minimum period of Australian working life residence shall be required.
  5. For the purposes of paragraphs 1 and 2 and for the purpose of a claim by a woman for a pension payable to a widow, that woman shall be deemed to have accumulated a period of credited contributions for any period her late husband accumulated a period of credited contributions, but any period during which the woman and her late husband both accumulated periods of credited contributions shall be taken into account once only.

Article 8

Calculation of Australian Benefits

  1. Subject to the provisions of this Article, where an Australian benefit, other than a double orphan pension, is payable under this agreement or otherwise to a person who is outside Australia, the rate of that benefit shall be determined according to the legislation of Australia but, when assessing the income of that person for the purposes of calculating the rate of the Australian benefit, benefits paid or due under the legislation of Italy shall be assessed in the following way:
    1. any Italian integration and/or social supplement and family benefit for the dependants of pensioners included in the total amount of that Italian benefit shall be disregarded;
    2. the social pension paid by Italy as non-contributory welfare support shall be disregarded; and
    3. only a proportion of any other Italian benefit shall be assessed 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 Italian benefit and by dividing the result by 300.
  2. A person referred to in paragraph 1 shall be entitled to receive the concessional treatment of income described in sub-paragraph (c) only for any period during which the rate of that person's Australian benefit is proportionalised.
  3. Subject to the related provisions in this Article, where an Australian benefit, other than a double orphan pension, is payable under this agreement to a person who is an Australian resident and in Australia, the rate of that benefit shall be determined by
    1. calculating that person's income according to the legislation of Australia but disregarding in that calculation any Italian benefit (including any Italian integration and/or social supplement and family benefit for dependants of pensioners) to which that person is entitled;
    2. deducting that Italian benefit (including any Italian integration and/or social supplement and family benefit for dependants of pensioners) from the maximum rate of the Australian benefit; and
    3. 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 result from the application of sub-paragraph (a).
  4. For the purposes of this Article and for the application of the legislation of Australia, where a member of a couple is, or both his or her partner are, entitled to receive an Italian benefit or benefits, each of them shall be deemed to be in receipt of one half of either the amount of that benefit or of the total of the benefits, as the case may be.

Article 9

Double Orphan Pension and Spouse Carer pension

  1. 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 Italy.
  2. For the purposes of qualification for a spouse carer pension under this Agreement, a person who is in Italy shall be regarded as being in Australia.

Article 10

Exclusion of Specified Italian Payments from the Australian Income Test

  1. Subject to paragraph 3 of Article 8 and paragraph 2 of this Article, where a person receives or is entitled to receive a benefit under the legislation of Australia by virtue of this Agreement or otherwise and that person and or that person's partner receive an Italian benefit or benefits which include Italian integration and/or Italian social supplement and/or family benefits for dependants of pensioners, that integration, social supplement and family benefits for dependants of pensioners shall not be included as income for the purposes of assessing the rate of that Australian benefit.
  2. For the purposes of this Article only, the term benefit shall include job search, newstart and sickness allowances payable under the social security laws of Australia.

Italian Benefits

Article 11

Totalisation of Periods of Contributions and Periods of Residence

Totalisation for Italy

  1. Where a person to whom this Agreement applies has accumulated:
    1. a period of credited contributions in Italy that is less than the period required to qualify that person under the legislation of Italy for a benefit; and
    2. a period of credited contributions equal to or greater than the minimum period identified for that benefit for that person in paragraph 2; and
    3. a period of Australian working life residence;

    then that period of Australian working life residence shall be deemed, for the purposes of meeting any minimum qualifying period for that benefit set out in the legislation of Italy, to be a period of credited contributions.

  2. The minimum period of credited contributions in Italy to be taken into account for the purposes of paragraph 1 shall be as follows:
    1. for old age pension: 1 year;
    2. for anticipated pension: 1 year;
    3. for seniority pension: 15 years;
    4. for invalidity allowance: 1 year;
    5. for inability pension: 1 year;
    6. for privileged invalidity pension allowance: 1 year;
    7. for privileged inability pension: 1 year; and
    8. for survivor's pension: 1 year.
  3. For the purposes of voluntary insurance under the legislation of Italy, a period of credited contributions in Italy in relation to a person shall be combined, where necessary, with any period of Australian working life residence accumulated by that person, provided the first-mentioned period totals at least one year.
  4. For all purposes of this Article, where a period of credited contributions and a period of Australian working life residence coincide, the period of coincidence shall be taken into account once only by Italy as a period of contributions.

Article 12

Italian Pro-Rata Benefits

  1. The amount of Italian benefit payable to a person through the application of Article 11 shall be determined as follows:
    1. the amount of the theoretical benefit to which the person concerned would be entitled shall be established as if the period of credited contributions in Italy, and the period of Australian working life residence referred to in sub-paragraph 1(c) of Article 11, and accumulated to the date from which the benefit would be payable to that person, had accumulated under the legislation of Italy; and
    2. the amount of benefit payable shall be that amount which bears to the amount referred to in sub-paragraph (a) the same ratio as that period of credited contributions bears to the sum of that period of credited contributions and that period of Australian working life residence for that person.
  2. If the sum of the periods referred to in sub-paragraph 1(b) exceeds the maximum period provided for by the legislation of Italy for entitlement to the maximum rate of the benefit concerned, the maximum period shall be substituted for that sum in calculations made in accordance with that sub-paragraph.
  3. The calculation of a rate in relation to a person in accordance with paragraph 1 shall take into account only the salary or income of that person which was subject to contributions under the legislation of Italy.
  4. If a person resides in Italy and is entitled to benefits under the legislation of both Parties and the total of these benefits is less than the minimum pension amount (trattamento minimo di pensione) specified under the legislation of Italy, the Italian institution shall pay, in addition to its benefit, the Italian integration needed to reach the said minimum pension amount.

Article 13

Exclusion of Specified Australian Payments from the Italian Income Test

Where a person receives or is entitled to receive a benefit under the legislation of Italy by virtue of this Agreement or otherwise and that benefit includes an Italian integration, Italian social supplement and or family allowance for dependants of pensioners, any supplements for children paid to that person and or that person's partner under the social security laws of Australia shall not be included as income for the purposes of assessing the rate of that Italian integration, Italian social supplement and or family benefit.

Article 14

Unemployment Allowance

For the purposes of eligibility by a citizen of Australia or of Italy for unemployment allowance under the social security laws of Italy, any periods of employment accumulated in Australia by that person, other than periods of self-employment, shall be totalised with periods of credited contributions in Italy for that person, if those last-mentioned periods total one year or more.

Article 15

Family Benefits

Family benefits payable under the legislation of Italy:

  1. shall be payable under this Agreement to Australian residents who are receiving an Italian benefit payable under the social security laws of Italy, whether those persons are citizens of Australia or of Italy; and
  2. shall not preclude the payment of family payments under the social security laws of Australia, including those laws as modified or adapted by laws giving effect to an agreement on social security with a third country,

    and shall, for the purpose of reciprocity under this Agreement, be regarded as the Italian benefit equivalent to those Australian benefits described as:

  3. wife pension;
  4. spouse carer pension; and
  5. supplements for children.

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PART III - Miscellaneous Provisions

Article 16

Lodgement of Claims

  1. A claim for benefit, under this Agreement or otherwise, may be lodged:
    1. in the territory of either Party in accordance with the administrative arrangements for this Agreement; or
    2. in a third country if that country is of the kind referred to in Article 5,

    at any time after the Agreement enters into force.

  2. Where a claim for a benefit of a Party is lodged in the territory of the other Party or in a third country in accordance with paragraph 1, the date on which the claim is lodged shall be the date of lodgement of the claim for all purposes relating to the claim.

Article 17

Determination of Claims

  1. In determining the entitlement of a person to a benefit under this Agreement:
    1. a period of Australian residence and a period of credited contributions; and
    2. any event 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 and whether they were accumulated or occurred before or after the date on which this Agreement enters into force.

  2. The start date for the payment of a benefit under this Agreement shall be determined by the legislation of the Party concerned and in no case shall that date be a date earlier than the entry into force of this Agreement.
  3. Where:
    1. a claim is made for a benefit payable by one of the Parties, whether by virtue of this Agreement of otherwise; and
    2. there are reasonable grounds for believing that the claimant may also be entitled, whether by virtue of this Agreement or otherwise, to a benefit (in this Article called 'assumed benefit'), that is payable by the other Party and that, if paid, would affect the amount of the first-mentioned benefit,

    that claim may be determined by the first-mentioned Party as if the assumed benefit were in fact being paid to that claimant.

  4. Where a claim for a benefit is determined in accordance with the preceding paragraph 3 and it is subsequently established that the amount of the assumed benefit in relation to that person was not in fact paid, any deficiency in the payment of the first-mentioned benefit shall be adjusted retrospectively.
  5. Where:
    1. it appears that a person who is entitled to the payment of a benefit by one of the Parties might also be entitled to the payment of a benefit by the other Party, in either case whether by virtue of this Agreement or otherwise;
    2. the amount of the benefit that might be paid by that other Party would affect the amount of the benefit payable by the first-mentioned Party; and
    3. the amount that could be due in respect of the benefit by that other Party, whether by virtue of this Agreement or otherwise, is likely to include an adjustment for arrears of that benefit,

      then

    4. that other Party shall, if the first-mentioned Party so requests, pay the amount of those arrears to the first-mentioned Party; and
    5. the first mentioned Party may deduct from the amount of those arrears any excess amount of the benefit paid by it and shall pay any balance remaining to that person.

Article 18

Portability of Benefits

  1. Benefits of one Party are also payable in the territory of the other Party.
  2. Where the legislation of a Party provides that a benefit is payable outside the territory of that Party, then that benefit, when payable under this Agreement, is also payable outside the territories of both Parties.
  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 territory of the other Party.
  4. A benefit payable by a Party under this Agreement shall be paid by that Party without deduction for government administrative fees and charges for processing and paying that benefit whether paid in the territory of the other Party or outside the respective territories of both Parties.

Article 19

Administrative Arrangements

The competent authorities of the Parties shall make whatever administrative arrangements are necessary to implement this Agreement.

Article 20

Exchange of Information and Mutual Assistance

  1. The competent authorities and institutions responsible for the application of this Agreement:
    1. shall communicate to each other any information necessary for the application of this Agreement and of their respective social security laws;
    2. shall lend their good offices and furnish assistance to one another, including the communication to each other of any necessary information, with regard to the determination or payment of any benefit under this Agreement or under the social security laws of either Party as if the matter involved the application of their own legislation;
    3. shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation in so far as those changes affect the application of this Agreement; and
    4. at the request of one to the other, assist each other in relation to the implementation of agreements on social security entered into by either of the parties with third countries, to the extent and in the circumstances specified in the administrative arrangements for this Agreement.
  2. The assistance referred to in paragraph 1 shall be provided free of charge, subject to any administrative arrangements made pursuant to Article 19.
  3. Any information about a person transmitted under this Agreement to an institution shall be protected in the same manner as information obtained under the legislation of that Party.
  4. In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority or the institution of a Party the obligation:
    1. to carry out administrative measures at variance with the laws or the administrative practice of that or the other Party; or
    2. to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or the other Party.
  5. In the application of the Agreement, the competent authorities and the institutions of a Party may communicate in its official language with the other Party.

Article 21

Appeals

  1. Any person affected by a determination, direction, decision or approval made or given by the competent authority or institution of a Party, in relation to a matter arising under this Agreement, shall have the same rights to a review by administrative and judicial bodies of that Party of that determination, direction, decision or approval as are provided under the laws of that Party.
  2. An appeal and documents related to an appeal in accordance with paragraph 1, may be lodged in the territory of either Party in line with the administrative arrangements for this agreement.
  3. Subject to paragraph 4, the date on which appeals and related document are lodged in accordance with paragraph 2 with the institution of one Party shall be regarded as the date of lodgement of those appeals and related documents with the institution of the other Party.
  4. In relation to Australia, the reference in this Article to an appeal document is a reference to a document concerning an appeal that may be made to an administrative body established by the social security laws of Australia.

Article 22

Review of Agreement

  1. The Parties may agree at any time to review the whole or any part of this Agreement.
  2. Subject to paragraph 1, the Parties shall consult regarding a review of this Agreement and its implementation after the Agreement has been in force for 4 years.
  3. Where a party amends, supplements or replaces its legislation, the Parties shall, if one Party so requests, consult on any consequences of that change to the legislation and on the continuing implementation of the Agreement including on whether an amendment to the Agreement is necessary.

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PART IV - Final Provisions

Article 23

Entry into Force and Transitional Provisions

  1. This Agreement shall be ratified by both Parties in accordance with their respective procedures and shall enter into force on the first day of the month following that in which there has been an exchange of instruments of ratification.
  2. When this Agreement enters into force the Agreement between Australia and the Republic of Italy on Social Security signed on 23 April 1986 shall, subject to paragraph 3, terminate.
  3. Subject to paragraph 4, where, on the date on which this Agreement enters into force, a person:
    1. is in receipt of a benefit under the legislation of either Party by virtue of the Agreement which was signed on 23 April 1986; or
    2. is qualified to receive a benefit referred to in subparagraph (a) and, where a claim for that benefit is required, has claimed that benefit,

    no provision of this Agreement shall affect that person's qualification to receive that benefit.

  4. The rate of a benefit for which a person is qualified by virtue of paragraph 3 shall, subject to this Agreement, be assessed in accordance with the provisions of the legislation of the relevant Party.
  5. Where a resident of Italy:
    1. was in receipt of a widow B pension from Australia and had that pension cancelled because of the enactment of section 1215 of the Social Security Act 1991; or
    2. had applied for a widow B pension on or before 30 June 1992 but that application had not been determined by that date,

    then that cancelled pension shall be reinstated back to the date of cancellation or that application shall be determined as if section 1215 had not been enacted. The rate of the reinstated widow B pension or of the widow B pension paid under any successful application shall be calculated under the provisions of the Agreement mentioned in paragraph 2 of this Article until this Agreement comes into force and thereafter shall be calculated under this Agreement.

Article 24

Termination

  1. Subject to paragraph 2, this Agreement shall remain in force until the expiration of 12 months from the date on which either Party receives from the other written notice through the diplomatic channel of the intention to terminate this Agreement.
  2. In the event this Agreement is terminated in accordance with paragraph 1, the Agreement shall continue to have effect in relation to all persons who:
    1. at the date of termination, are in receipt of benefits under this Agreement; or
    2. before the expiry of the period referred to in that paragraph, have lodged claims for, and would be entitled to receive, benefits under this Agreement.

IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.

Done in duplicate at Rome the thirteenth day of September 1993, in the English and Italian languages, both texts being equally authoritiative.



FOR AUSTRALIA
Peter Baldwin

FOR THE REPUBLIC OF ITALY
Gino Giugni

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