A provisional order is the first step in the restitution process. The order is made by the Commissioner of Victims Rights to notify the defendant that an award for compensation or victims support payments have been made to a victim and the Commissioner is seeking to recover the amount of the award or victims support payments from the defendant.
An award of compensation and victims support payments are paid from State funds and will have been paid to the victim before restitution action is commenced. Awards for compensation are comprised of components for injury sustained and actual expenses arising therefrom. Victims support payment are comprised of payments made to victims for financial support and/or recognition payment.
The provisional order sets out:
You don't necessarily have to pay the amount shown in the provisional order by a lump sum payment.
You can make an offer to settle the matter. Offers can be made at any time after the Commissioner has made a provisional order or a restitution order.
You can arrange to pay by monthly instalments.
You can file a written objection to the provisional order. If you are in prison and you file an objection, the matter will usually be stayed until your release from prison.
Read more about
why you should respond to a Provisional Order.
If you ignore the provisional order, the Commissioner may confirm the amount provisionally ordered against you and make a restitution order for the full amount payable forthwith. The restitution order is taken to be a judgment debt and is enforceable as if it were an order made in civil proceedings against you. Enforcement action could include the seizure of goods including your motor vehicle or motorbike and/or garnishing (taking money out of) your salary/wages or financial institution account or placing a charge against any property you may own or jointly have.
If English is not your first language, and you need help understanding the provisional order, call the Community Relations Commission of NSW on 1300 651 500.
Even if you live outside the State of New South Wales, the Commissioner can seek to have the restitution order made enforceable in another State of Australia. This could involve the payment of interest and additional costs on top of the amount of the restitution order. Enforcement action may also result in the seizure of your goods or garnishing of your salary/wages or financial institution account.
For the purposes of the
Victims Rights and Support Act 2013, a 'conviction' includes an order made under section 10 of the
Crimes (Sentencing Procedure) Act 1999 (previously section 556A of the
Crimes Act 1900). Similarly, the juvenile equivalents under section 33 (other than section 33(1) (a) of the
Children (Criminal Proceedings) Act 1987 are a 'conviction'.
The restitution process is a 'civil' process as opposed to the 'criminal' proceedings in which you were convicted of the offence(s) upon which these restitution proceedings are based. The penalty ordered by the court in the criminal proceedings is separate from the restitution proceedings. However, the Commissioner may take into consideration any findings by the Judge or Magistrate in the criminal proceedings or the penalty ordered by the court when determining the amount of any arrangement or order in the restitution proceedings.
Victims Rights and Support Act 2013 provides that a person who is convicted of an offence is liable to pay a Victims Support levy (previously known as Victims compensation levy). This levy does not apply to offences relating to:
the use of offensive language
travelling on public transport without paying the fare or without a ticket
engaging in offensive conduct
The levy is imposed by the court of conviction, and relates to the conviction process. The levy is not administered by Victims Services and does not relate to the claim made by the victim or restitution proceedings conducted by the Tribunal.
Whilst the Act provides that one or more defendants are jointly and severally liable for the full amount awarded or victims support payments made to the victim, a defendant may make submissions why s/he should only pay an equal or proportional share of that amount.
However, if a defendant is seen to be more culpable (responsible) for the injury to the victim than other defendant(s), that defendant may be asked or ordered to pay more than the other defendant(s).
If you are already paying a restitution debt (to Victims Services), you may arrange with the Commissioner to pay the new restitution debt after the existing debt has been paid. If however, you are paying other debts, the restitution debt is as important as those other debts and may be more enforceable if you fail to make arrangements with the Commissioner about payment.
If you petition for bankruptcy after the making of a provisional order, or as a result of being served with a restitution order or arrangement and your petition is successful, your liability may be protected under the provisions of the
Bankruptcy Act 1966.
However, if you are already bankrupt at the time that the provisional order is made against you, your liability for restitution may not be protected by the Act.
If you wish to inquire about bankruptcy or are unsure about your status, you should contact an office of the Australian Financial Security Authority (previously known as Insolvency Trustee Service of Australia (ITSA) or a legal practitioner. However, please note any costs incurred are not met by Victims Services.
You can apply to the Commissioner of Victims Rights, for a payment arrangement which will minimise any disruption to your lifestyle. If you comply with the arrangement, the restitution order will not be enforced or registered with financial credit rating agencies.
No - Victims Services is not authorised to impose penalties in lieu of restitution. Restitution action is taken to recover the amount paid by the government to a victim.
The Act provides for a provisional order to be made within 2 years from
when the claim for an award of compensation or victims support and an amount has been awarded or the maximum amount of victims support payment the victim for which the victim is eligible to receive under the Act has been paid OR
from the date of conviction of a defendant for the offence(s) upon which the restitution proceedings are based.
A victim may have applied for an award of compensation, or apply for victims support payments within 2 years from the date of the relevant act of violence or 2 years of turning 18 for children applying for victims support payments. Victims of domestic violence, sexual assault and child abuse offences may apply for victims support payments within 10 years or 10 years of turning 18 for children. There is no time limit for victims of sexual assault if they were a child at the time of the incident(s).
Under the new victims support scheme, victims may continue to apply for support payments in respect of an act of violence until either 5 years from when the application was first made or the maximum support payment that the victim is eligible to receive under the Act has been paid.
In some cases, therefore, a provisional order may not be made for close to 7 years after an act of violence has occurred. However, if the conviction/s relied upon are of a historical nature, the time between the convictions and the issue of provisional order may be greater
The compensation and restitution processes are separate. After receiving an application for victims support payment, the assessor determining the matter relies on reports and/or information provided by:
the court where the criminal proceedings where dealt with and
medical and/or mental health practitioner(s).
The determination is made "on the balance of probabilities" (the likelihood that the injury occurred as a result of an act of violence).
After the award/victims support payment has been accepted and paid to the victim, the Commissioner may make a Provisional Order for Restitution against the person(s) convicted for an offence causing the injury for which the victim was awarded/victims support payments were made.