Secretary, Department of Social Security v Ferlat, Iolanda [1997] FCA 683

FEDERAL COURT OF AUSTRALIA SOCIAL WELFARE - age pension - Recripocity Agreement with Republic of Italy - period of credited contributions in Italy - whether amount or period of contributions relevant Social Security Act 1991 (Cth) s 43(1), Sch 3, Pt III Art 7(1) Secretary, Department of Social Security v Iolanda Ferlat No. VG 53 of 1997 JUDGE: HEEREY J PLACE: MELBOURNE DATED: 21 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 53 of 1997 ) GENERAL DIVISION )

BETWEEN: SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant AND: IOLANDA FERLAT Respondent

JUDGE: HEEREY J PLACE: MELBOURNE DATED: 21 JULY 1997

MINUTES OF ORDER THE COURT ORDERS THAT: The application is dismissed with costs, including reserved costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 53 of 1997 ) GENERAL DIVISION )

BETWEEN: SECRETARY, DEPARTMENT OF SOCIAL SECURITY Applicant AND: IOLANDA FERLAT Respondent

JUDGE(S): HEEREY J PLACE: MELBOURNE DATED: 21 JULY 1997

REASONS FOR JUDGMENT This appeal from the Administrative Appeals Tribunal concerns the eligibility for an age pension of the respondent, who spent some years in Australia but now lives in Italy. The respondent was born in Italy in 1934 and lived in Australia from 25 May 1960 to April 1969. In 1964 she became an Australian citizen. After returning to Italy in 1969, she worked and made contributions to an Italian pension fund known as INPS between October 1974 and May 1980. In June 1980 she commenced employment with the Commune de Trieste and during this employment made contributions to another pension fund known as CDPEL. She continued to make contributions to that fund until her retirement in 1992. Upon retirement her contributions to the INPS fund were transferred to CDPEL. She is currently in receipt of a pension from the latter fund. On 7 July 1995 she lodged a claim for an Australian age pension. The Legislation The general requirement for eligibility for an Australian age pension is reaching the pension age and having ten years Australian residence: Social Security Act 1991 (Cth) (the Act), s 43(1). However the legislation provides for reciprocity of entitlement to pensions as between Australia and certain other countries. Section 1208(1) provides for a "scheduled international social security agreement" to have effect despite anything in the Act. One such agreement is the "Agreement between Australia and the Republic of Italy Providing for Reciprocity in Matters Relating to Society Security" (the Agreement) which appears in Sch 3 of the Act. In Pt III Article 7(1) of the Agreement it is provided as follows: