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Guide 10 - Recovery of Compensation from Offenders

Where an award of statutory compensation is made and the offender has been convicted of a relevant offence, the Director may make a provisional order for restitution against the person so convicted and must cause notice of that provisional order to be served on the convicted person in accordance with the rules Section 46(2) defines relevant offence.
Conviction includes an order under Section 10 of theCrimes (Sentencing Procedure) Act 1999(formerly section 556A of theCrimes Act 1900) and (except in Part 4) an order made under section 33(1)(b)-(g) of theChildren (Criminal Proceedings) Act 1987.

The provisional order must be made within 2 years of the date on which the relevant award of statutory compensation was made or the date on which the person was convicted of the relevant offence whichever is the later (section 46(5)).

The provisional order must be served on the convicted person in the manner set out in clause 14 of Part 5 of the Compensation Rule 1997.

The information which the provisional order is to contain is set out in section 46(4).

The Director’s Notice of Provisional Order advises that a defendant may respond in one of the following ways:

  1. pay the full amount of the provisional order
  2. lodge a Notice of Objection to a Provisional order in which event the matter will be listed for a restitution hearing before the Tribunal
  3. negotiate a settlement without a hearing in which event the defendant may make an offer using a form “Application to pay amount of Restitution Order by Arrangement”. The application must be accompanied by a completed Affidavit of Financial circumstances and a completed Notice of Objection to the Provisional Order.

A defendant served with a provisional order for restitution may, within 28 days after service, file a notice of objection or respond 1 and 3 above. If no response 1, 2 or 3 (above) is filed the Tribunal may confirm the provisional order without a hearing (section 48).

Where a notice of objection is filed by a defendant the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed - recovery proceedings (section 49).

On the day of the hearing, an Advocate representing the Director discusses the situation with the defendant with a view to making an arrangement pursuant to section 50. If no such arrangement is made, a hearing takes place at which the Tribunal may confirm a provisional order issued under section 46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made.

When it confirms a provisional order, the Tribunal may reduce the amount to be paid under the provisional order having regard to

(a) the financial means of the defendant, and

(b) such other matters as are in the opinion of the Tribunal relevant to the determination.

Even after a provisional order is confirmed an arrangement for payment may be entered into with the Director (section 50).

Recovery proceedings against convicted persons must be determined in accordance with the rules of evidence and in accordance with the practice and procedure of Local Courts exercising civil jurisdiction in the same way as the determination by a Local Court of an action commenced by way of an ordinary statement of claim within the meaning of theLocal Court (Civil Claims) Act 1970(section 52).

An order for restitution is taken to be a judgement of the Local Court in proceedings on a statement of claim and may be enforced accordingly (section 54).

The Tribunal on sufficient cause shown may set aside an order for restitution and may stay the execution of judgement pending the determination of any proceedings to set aside the order (section 56).

The 1998 amendments to the Act inserted section 46A which enables the Director to issue a provisional order for restitution against a personother than the convicted personin circumstances where the person against whom a provisional order for restitution had been made under section 46 had disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under the Act. See section 49(2A) as to the confirmation of a provisional order made under section 46A.

The 1998 amendments to the Act inserted sections 58A to 58M dealing with charges on property the subject to restitution orders and restraining orders and orders relating to the disposition of property by offenders.

Cec Brahe
Chairperson, Victims Compensation Tribunal
23 August 2000