Protocol to the Agreement between Australia and the Republic of Austria on Social Security 

(amends the current agreement - effective 1 October 2002)

AUSTRALIA AND THE REPUBLIC OF AUSTRIA, being desirous of amending and supplementing the Agreement on Social Security between them done at Canberra on the first day of April 1992;

Have agreed as follows:

Article I

  1. In this Protocol "Agreement" means the Agreement between Australia and the Republic of Austria on Social Security done on the first day of April 1992 at Canberra.

  2. In the application of this Protocol any term defined in the Agreement shall, unless the context otherwise requires, have the same meaning.

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Article II

  1. (a) In subparagraph 1(c) of Article 1 of the Agreement, the words "the Secretary to the Department of Social Security" shall be deleted and replaced by the words "the Secretary of the department responsible for the legislation in subparagraph 1(a) of Article 2".

    (b) Subparagraph 1(d) of Article 1 of the Agreement shall be deleted and replaced by the following:

    "(d) "institution" means, in relation to a Party, the institution or agency responsible for the administration of all or part of that Party's legislation;"

    (c) Subparagraph 1(e) of Article 1 of the Agreement shall be deleted and replaced by the following:

    "(e) "competent institution" means, in relation to a Party, the institution competent under the legislation of that Party;"

    (d) Subparagraph 1(i) of Article 1 of the Agreement shall be deleted and replaced by the following:

    "(i) "carer payment" means a carer payment payable to a person who is caring for that person's partner who is in receipt of an Australian disability support pension or age pension;"

    (e) Subparagraph 1(j) of Article 1 of the Agreement shall be deleted and replaced by the following:

    "(j) "widowed person" means, in relation to Australia, a person who stops being a partnered person because of the death of the person's partner but does not include a person who has a new partner;"

  2. Subparagraph 1(a) of Article 2 of the Agreement shall be deleted and replaced by the following:

    "(a) in relation to Australia, the Acts and regulations forming the social security law to the extent they provide for, apply to, or affect:

    (i) age pensions,
    (ii) disability support pensions,
    (iii) wife pensions,
    (iv) carer payments,
    (v) pensions payable to widowed persons, and
    (vi) double orphan pensions; and"

  3. Paragraph 3 of Article 2 of the Agreement shall be deleted and replaced by the following:

    "(3) 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 agreement on social security."

  4. In subparagraph 4(b) of Article 5 of the Agreement the words "carer pension" and the words "rental allowance" shall be deleted and replaced by the words "carer payment" and the words "rent assistance" respectively.

  5. In paragraph 4 of Article 5 of the Agreement the following new subparagraph (e) shall be inserted:

    "(e) 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 residents of Australia, that pension shall, subject to the provisions of the legislation of Australia, be payable while that person and that young person are residents of Austria."

  6. In Article 5 of the Agreement the following new paragraph (6) and paragraph (7) shall be inserted:

    "(6) Australian legislation which provides for, applies to or affects disability support pension for a person who is not severely disabled shall not be affected by paragraph 4(d).

    (7) Notwithstanding anything else in this Article, Australian disability support pension shall not be payable for more than 26 weeks to a person who is not severely disabled while that person is outside Australia."

  7. In paragraph 4 of Article 6 of the Agreement the words "minimum period of residence in Australia" shall be deleted and replaced by the words "minimum period of Australian working life residence".

  8. In paragraph 6 of Article 7 of the Agreement the words "married person" shall be deleted and replaced by the words "member of a couple".

  9. In Article 7 of the Agreement the following new paragraph (8) shall be inserted:

    "(8) In paragraphs 1 and 4 of this Article references to Australian benefits do not include double orphan pension."

  10. Article 8 shall be deleted and replaced by the following:

    "Article 8

    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, for the purposes of this Agreement, be deemed to receive that wife pension by virtue of this Agreement."

  11. Article 9 of the Agreement shall be deleted and replaced by the following:

    "Article 9

    (1) Where the Austrian legislation makes the acquisition, maintenance or recovery of entitlement to benefits conditional upon the completion of periods of insurance in Austria, the institution which applies that legislation shall take account, as far as necessary, of periods of Australian working life residence as if they were periods of insurance in Austria.

    (2) Where the Austrian legislation makes the award of certain benefits conditional upon the completion of periods of insurance in Austria in an occupation covered by special schemes or in a specified occupation or employment, then from the periods of Australian working life residence only those periods completed under a corresponding scheme, or, failing that, in the same occupation or, where appropriate, in the same employment, shall be taken into account for the award of such benefits.

    (3) Where the Austrian legislation provides that the period of payment of a pension shall prolong the reference period during which periods of insurance in Austria must be completed, periods during which a corresponding benefit has been awarded under the Australian legislation shall prolong the aforesaid reference period.

    (4) Periods of Australian working life residence, during which the person concerned was employed or self-employed, shall be treated as periods of contributions of obligatory insurance."

  12. Article 10 of the Agreement shall be deleted and replaced by the following:

    "Article 10

    "(1) Where entitlement to a benefit exists under the Austrian legislation without the application of Article 9, the competent Austrian institution shall determine the amount of the benefit in accordance with the Austrian legislation on the basis of periods of insurance in Austria exclusively.

    (2) Where entitlement to a benefit exists under the Austrian legislation only with the application of Article 9, the competent Austrian institution shall determine the amount of the benefit in accordance with the Austrian legislation on the basis of periods of insurance in Austria exclusively and taking into account the following provisions:

    (a) Benefits or parts of benefits the amount of which does not depend on the duration of periods of insurance in Austria shall be calculated in proportion to the ratio of the duration of the periods of insurance in Austria to be taken into account for the calculation under the Austrian legislation and the period of 30 years, but shall not exceed the full amount.

    (b) Where periods after the contingency arises are to be taken into account for the calculation of invalidity or survivors' benefits, such periods shall be taken into account only in proportion to the ratio of the duration of the periods of insurance in Austria to be taken into account for the calculation under the Austrian legislation and two-thirds of the number of full calendar months between the date on which the person concerned reached the age of 16 years and the date on which the contingency occurred, but shall not exceed the full period.

    (c) Subparagraph (a) shall not apply:

    (i) to benefits resulting from supplementary insurance; or

    (ii) to means-tested benefits or parts of benefits designed to ensure a minimum income.

    (3) Where the periods of insurance in Austria to be taken into account under the Austrian legislation for the calculation of the benefit are in aggregate less than twelve months, and no entitlement to a benefit has been established under the Austrian legislation exclusively on the basis of these periods, no benefit under that legislation shall be paid."

  13. Articles 11, 12 and 13 of the Agreement shall be deleted.

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Article III

  1. Unless otherwise provided in this Article, this Protocol shall enter into force on the first day of the third month following the month in which the last of the notes are exchanged by the Parties through the diplomatic channel notifying each other that all matters as are necessary to give effect to this Protocol have been finalised.

  2. Paragraph 7 of Article 5 of the Agreement as amended by this Protocol shall not apply to the payability of an Australian disability support pension payable to a person in Austria on the day before the date of entry into force of this Protocol.

  3. Paragraph 1 of Article 10 of the Agreement as amended by this Protocol, shall have effect from 1 January 1994.

  4. Paragraph 2 of Article 10 of the Agreement as amended by this Protocol, shall have effect from 1 January 1997.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.

"DONE in two copies at Vienna this twenty-sixth day of June 2001 in the English and German languages, each text being equally authoritative.

For Australia: Max Hughes

For the Republic of Austria: Christian Prosl

Content Updated: 22 June 2012