Art.º 26 · Decreto n.º 28/92 — Entrada em vigor e termo

1 -A presente Convenção entra em vigor no primeiro dia do mês subsequente ao da finalização da troca de notas efectuada pelas Partes por via diplomática, notificando-se mutuamente de que estão cumpridas todas as formalidades constitucionais ou legislativas necessárias para a entrada em vigor da presente Convenção.
2 -Sem prejuízo do disposto no n.º 3, a presente Convenção manter-se-á em vigor até expirar um período de 12 meses a contar da data em que uma Parte receba da outra uma notificação, por via diplomática, indicando a intenção da outra Parte de denunciar a presente Convenção.
3 -No caso de a presente Convenção deixar de vigorar nos termos do n.º 2, a Convenção continuará a produzir efeitos relativamente a todas as pessoas que:
1. a)À data em que a Convenção deixou de vigorar se encontrem a receber prestações; ou
2. b)Anteriormente à data em que expirar o período mencionado nesse número, tenham requerido e pudessem ter direito a receber prestações;
por aplicação da presente Convenção.
Em fé do que os abaixo assinados, devidamente autorizados para o efeito, pelos respectivos Governos assinaram a presente Convenção.
Feito em duplicado, em Lisboa, a 30 de Abril, em português e inglês, fazendo igualmente fé ambos os textos.
Pelo Governo de Portugal:
José Albino da Silva Peneda.
Pelo Governo da Austrália:
Graham Richardson.
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF PORTUGAL AND THE GOVERNMENT OF AUSTRALIA ON SOCIAL SECURITY.
The Government of the Republic of Portugal and the Government of Australia:
Wishing to strengthen the existing friendly relations between the two countries, and
Resolved to coordinate their social security systems:
have agreed as follows:
PART I
General provisions
Article 1
Definitions
1 -In this Agreement, inless the context otherwise requires:
1. a)«Benefit» means, in relation to a Party, a benefit, pension or allowance for which provision is made in the legislation of that Party, and includes any additional amount, increase or supplement that is payable, in addition to that benefit, pension or allowance, to or in respect of a person who qualifies for that additional amount, increase or supplement under the legislation of that Party;
2. b)«Carer's pension» means a carer's pension payable to a spouse under the legislation of Australia;
3. c)«Competent authority» means:
  In relation to Australia: the secretary to the department of social security; and,
  In relation to Portugal: the minister or other corresponding authority responsible for the social security schemes in all or any part of the territory of Portugal;
4. d)«Competent institution» means:
  In relation to Australia: the competent authority for Australia; and,
  In relation to Portugal: the institution responsible under the legislation of Portugal for dealing whith a claim for a Portuguese benefit;
5. e)«Institution» means:
  In relation to Australia: the department of social security; and,
  In relation to Portugal: the body responsible for the implementation of the legislation of Portugal;
6. f)«Legislation» means, in relation to a Party, the laws specified in article 2;
7. g)«Period of residence in Australia», in relation to a person, means a period defined as such in the legislation of Australia, but does not include any period deemed pursuant to article 11 to be a period in which that person was an Australian resident;
8. h)«Portuguese insurance period» means the period of contributions or any equivalent period which has been or can be used to acquire the right to a benefit under Portuguese legislation, but does not include any period considered under paragraph 1 of article 13 as a Portuguese insurance period;
9. i)«Territory» means, in relation to Portugal, the territory of the Republic of Portugal on the European continent and the archipelagos of the Azores and Madeira, and in relation to Australia, Australia as defined in the legislation of Australia;
10. j)«Widow» means:
  In relation to Australia: a de jure widow or a dependent female; and,
  In relation to Portugal: a de jure widow or an unmarried or legally separated woman covered by paragraph 1 of article 2020.º of the Civil Law Code;
  but does not include a woman who is the de facto spouse of a man.
2 -In the application by a Party of this Agreement in relation to a person, any term not defined in this article shall, unless the context otherwise requires, have the meaning assigned to it in the legislation of either Party or, in the event of a conflict of meanings, by whichever of those laws is the more applicable to the circumstances of that person.
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. a)In relation to Australia: the Social Security Act 1947 in so far as the Act provides for, applies to or affects the following benefits:
  Age pensions;
  Invalid pensions;
  Wives' pensions;
  Carers' pensions;
  Benefits payable to widows;
  Unemployment benefits;
  Sickness benefits; and,
2. b)In relation to Portugal:
  1. i)The legislation relating to the general scheme and the special schemes (including the voluntary social insurance scheme and excluding provisions for civil servants or persons treated as such) of the social security system in respect of the following benefits:
    Old age pensions;
    Invalid pensions;
    Survivors' pensions and death grant;
    Sickness and maternity benefits;
    Unemployment benefits;
    Funeral grant; and,
    Family allowance for pensioners (including pensioners under the legislation relating to work injury and occupational diseases);
  2. ii)The legislation relating to work injury and occupational diseases pensions; and,
  3. iii)The legislation relating to the noncontributory scheme in respect of old age, invalid and survivors' pensions.
2 -Unless otherwise provided in this Agreement the laws referred to in paragraph 1 shall not include any treaty or other international agreement or supranational legislation on social security which may be in force between either Party and a third State or third States, or laws or regulations promulgated for their specific implementation.
3 -This Agreement shall apply to laws which extend the legislation of either Party to new categories of beneficiaries only if the two Party so agree in a protocol to this Agreement.
Article 3
Personal scope
This Agreement shall apply to any person who:
1. a)Is or has been an Australian resident; or
2. b)Is or has been subject to the legislation of Portugal;
and, where applicable, to any other person with respect to the rights he or she derives from such a person described in subparagraphs a) or b).
Article 4
Equality of treatment
Subject to this Agreement, all persons to whom this Agreement applies shall be treated equality by a Party in regard to rights and obligations which arise whether directly under the legislation of that Party or by virtue of this Agreement.
Article 5
Voluntary social insurance
As soon as an Australian citizen is deemed to be a resident in Portugal that person shall be entitled to register with the voluntary social insurance scheme under the legislation of Portugal on the same basis as a national of Portugal.
Article 6
Payment of benefits
1 -Subject to paragraph 4, 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 by virtue of 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 reference to that Party in those limitations shall be read also as references to the territory of the other Party.
4 -Notwithstanding any provision of this Agreement unemployment benefits and sickness benefits under the legislation of Australia shall not be paid outside the territory of Australia and sickness and maternity benefits and unemployment benefits under the legislation of Portugal and Portuguese pensions specified in article 2, 1, b), iii), shall not be paid outside the territory of Portugal.
PART II
Provisions on coverage
Article 7
Application of legislation
1 -Except as otherwise provided in this Agreement, the persons to whom this Agreement applies shall be covered by:
1. a)Portuguese legislation if they are resident or employed in Portugal; or
2. b)Australian legislation if they are Australian residents.
2 -Where a person is entitled to claim a benefit under the legislation of a Party that legislation shall also apply to that person.
Article 8
Decisions on coverage
The competent authorities will, in accordance with their countries' respective legislation, decide on the coverage to be applied in the best interests of a person.
PART III
Provisions relating to benefits
SECTION 1
Australian benefits
Article 9
Residence or presence in Portugal or a third State
1 -Where a person would be qualified under the legislation of Australia or by virtue of this Agreement for a benefit except that he or she is not an Australian resident and in Australia on the date on which he or she lodges a claim for that benefit but he or she:
1. a)Is an Australian resident residing in the territory of Portugal or a third State which Australia has concluded an agreement on social security that includes provision for co-operation in the assessement and determination of claims for benefits; and
2. b)Is in Australia, or the territory of Portugal or that third State;
that person shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date.
2 -Paragraph 1 shall not apply to a claimant for a wife's pension or carer's pension who has never been an Australian resident.
Article 10
Spouse related Australian benefits
For the purposes of this Agreement, a person who receives from Australia an Australian benefit due to the fact that the spouse of that person receives, by virtue of this Agreement, another Australian benefit shall be deemed to receive that first-mentioned benefit by virtue of this Agreement.
Article 11
Totalisation for Australia
1 -Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
1. a)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. b)A period of residence in Australia equal to or greater than the period identified in accordance with paragraph 4 for that person;
and a Portuguese insurance period, then for the purposes of a claim for that Australian benefit, that Portuguese insurance period shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the legislation of Australia, to be a period in which that person was an Australian resident.
2 -For the purposes of paragraph 1, where a person:
1. a)Has been an Australian resident for a continuous period which is less than the minimum continuous period required by the legislation of Australia for entitlement of that person to a benefit; and
2. b)Has accumulated a Portuguese insurance period in two or more separate periods that equals or exceeds in total the minimum period referred to in subparagraph a);
the total of the Portuguese insurance periods shall be deemed to be one continuous period.
3 -Where a period by a person as an Australian resident and a Portuguese insurance period coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this article as a period as an Australian resident.
4 -The period of residence in Australia (as defined in article 1) to be taken into account for the purposes of paragraph 1, b), shall be as follows:
1. a)For the purposes of an Australian benefit that is payable to a person who is not an Australian resident, the minimum period required shall be 12 months, of which at least 6 months must be continuous; and
2. b)For the purposes of an Australian benefit that is payable to an Australian resident, no period of residence in Australia shall be required.
  Article 12
  Calculation of Australian benefits
1 -Subject to paragraphs 2 and 3, where an Australian benefit is payable whether by virtue of 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 only a proportion of any Portuguese benefit paid to that person under the legislation specified in article 2, 1, b), i) or ii), shall be regarded as income. That proportion shall be calculated by multiplying the number of whole months accumulated by that person in a period of residence in Australia (not exceeding 300) by the amount of that Portuguese benefit and dividing that product by 300.
2 -A person referred to in paragraph 1 shall be entitled to receive the concessional assessment of income described in that paragraph only for any period during which the rate of that person's Australian benefit is proportionalised under the legislation of Australia.
3 -When an Australian benefit is payable whether by virtue of this Agreement or otherwise to a person who is resident in the territory of Portugal, Australia shall disregard, when assessing the income of that person:
1. a)Any benefit paid to that person under the legislation specified in article 2, 1, b), iii); and
2. b)Any non-contributory supplement paid to that person by Portugal to bring the amount of that person's Portuguese benefit to the minimum level guaranteed under the legislation of Portugal.
4 -Subject to paragraph 5, where an Australian benefit is payable only by virtue of this Agreement to a person who is in Australia, the rate of that benefit shall be determined by:
1. a)Calculating that person's income according to the legislation of Australia but disregarding in that calculation the Portuguese benefit or benefits received by that person;
2. b)Deducting the amount of the Portuguese benefit or benefits received by that person from the maximum rate of that Australian benefit; and
3. c)Applying to the remaining benefit obtained under subparagraph b) the relevant rate calculation set out in the legislation of Australia, using as the person's income the amount calculated under subparagraph a).
5 -Where a married person is, or both that person and his or her spouse are, in receipt of a Portuguese benefit or benefits, each of them shall be deemed, for the purpose of paragraph 4 and for the legislation of Australia, to be in receipt of one half of either the amount of that benefit or the total of both of those benefits, as the case may be.
6 -If a person would receive an Australian benefit except for the operation of paragraph 4 or except for that person's failure to claim the benefit, then for the purposes of a claim by that person's spouse for a payment under the legislation of Australia that person shall be deemed to receive that benefit.
7 -The reference in paragraph 6 to payment under the legislation of Australia to the spouse of a person is a reference to a payment of any benefit, pension or allowance payable under the Social Security Act 1947 as amended from time to time and whether payable by virtue of this Agreement or otherwise.
SECTION 2
Portuguese benefits
SUBSECTION 1
Old-age, invalid and survivors' pensions
Article 13
Totalisation for Portugal
1 -Where this Agreement applies and there is a Portuguese insurance period that is:
1. a)Less than the period necessary to give a claimant entitlement to the benefit claimed under the legislation of Portugal; and
2. b)Equal to or greater than the period mentioned in paragraph 3 for that benefit;
then any period of residence in Australia by the contributor to whom that Portuguese insurance period was credited shall be deemed to be a Portuguese insurance period.
2 -For the purposes of this article, where a Portuguese insurance period and period of residence in Australia coincide, the period of coincidence shall be taken into account once only as a Portuguese insurance period.
3 -The Portuguese insurance period to be taken into consideration for the purposes of paragraph 1, b), shall be 12 months.
4 -For the purposes of this article the upper age limit for a woman, set in the definition of a period of residence in Australia in the legislation of Australia, shall be raised to the age pension age for a woman for the purposes of claiming an old age pension under the legislation of Portugal.
Article 14
Rules for the granting of Portuguese pensions
1 -Subject to paragraph 3, the Portuguese institution shall determine the rate of Portuguese benefits in accordance with Portuguese legislation and, in relation to old age pension, invalid pension and survivor's pension, the calculation shall be based directly and exclusively on Portuguese insurance periods and equivalents completed under Portuguese legislation.
2 -If the total of any pensions paid by both Parties to a person residing in Portugal is less than the minimum pension fixed by Portuguese legislation, the competent institution of Portugal will pay to that person an amount equal to that difference.
3 -For the purposes of calculating any supplement to be paid by Portugal to an Australian resident to bring Portuguese benefit paid, other than by virtue of this Agreement, to that person to the minimum level fixed by Portuguese legislation, any Australian benefit paid to that person by virtue of this Agreement shall not be taken into account.
4 -Entitlement to Portuguese pensions paid by virtue of this Agreement shall have regard to occupational activity carried out in the territory of Australia as if that activity was carried out in the territory of Portugal.
5 -In the assessment of income for the calculation of the rate of a spouse's supplement under the legislation of Portugal, wife's pension payable under the legislation of Australia shall not be taken into account.
SUBSECTION 2
Other Portuguese benefits
Article 15
Sickness and maternity benefits
Where a person, after his or her last arrival in the territory of Portugal, has accomplished a contribution period under Portuguese legislation for the purposes of eligibility for a sickness or maternity benefit under that legislation, the periods of residence in Australia shall be deemed as periods accomplished under Portuguese legislation, provided that they do not coincide.
Article 16
Unemployment benefit
Where a person, after his or her last arrival in the territory of Portugal, has accomplished a contribution period of at least four weeks under Portuguese legislation for the purposes of eligibility for unemployment benefit under that legislation, the periods of residence in Australia, during which an occupational activity has been pursued as an employee or Australian unemployment benefit has been awarded as a result of no longer being an employee, shall be deemed as periods accomplished under Portuguese legislation, provided that they do not coincide.
Article 17
Family allowances for pensioners
Family allowances payable under the legislation of Portugal:
1. a)Shall be payable by virtue of this Agreement to pensioners who are residing in Australia and receiving a pension under the legislation of Portugal be they Australian citizens or Portuguese nationals;
2. b)Shall not preclude the payment of family allowance under the Social Security Act 1947 of Australia as amended from time to time;
and shall for the purposes of reciprocity in relation to this Agreement be regarded as the Portuguese benefit equivalent to those Australian benefits described as additional pension and mothers' and guardians' allowances for children.
Article 18
Pensions for accidents at work and occupational diseases
1 -Pensions related to incapacity due to work-related accidents or occupational diseases according to Portuguese legislation shall be paid by the competent Portuguese institution whenever a person is subject to the legislation applied by it at the time the accident occurred or at the date the occupational disease has been contracted if that person has been pursuing an occupational activity likely to cause that disease according to the legislation of that Party.
2 -In order to determine the permanent incapacity rate for work-related accidents or occupational diseases under Portuguese legislation, work-related accidents or occupational diseases which qualified a person for a benefit under Australian legislation shall be deemed to have occurred under Portuguese legislation.
PART IV
Miscellaneous provisions
Article 19
Lodgement of documents
1 -A claim, notice or appeal concerning a benefit, whether payable by a Party by virtue of this Agreement or otherwise, may be lodged in the territory of either of the Parties in accordance with administrative arrangements made pursuant to article 23 at any time after the Agreement enters into force.
2 -The date on which a claim, notice or appeal referred to in paragraph 1 is lodged with the competent institution of the other Party shall be treated, for all purposes concerning the matter to which it relates, as the date of lodgement of that document with the competent institution of the first Party.
3 -The reference in paragraph 2 to an appeal document is a reference to a document concerning an appeal that may be made to an administrative body established by, or administratively for the purposes of, the respective legislations.
Article 20
Determination of claims
1 -In determining the eligibility or entitlement of a person to a benefit by virtue of this Agreement:
1. a)A period as an Australian resident and a Portuguese insurance period; and
2. b)Any event or fact which is 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 no matter when they were accumulated or occurred.
2 -The commencement date for payment of a benefit payable by virtue of this Agreement shall be determined in accordance with the legislation of the Party concerned but in no case shall that be a date earlier than the date on which this Agreement enters into force.
3 -Where:
1. a)A claim is made for a benefit payable by one of the Parties by virtue of this Agreement; and
2. b)There are no reasonable grounds for the claimant not to claim a benefit under the legislation of the other Party, whether by virtue of this Agreement or otherwise;
that first-mentioned benefit shall not be paid until a claim is duly lodged for payment of the second-mentioned benefit and the first-mentioned benefit shall not continue to be paid if the claim for the second-mentioned benefit is not actively pursued.
4 -The provisions of paragraph 3 shall in no way affect the rights of a person under the legislation of Portugal to continue to acquire the right to a benefit under that legislation.
5 -Where:
1. a)A benefit is paid or payable by a Party to a person in respect of a past period;
2. b)For all or part of that period, the other Party has paid to that person a benefit under its legislation; and
3. c)The amount of the benefit paid by that other Party would have been reduced had the benefit paid or payable by the first Party been paid during that period;
then:
1. d)The amount that would not have been paid by the other Party had the benefit described in subparagraph a) been paid on a periodical basis throughout that past period shall be a debt due by that person to the other Party; and
2. e)The other Party may determine that the amount, or any part, of that debt may be deducted from future payments of a benefit payable by that Party to that person.
6 -Where the first Party has not yet paid the arrears of benefit described in subparagraph 5, a), to the person:
1. a)That Party shall, at the request of the other Party, pay the amount of the debt described in subparagraph 5, d), to the other Party and shall pay any excess to the person; and
2. b)Any shortfall in those arrears may be recovered by the other Party under subparagraph 5, e).
7 -A reference in paragraphs 3, 5 or 6 to a benefit, in relation to Australia, means a pension, benefit or allowance that is payable under the Social Security Act 1947 of Australia as amended from time to time, and in relation to Portugal means any pension, benefit, allowance or advance made by a competent institution including overpayments which arise because of the payment of Portuguese and Australian benefits.
Article 21
Payment of benefits
1 -If a Party imposes legal or administrative restrictions on the transfer of its currency abroad, both Parties shall adopt measures as soon as practicable to guarantee the rights to payment of benefits derived under this Agreement. Those measures shall operate retrospectively to the time the restrictions were impose.
2 -A Party that imposes restrictions described in paragraph 1 shall inform the other Party of those restrictions within one calendar month of their imposition and shall adopt the measures described in paragraph 1 within three months of the imposition of those restrictions. If the other Party is not so informed or if the necessary measures are not adopted within the set time, the other Party may treat such a failure as a material breach of the Agreement and as sufficient justification for termination or suspension of the Agreement between the Parties.
3 -A benefit payable by a Party by virtue of this Agreement to a person outside the territory of that Party shall be paid without deduction for government administrative fees and charges for processing and paying that benefit.
4 -The payment outside Australia of an Australian benefit that is payable by virtue of this Agreement shall not be restricted by those provisions of the legislation of Australia which prohibit the payment of a benefit to a former Australian resident who returns to Australia, becoming again an Australian resident, and lodges a claim for an Australian benefit and leaves Australia within 12 months of the date of that return.
Article 22
Exchange of information and mutual assistance
1 -The competent authorities shall:
1. a)Advise each other of laws that amend, supplement or replace the legislation of their respective Parties, promptly after the first-mentioned laws are made;
2. b)Advise each other directly of internal action to implement this Agreement and any administrative arrangement adopted for its implementation; and
3. c)Advise each other of any technical problems encountered when applying the provisions of this Agreement or of any administrative arrangement made for its implementation.
2 -The institutions of both Parties shall:
1. a)Advise each other of any information necessary for the application of this Agreement or of the respective legislation of the Parties concerning all matters within their area of competence arising under this Agreement or under those laws;
2. b)Assist one another in relation to the determination of any benefit under this Agreement or the respective legislation within the limits of and according to their own laws; and
3. c)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 States, to the extent and in the circumstances specified in administrative arrangements made in accordance with article 23.
3 -The assistance referred to in paragraphs 1 and 2 shall be provided free of charge, subject to any administrative arrangement made pursuant to article 23.
4 -Any information about a person which is transmitted in accordance with this Agreement to an institution shall be protected in the same manner as information obtained under the legislation of that Party.
5 -In no case shall the provisions of paragraphs 1, 2 and 3 be construed so as to impose on the competent authority or institution of a Party the obligation:
1. a)To carry out administrative measures at variance with the laws or the administrative practice of that or the other Party; or
2. b)To supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Party.
6 -In the application of this Agreement, the competent authority and the institutions of a Party may communicate with the other in the official language of that Party.
7 -In this article the meaning of «legislation» is not confined by any restrictions imposed by article 2.
Article 23
Administrative arrangements
The competent authorities of the Parties shall make whatever administrative arrangements are necessary in order to implement this Agreement.
Article 24
Resolution of difficulties
1 -The competent authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.
2 -The Parties shall consult promptly at the request of either concerning matters which have not been resolved by the competent authorities in accordance with paragraph 1.
Article 25
Review of Agreement
Where a Party requests the other to meet to review this Agreement, the Parties shall meet for that purpose no later than 6 months after that request was made and, unless the Parties otherwise agree, their meeting shall be held in the territory of the Party to which that request was made.
PART V
Final provisions
Article 26
Entry into force and termination
1 -This Agreement shall enter into force on the first day of the month following the finalisation of an exchange of notes by the Parties through the diplomatic channel notifying each other that all constitutional or legislative matters as are necessary to give effect to this Agreement have been finalized.
2 -Subject to paragraph 3, this Agreement shall remain in force until the expiration of 12 months from the date on which either Party receives from the other a note through the diplomatic channel indicating the intention of the other Party to terminate this Agreement.
3 -In the event that this Agreement is terminated in accordance with paragraph 2, the Agreement shall continue to have effect in relation to all persons who:
1. a)At the date of termination, are in receipt of benefits; or
2. b)Prior to the expiry of the period referred to in that paragraph, have lodged claims for, and would be entitled to receive, benefits;
by virtue of this Agreement.
In witness whereof, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
Done in two copies at Lisbon, this 30th day of April, 1991, in the English and Portuguese languages, each text being equally authoritative.
For the Government of the Republic of Portugal:
José Albino da Silva Peneda.
For the Government of Australia:
Graham Richardson.

Artigo 26.º — Entrada em vigor e termo