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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 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 victims support payments are paid from Victims Support Fund and will have been paid to the victim before restitution action is commenced. Victims support payments are comprised of payments made to victims for financial support and/or recognition payment.
The provisional order sets out:
The NSW Department of Justice account details for making your electronic payments are set out below:
The Commissioner will consider any written explanation requesting a reduction in the amount payable. The instalment amount will depend on your ability to pay.
Complete and return the following forms which are sent to you with the Provisional Order:
Application to pay amount of restitution by arrangement or by instalments and tick one of the payment methods listed on the form and
Affidavit of Financial Circumstances.
Objection is a chance for you to tell your side of the story. At the criminal proceedings you may feel that you did not have an opportunity to say what happened from your point of view.
These proceedings are a chance for you to do so. However, it is not an avenue to have the criminal proceedings re-heard.
If you have a good reason to ask for a reduction in the amount of the Provisional Order for Restitution, your written explanation will be considered and may result in a reduced amount to pay.
The Commissioner will consider any written submissions made requesting a reduction in the amount to be recovered.
You will be advised of the Commissioner’s determination of your objection by mail.
You will then have missed the opportunity to tell your side of the story and be considered for a reduction in the amount to be recovered from you.
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 immediately. 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.
Failure to pay the amount of Restitution Order will result in the commencement of referral to the Fines Commissioner and enforcement action for recovery of the amount under the Fines Act 1996 through Revenue NSW. You may be liable for further enforcement costs if this occurs.
You will get a better result or outcome to your restitution matter if you reply to the Provisional Order, and make an objection. Alternatively, you can fill out and return the Application to pay amount of restitution by arrangement or by instalments and the Affidavit of Financial Circumstances. You will also avoid additional costs associated with enforcement action, including interest and court costs.
If you reply for no other reason, it is a chance for you to tell us in writing your side of the story. You may have pleaded guilty to the offence that led to the Provisional Order being made and may not have been able to say what happened from your point of view. The Commissioner of Victims Rights will consider any written submissions made requesting a reduction in the amount to be recovered. However, it is not an opportunity to have the criminal proceedings re-heard. Complete and return an Objection to a Provisional Order for Restitution.
If you were not the only person charged or convicted of the offences(s) that led to the injury to the victim, the Commissioner may be prepared to apportion the amount of the Provisional Order by the number of convicted offenders involved. You just need to ask and provide information to the Commissioner. Again, fill out and return an Objection to a Provisional Order for Restitution. Affidavit of Financial Circumstances and Application to pay amount of restitution by arrangement or by instalments.
If you have a valid reason in seeking a reduction in the amount of the Provisional Order, the Commissioner will consider your written explanation and may reduce the amount you have to pay. You just need to fill out and return the Affidavit of Financial Circumstances and the Application to pay amount of restitution by arrangement or by instalments.
Subject to your financial circumstances, and provided you complete an Affidavit of Financial Circumstances with accurate and current information, and provide supporting documentation, the Commissioner will agree to let you pay your restitution by monthly, fortnightly or weekly instalments; the instalment amount will depend on your ability to pay.
There are now some easy and free ways to pay your monthly instalments. Restitution instalments can be paid by selecting one of the following payment options:
• Direct Debit of your monthly instalment from most bank or other financial institution accounts
• Fortnightly deduction from most Centrelink payments through Centrepay.
• Payway Card which will be provided to you to allow you to make payments by following means;
BPay – Payment from your financial institution account using BPAY Biller Code and Reference on the Payway card.
Australia Post over the counter
Credit card payments (Visa and Mastercard only) Pay on-line at www.payway.com.au using the PayWay Biller Code and Reference on the PayWay Payment Card.
If you wish to make full payment of the Provisional Order in lump sum then you can pay on-line electronically by Electronic Funds Transfer (EFT) into the Department of Justice bank account.
Restitution is separate from the Victims Support levy that you were required to pay following your conviction for the offence(s) that led to the award of financial support and/or recognition payment.
The restitution process is a civil legal process and is separate from your criminal proceedings. If a victim is injured as a result of an act of violence, the person is entitled to apply for financial support and/or recognition payment.
If you have any questions about the restitution process, please contact Victims Services on 1800 633 063 (toll free) and ask for the Restitution Section or send an e-mail to email@example.com
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.
The 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 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 not 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 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 that a provisional order may not be made against a person if:
a) 2 years or more have elapsed since:
b) Civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was 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 awarded.
In some cases, therefore, a provisional order may not be made for close to 7 years after an application for Victims Support has been made.
The Victim’s claim 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 victim,
• the police,
• 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.
The restitution process is a civil legal process and is separate from the criminal proceedings. If a victim is injured as a result of an act of violence the person is entitled to apply for Victims Support.
The Victims Support and Rehabilitation Act 1996 (the Act) provides for the recovery of Victims Support paid, from a person(s) who has been convicted of a relevant offence upon which Victims Support was made to the victim. The issue of the Provisional Order for Restitution is the first step in the restitution process.
The Act provides that a person who is convicted of an offence is liable to pay a Victims Support Levy. This levy is not administered by Victims Services and does not relate to these restitution proceedings. Any enquiries regarding the levy should be referred to the court of conviction.
The Commissioner of Victim Rights may consider any reasonable offer to finalise the matter by either making a lump sum payment or by a partial lump sum payment and the balance payable by instalments. Complete and return the forms set out in Option 2 on the other side of this page.
Where multiple restitution proceedings have been commenced against you, your liability is determined in each matter. These matters may be paid by instalments, with one matter being paid, and on completion, payment will commence on the next matter until all matters have been finalised.
If you need legal advice or assistance regarding this notice, LawAccess NSW provides free legal information, referral and advice service to people who live in New South Wales or have a New South Wales legal problem. You may contact LawAccess NSW by phoning 1300 888 529 between 9am and 5pm on weekdays.
Or, if your first language is not English, you may ring 131 450 and ask an interpreter to contact LawAccess NSW on your behalf.