Social Security (International Agreements) Act 1999 Repeal Regulations 2002 2002 No. 34
EXPLANATORY STATEMENT
Statutory Rules 2002 No. 34
Issued by the Authority of the Minister for Family and Community Services
Social Security (International Agreements) Act 1999
Social Security (International Agreements) Act 1999 Repeal Regulations 2002
Section 25 of the Social Security (International Agreements) Act 1999 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
The purpose of the proposed Regulations is to repeal Statutory Rules No. 215 of 2001 and Statutory Rules No. 245 of 2001.
Statutory Rules No. 215 of 2001 amended the Act, with effect from 1 January 2002, by replacing the existing Agreements on Social Security between Australia and Canada and between Australia and the Kingdom of The Netherlands and by adding the amended Agreement on Social Security between Australia and the Republic of Austria to the Act.
The Regulations repeal Statutory Rules No. 215 of 2001, with effect from gazettal, because the exchange of notes, between Australia and Canada, Australia and the Kingdom of The Netherlands and Australia and the Republic of Austria, through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the new Agreements and the amended Agreement, respectively, had been finalised was not completed. Although Australia was in a position to proceed with the exchange of notes, Canada, the Kingdom of The Netherlands and the Republic of Austria were all unable to complete their necessary constitutional and legislative matters in time for the new Agreements and the amended Agreement to enter into force from 1 January 2002.
Article 22 of the Agreement on Social Security between Australia and Canada provides for the entry into force of the Agreement on a date specified in an exchange of notes between Australia and Canada through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the Agreement have been finalised. This exchange of notes was not completed because Canada was unable to complete the necessary constitutional and legislative matters required.
Article 29 of the Agreement on Social Security between Australia and the Kingdom of The Netherlands provides for the entry into force and termination of the Agreement. The Agreement will enter into force on the first day of the third month following the date of the last notification between Australia and the Kingdom of The Netherlands through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the Agreement have been finalised. This exchange of notes was not completed because the Kingdom of The Netherlands was unable to complete the necessary constitutional and legislative matters required.
Article III, paragraph 1 of the Protocol to the Agreement between Australia and the Republic of Austria on Social Security provides for the entry into force of the Protocol on the first day of the third month following the date of the last notification between Australia and the Republic of Austria through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the Protocol have been finalised. This exchange of notes was not completed because the Republic of Austria was unable to complete the necessary constitutional and legislative matters required.
Statutory Rules No. 245 of 2001 amended the Act, with effect from 1 January 2002, by replacing the existing Agreement on Social Security between Australia and Republic of Portugal.
The Regulations will also repeal Statutory Rules No. 245 of 2001, with effect from gazettal, because the exchange of notes, between Australia and the Republic of Portugal, through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the new Agreement had been finalised was not completed.
Article 32 of the Agreement on Social Security between Australia and the Republic of Portugal provides for the entry into force of the Agreement on the first day of the second month following an exchange of notes between Australia and the Republic of Portugal through the diplomatic channel notifying each other that all constitutional and legislative matters as are necessary to give effect to the Agreement have been finalised. This exchange of notes was not completed because Australia and the Republic of Portugal were both unable to complete the necessary constitutional and legislative matters required. Australia failed to complete the necessary constitutional and legislative matters because the Regulations are still in the period of disallowance in both Houses of the Parliament.
Overview
The Social Security (International Agreements) Act 1999 Repeal Regulations 2002 (F2002B00033) were enacted to repeal certain statutory rules that had been made under the Social Security (International Agreements) Act 1999. These rules, namely Statutory Rules No. 215 and No. 245 of 2001, were intended to reflect changes to agreements on social security between Australia and Canada, the Kingdom of The Netherlands, the Republic of Austria, and the Republic of Portugal, effective from 1 January 2002. However, the proposed repeal was necessitated by delays in the counterpart nations completing their constitutional and legislative processes in time to facilitate the entry into force of the new agreements, leading to the regulations not taking effect as originally planned. The regulations were issued by the Minister for Family and Community Services under the authority of the Social Security (International Agreements) Act 1999, with the aim of ensuring that Australia's legislative framework aligns with the timelines and conditions set out in the international agreements.
Scope and Application
The Social Security (International Agreements) Act 1999 Repeal Regulations 2002 apply to the existing agreements on social security between Australia and Canada, the Kingdom of The Netherlands, the Republic of Austria, and the Republic of Portugal, as previously amended by Statutory Rules No. 215 and 245 of 2001. These agreements were intended to facilitate the coordination of social security systems across borders to avoid double taxation and ensure that individuals are not left without social security benefits when they move between these countries. The regulations effectively nullify the amendments made by the 2001 statutory rules, as the necessary exchange of diplomatic notes confirming the completion of constitutional and legislative requirements in each country had not been completed by the effective date of the amendments. The repeal applies on the date of gazettal of the regulations, thereby nullifying the amendments that were to take effect from 1 January 2002. This repeal is a result of Canada, the Kingdom of The Netherlands, the Republic of Austria, and the Republic of Portugal being unable to complete the necessary domestic procedures in time for the new agreements to enter into force.
Key Provisions
The main provisions of the Social Security (International Agreements) Act 1999 Repeal Regulations 2002 (No. 34) involve the repeal of certain regulations related to social security agreements between Australia and other countries. Specifically, section 2 of the Regulations repeals Statutory Rules No. 215 and No. 245 of 2001, which were intended to amend the Social Security (International Agreements) Act 1999 (the Act) as of 1 January 2002. Statutory Rules No. 215 of 2001 sought to replace the existing agreements on social security between Australia and Canada, Australia and the Kingdom of The Netherlands, and Australia and the Republic of Austria with new or amended agreements. Statutory Rules No. 245 of 2001 aimed to replace the existing agreement between Australia and the Republic of Portugal with a new agreement. The Regulations now repeal these Statutory Rules because the necessary exchange of diplomatic notes between the countries involved was not completed in time for the new agreements to take effect on 1 January 2002.
The Act imposes certain obligations on the parties involved to ensure that all constitutional and legislative matters are finalised before new social security agreements can enter into force. For instance, Article 22 of the Agreement between Australia and Canada, Article 29 of the Agreement between Australia and the Kingdom of The Netherlands, and Article III, paragraph 1 of the Protocol to the Agreement between Australia and the Republic of Austria all stipulate that the agreements will only become effective once the necessary notifications have been exchanged through diplomatic channels, confirming that all required constitutional and legislative matters have been finalised. Similarly, Article 32 of the Agreement between Australia and the Republic of Portugal specifies that the agreement will enter into force following the completion of the necessary diplomatic notifications. These obligations are crucial to ensure that the agreements are legally binding and enforceable in all signatory countries.
Failure to complete the necessary constitutional and legislative matters within the stipulated timeframes can result in significant consequences. The Regulations themselves are void if the new agreements do not enter into force by their intended date, as the conditions outlined in the relevant articles of the agreements have not been met. This means that the intended amendments to the Act, which were meant to incorporate the new social security agreements, will not be implemented as planned. Additionally, the inability of the involved countries to finalise their constitutional and legislative requirements could potentially lead to legal uncertainties and complications in the administration of social security benefits for individuals moving between these countries. This situation underscores the importance of timely coordination and cooperation between the signatory nations to avoid such legislative gaps and ensure the smooth operation of international social security agreements.