Division 8Division 8 Recovery of compensation from offenders
In this Division:defendant means the person on whom a provisional order for restitution is served.
notice of objection means notice by the defendant under section 47 of objection to the confirmation of a provisional restitution order.
order for restitution means a provisional order for restitution that is confirmed by the Tribunal under section 48 or 49.
provisional order for restitution means a provisional order for restitution that is made by the Director under section 46 or 46A.
recovery proceedings means proceedings of the Tribunal concerning the confirmation of a provisional order for restitution.
victim means a person to whom an amount has been paid under an award of statutory compensation.
46 Director may make provisional order for restitution by offender
(1) If the Director is of the opinion that, before or after an award of statutory compensation is made, a person has been convicted of a relevant offence, the Director may make a provisional order for restitution against the person so convicted.(2) A relevant offence is:(a) an offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made, or(b) any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence.(3) The Director must cause notice of the provisional order to be served on the person so convicted in accordance with the rules.(4) The notice of the provisional order must:(a) set out the terms of the order, and(b) specify the date on which the award of statutory compensation was made and the facts on which the award was based, and(c) specify the offence to which the order relates and the date on which it is alleged that the person was convicted of the offence, and(d) state that the person has 28 days in which to object to the order by a notice filed in the office of the Director, and(e) state that if the person does not object the order will be confirmed by the Tribunal and become a judgment debt payable by the person, and(f) state that if the person files a notice of objection the Tribunal will conduct a hearing into whether the order should be confirmed, and(g) contain such other particulars as the rules may require.(5) A provisional order for restitution may not be made against a person if:(a) 2 years or more have elapsed since:(i) the date on which the relevant award of statutory compensation was made, or(ii) the date on which the person was convicted of the relevant offence,whichever is the later, or(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 award of statutory compensation was based.
46A Director may make provisional order for restitution by other person
(1) If the Director is of the opinion that a person against whom a provisional order for restitution has been made under section 46 has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, the Director may make a provisional order for restitution against any person:(a) who was a party to the scheme, and(b) who obtained property under the scheme without giving sufficient consideration.(2) A provisional order may be made against a person under this section whether or not the person has retained the property concerned.(3) The Director must cause notice of the provisional order to be served on the person against whom it is made in accordance with the rules.(4) The notice of the provisional order must:(a) set out the terms of the order, and(b) specify the person against whom the restitution order under section 46 has been made and the transaction that formed part of the scheme to avoid the liability under this Division, and(c) state that the person on whom the notice is served has 28 days in which to object to the order by a notice filed in the office of the Director, and(d) state that if the person does not object the order will be confirmed by the Tribunal and become a judgment debt payable by the person, and(e) state that if the person files a notice of objection the Tribunal will conduct a hearing into whether the order should be confirmed, and(f) contain such other particulars as the rules may require.(5) A provisional order may not be made under this section if 2 years or more have elapsed since the provisional order on which it is based was made under section 46.(6) A provisional order for restitution may not be made under this section (and any such order that has been made ceases to be in force) if the order under section 46 on which it is based is not confirmed or any consequent restitution order is set aside or ceases to be in force.(7) The total amount that may be recovered under an order under this section and under the order under section 46 on which it is based is not to exceed the amount payable under the order under section 46.
47 Notice of objection by defendant
(1) A defendant served with a provisional order for restitution may, within 28 days after service, file in the office of the Director a notice of objection to the confirmation of the order.(2) A notice of objection must comply with the rules and must include the grounds of the objection on which the defendant intends to rely.
48 Confirmation by Tribunal of provisional order for restitution if defendant does not object to order
The Tribunal may confirm a provisional order for restitution without conducting a hearing if it is satisfied that the defendant has not filed a notice of objection within 28 days after notice of the provisional order was duly served on the defendant.
49 Hearing by Tribunal to confirm provisional order for restitution if defendant objects to order
(1) If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Tribunal must conduct a hearing to determine whether the provisional order should be confirmed (in this Division called recovery proceedings).(2) The Tribunal may confirm a provisional order made 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. If the Tribunal is not so satisfied, it must discharge the provisional order.(2A) The Tribunal may confirm a provisional order made under section 46A if satisfied that:(a) a person against whom a provisional order for restitution has been made under section 46 has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and(b) the defendant was a party to the scheme and obtained property under the scheme without giving sufficient consideration.If the Tribunal is not so satisfied, it must discharge the provisional order.
(3) The Tribunal may vary a provisional order for restitution that it confirms.
50 Arrangement between Director and defendant as to payment under order for restitution
(1) The Director and a defendant may enter into an arrangement with respect to payment under a provisional order for restitution or any such order that is confirmed.(2) Such an arrangement may relate to the time for payment or to a reduction in the total amount payable under the order, or both.(3) For the purpose of enabling the Director and the defendant to come to such an arrangement, the Tribunal may adjourn recovery proceedings for such period as it considers appropriate.(4) If the defendant does not comply with such an arrangement, recovery proceedings may be taken for the purposes of confirming the order for restitution for the total amount payable under the order.
51 Provisions relating to orders for restitution
(1) The Tribunal may, when it confirms a provisional order, 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.(2) The maximum amount that may be ordered to be paid under an order for restitution (whether made against one or more defendants) is the amount that has been paid to the victim under the award of statutory compensation to which the order relates.(3) If an order for restitution is made against two or more defendants in respect of the same award of statutory compensation, each of the defendants is jointly and severally liable under the order.(4) If the Tribunal decides under subsection (1) to reduce the amount payable by a defendant under an order made against two or more defendants, the Tribunal may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order.
52 Procedural and evidentiary provisions relating to recovery proceedings
(1) Subject to this Division and the rules, recovery proceedings must be determined:(a) in accordance with the rules of evidence, and(b) in accordance with the practice and procedure of the Local Court in its exercise of civil jurisdiction,in the same way as proceedings on a statement of claim are determined by the Local Court in its General Division.(2) The victim to whom recovery proceedings relate is competent, but not compellable, to give evidence in the proceedings.(3) Despite any rule of law to the contrary, evidence given by the victim:(a) in any application for an award of statutory compensation, or(b) in any hearing relating to that application, or(c) in any other proceedings (whether civil or criminal) arising from substantially the same facts as those on which the award of statutory compensation was based,is admissible in recovery proceedings.(4) If evidence so given by the victim is admitted in recovery proceedings but the victim does not attend as a witness in the proceedings, that evidence must be given no greater weight than is appropriate as a consequence of there having been no opportunity for the victim to be cross-examined in relation to that evidence.(5) The Tribunal does not have jurisdiction to order payment of costs in relation to recovery proceedings.(6) A person (other than a public servant) who is required to attend or to give evidence at recovery proceedings is entitled to be paid such allowances and expenses as may be prescribed by the rules.
53 Orders for restitution to be subject to appeals against relevant awards of statutory compensation
(1) An order for restitution does not have any effect:(a) until the period within which an appeal may be made against the award of statutory compensation from which it arises, or to which it relates, has expired, or(b) if such an appeal is duly made within that period, until the appeal is finally determined.(2) If the award of statutory compensation to which such an appeal relates is set aside or varied as a result of the appeal, the order for restitution ceases to have effect.(3) In the event that the award is varied, a new provisional order for restitution may be made in accordance with this Division as if the original order had not been made.
54 Order for restitution to be a judgment enforceable by Tribunal
(1) An order for restitution may be enforced under Part 8 of the Civil Procedure Act 2005 as if it were a judgment debt arising from proceedings under Part 3 of the Local Court Act 2007.(2) Interest is payable on the amount payable under an order for restitution in accordance with the provisions relating to interest on the amount payable under such a judgment.(3) Money payable under an order for restitution and not paid may be written off in accordance with a relevant policy on the matter determined by the Minister.(4) Rules may be made for the purposes of this section, and for that purpose may apply the provisions of the Civil Procedure Act 2005, with or without modification.(5) In addition, the rules may make provision for the attachment of the prison earnings of convicted persons for the purposes of enforcing orders for restitution.
55 Appeals against orders for restitution
(1) An order for restitution that is confirmed after a hearing before the Tribunal may be appealed against in the same way as a judgment of the Local Court exercising civil jurisdiction may be appealed against.(2) An appeal may not be lodged under this section if 1 month or more has elapsed since the date on which the order for restitution was made.
56 Orders for restitution may be set aside
(1) The Tribunal, on sufficient cause shown, may, by order, set aside an order for restitution.(2) The Tribunal may stay the execution of a judgment pending the determination of any proceedings to set aside the order for restitution.(3) If the Tribunal makes an order under this section, the defendant is entitled to be paid such amount, by way of costs in relation to the setting aside of the order for restitution, as may be prescribed by the rules.
57 Effect of order for restitution on subsequent civil proceedings
(1) This section applies to civil proceedings in respect of an injury or loss sustained by a person to whom an award of statutory compensation has been made (being an award in respect of which an order for restitution has been made) on the basis of the same facts as those on which the civil proceedings are based.(2) An order for restitution does not affect a person’s right to commence or maintain civil proceedings, and damages in the civil proceedings must be assessed without regard to the order.(3) However, the right of the State, under section 43, to commence or maintain civil proceedings is extinguished by an order for restitution.(4) Subsection (3) does not revive the right of any other person to commence or maintain civil proceedings to the extent to which that right was previously subrogated to the State under section 43.(5) This section does not limit the operation of section 43, 76 or 77G.
58 Access to information about whereabouts of defendant
Police officers, Roads and Maritime Services and other government agencies are authorised to provide the Director with information about the address of a defendant for the purpose of serving a provisional order for restitution on the defendant or taking any action against the defendant to enforce an order for restitution.
58A Charge on property subject to restitution orders
(1) The Director may apply to the Registrar-General for registration of a restitution order in relation to any land owned by the defendant (including any land owned jointly with another person).(2) An application must define the land to which it relates.(3) The Registrar-General must, on application under this section and lodgment of a copy of the restitution order, register the order in relation to the land in such manner as the Registrar-General thinks fit.(4) There is created by force of this section, on the registration of the order, a charge on the land in relation to which the order is registered to secure the payment to the Compensation Fund Corporation of the amount payable under the order.(5) The charge created by force of this section is subject to every charge or encumbrance to which the property was subject immediately before the charge was created and, in the case of land under the provisions of the Real Property Act 1900, is subject to every mortgage, lease or other interest recorded in the Register kept under that Act.(6) Such a charge ceases to have effect in relation to the land:(a) on registration of cancellation of the charge under section 58B, or(b) on the sale or other disposition of the land with the consent of the Compensation Fund Corporation, or(c) on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge, or(d) on full payment of the amount payable under the restitution order,whichever first occurs.
(1) The Compensation Fund Corporation may cancel a charge created under section 58A at any time for good reason.(2) The cancellation of a charge on land does not take effect until the Registrar-General registers the cancellation of the charge.