EXPLANATORY STATEMENT
Issued by the authority of the Minister for Families, Housing, Community Services and Indigenous Affairs
Subject: Social Security (International Agreements) Act 1999
Social Security (International Agreements) Act 1999 Amendment Regulations 2008 (No. 1)
Commencement (Agreement between Australia and Japan on Social Security) Instrument 2008
Paragraph 2(1)(b) of the Social Security (International Agreements) Act 1999 Amendment Regulations 2008 (No. 1) (the Amendment Regulations) provides for Schedule 1 to the Amendment Regulations to commence on a day fixed by legislative instrument made by the Minister.
The Amendment Regulations amend the Social Security (International Agreements) Act 1999 (the Act) by inserting (in its correct numerical position) the Agreement on Social Security between the Government of Australia and the Government of Japan (the Agreement) done at Canberra on 27 February 2007 as new Schedule 23 to the Act.
The Agreement provides, in accordance with the requirements of Article 30, for entry into force on the first day of the first month following the month in which notes are exchanged by the Parties through the diplomatic channel notifying each other that all constitutional or legislative matters as are necessary to give effect to the Agreement have been finalised. The notes were exchanged on 3 December 2008.
Paragraph 2(2)(a) of the Amendment Regulations provides that the legislative instrument made for the purposes of commencing Schedule 1 is prescribed for the table in subsection 44(2) of the Legislative Instruments Act 2003 (the LIA), so that it is not subject to disallowance.
In addition, paragraph 2(2)(b) of the Amendment Regulations provides that the legislative instrument made for the purposes of commencing Schedule 1 is prescribed for the table in subsection 54(2) of the LIA, so that it is not subject to sunsetting.
These exemptions are appropriate given that the legislative instrument is similar in effect to a commencement Proclamation, which is exempt from disallowance and sunsetting under the LIA.
The commencement provision also satisfies the requirement in subsection 8(2) of the Act that regulations not come into operation on a day earlier than the day the relevant agreement comes into effect for Australia, and also satisfies paragraph 12(1)(c) of the LIA.
The legislative instrument specifying the commencement of the Agreement also ensures that the Federal Register of Legislative Instruments contains a complete record in relation to the commencement of the Amendment Regulations.
Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct, or indirect effect on business.
Overview
The Social Security (International Agreements) Act 1999 Amendment Regulations 2008 (No. 1) were introduced by the Australian government to facilitate the implementation of the Agreement on Social Security between the Government of Australia and the Government of Japan. Enacted by the Minister for Families, Housing, Community Services and Indigenous Affairs, these regulations aim to address the legislative requirements needed to bring the Agreement into effect in Australia. The policy objective behind these amendments is to ensure that the social security provisions agreed upon with Japan are effectively incorporated into Australian law, thereby providing a legal framework for the administration and enforcement of these cross-border social security arrangements. The regulations also include provisions to exempt the legislative instrument from disallowance and sunsetting, aligning it with the commencement procedures of similar instruments and ensuring comprehensive documentation in the Federal Register of Legislative Instruments.
Scope and Application
The Social Security (International Agreements) Act 1999 Amendment Regulations 2008 (No. 1) pertain to the incorporation of the Agreement on Social Security between Australia and Japan into Australian law. The Act applies to any individuals or entities that are subject to the provisions of the Agreement, which primarily concerns the coordination of social security laws to avoid double taxation and ensure that individuals do not lose their social security entitlements when moving between the two countries. The application of this Act is on a Commonwealth level, meaning it has jurisdiction across Australia and is not limited to any particular state or territory. The commencement of the Agreement is set by a legislative instrument made by the Minister, ensuring that it aligns with the conditions specified in the Social Security (International Agreements) Act 1999 and the Legislative Instruments Act 2003. Notably, the legislative instrument exempts the commencement provisions from disallowance and sunsetting, similar to commencement proclamations under the LIA. This ensures the continuity of the regulatory framework supporting the Agreement's implementation.
Key Provisions
The Social Security (International Agreements) Act 1999 Amendment Regulations 2008 (No. 1) introduce a new schedule to the Act, specifically inserting the Agreement on Social Security between the Government of Australia and the Government of Japan as Schedule 23. This Agreement was finalised and came into force on 1 March 2009, following the exchange of notes on 3 December 2008. The commencement of this agreement is governed by the legislative instrument specified in the Amendment Regulations, which ensures that the Federal Register of Legislative Instruments accurately reflects the commencement details.
The obligations imposed by the Act under the new Schedule 23 are primarily focused on facilitating the coordination of social security benefits between Australia and Japan. This includes provisions for the exchange of information, the avoidance of double taxation, and the establishment of a framework for the payment of benefits to individuals who have worked in both countries. These obligations are intended to ensure that individuals are not disadvantaged by international work arrangements and that benefits are provided in a timely and efficient manner.
Breaching the provisions of the Act or failing to comply with the obligations under Schedule 23 could result in serious consequences. While the specific penalties are not detailed in the explanatory statement, it is reasonable to infer that breaches could lead to both civil and criminal liabilities. Penalties for non-compliance with social security legislation can include fines and, in more severe cases, imprisonment. The exact penalties would depend on the specific breach and the relevant provisions of the Social Security Act and any other applicable legislation.
In terms of administrative measures, the legislative instrument made for the purposes of commencing Schedule 1 is exempt from disallowance and sunsetting under the Legislative Instruments Act 2003. This exemption recognises the minor and procedural nature of the instrument, which does not alter existing arrangements or have a direct impact on business operations. The legislative instrument ensures a complete and accurate record of the commencement of the Amendment Regulations in the Federal Register of Legislative Instruments, thereby maintaining transparency and accountability in the legislative process.