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 2010 (No. 1)
Commencement (Agreement between Australia and Poland on Social Security) Instrument 2010
Paragraph 2(1)(b) of the Social Security (International Agreements) Act 1999 Amendment Regulations 2010 (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. That day is 1 October 2010.
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 Australia and the Republic of Poland (the Agreement) done at Warsaw on 7 October 2009 as new Schedule 25 to the Act.
The Agreement provides, in accordance with the requirements of Article 26, for entry into force on the first day of the third month following the month in which the Parties notify each other in writing of the completion of their respective statutory and constitutional procedures required for the entry into force of the Agreement. The notification was completed on 5 July 2010.
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, enacted by the Commonwealth Parliament, was introduced to facilitate the implementation of international social security agreements by providing a legislative framework that allows for their incorporation into Australian law. The 2010 amendment to the Act was introduced to address the need to incorporate the social security agreement between Australia and Poland, which was finalised in October 2009. This amendment ensures that the agreement can be legally recognised and enforced within Australia. The Social Security (International Agreements) Act 1999 Amendment Regulations 2010 (No. 1), issued under the authority of the Minister for Families, Housing, Community Services and Indigenous Affairs, set the commencement date for the Poland agreement as 1 October 2010, ensuring alignment with the agreement's effective date as stipulated in Article 26. This legislative instrument also includes provisions to exempt the commencement instrument from disallowance and sunsetting under the Legislative Instruments Act 2003, aligning it with the procedural requirements of commencement proclamations.
Scope and Application
The Social Security (International Agreements) Act 1999 Amendment Regulations 2010 (No. 1) applies to the Agreement on Social Security between Australia and the Republic of Poland, which was executed at Warsaw on 7 October 2009. This Act serves to integrate the Agreement into Australian law by inserting it as Schedule 25. The Agreement came into force on 1 October 2010, marking the date when the relevant statutory and constitutional procedures of both parties were completed. The Act applies to individuals and entities involved in social security matters, impacting those who are covered by the provisions of the Agreement, such as Australian and Polish citizens and their families, including those residing in or travelling between the two countries. The regulations do not specify any exclusions or exemptions from the application of the Agreement, but rather focus on ensuring that the legislative instrument is exempt from disallowance and sunsetting, aligning with the commencement Proclamation under the Legislative Instruments Act 2003. This ensures that the regulations are not subject to disallowance or sunsetting, thus maintaining their legal effect. The scope of the Act is primarily concerned with the enforcement and application of the Agreement, thereby extending the jurisdictional reach to cover international social security agreements.
Key Provisions
The main operative sections of the Social Security (International Agreements) Act 1999 Amendment Regulations 2010 (No. 1) are those that facilitate the incorporation of the Agreement on Social Security between Australia and the Republic of Poland into Australian law. Specifically, the Agreement is to be inserted as new Schedule 25 to the Act (Schedule 1 of the Amendment Regulations). The commencement of this Agreement is fixed by legislative instrument made by the Minister, with the effective date being 1 October 2010 (Paragraph 2(1)(b)). This insertion is designed to ensure that the Agreement is legally enforceable within Australia from the specified date.
The Act imposes several obligations and requirements on the parties and entities it governs. Primarily, it requires the Australian Government to align its social security provisions with those stipulated in the Agreement with Poland. This includes the exchange of information, coordination of social security benefits, and the prevention of double taxation or benefit duplication for individuals who are covered under the social security systems of both countries. Furthermore, the Act mandates that the Minister for Families, Housing, Community Services and Indigenous Affairs must make legislative instruments to facilitate the commencement of the Agreement, ensuring that the legal framework is updated to reflect the international agreement (Paragraph 2(2)(a) and (b)).
In terms of offences, penalties, or civil/criminal consequences for breach, the Social Security (International Agreements) Act 1999 itself does not explicitly detail specific penalties for non-compliance with the international agreements it governs. However, breaches of social security provisions generally fall under the broader criminal and civil laws of Australia. The penalties for such breaches can include fines and imprisonment, depending on the severity of the offence and the specific provisions of the relevant social security legislation. The maximum penalties for breaches of social security laws can vary widely, but they are often substantial, reflecting the seriousness with which such breaches are treated by the Australian legal system.