Division 2Restitution by
offenders
59Commissioner’s
discretion to make provisional order for restitution by
offender
(1)
If the Commissioner is of the opinion that,
before or after an approval for the giving of financial support or making of a
recognition payment is given, a person has been convicted of a relevant
offence, the Commissioner may make a provisional order for restitution against
the person.
(2)
A provisional order may not be made against a
person if:
(a)
2 years or more have elapsed since:
(i)
the end of the period in which a claim may be
made under an application for victims support under section 40 (6),
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 approval was based.
60Commissioner’s
discretion to make provisional order for restitution by other
person
(1)
If the Commissioner is of the opinion that a
person against whom a provisional order has been made under section 59 has
disposed of property as part of a scheme for the purpose of avoiding a
liability (whether actual or potential) under this Division, the Commissioner
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)
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.
(4)
A provisional order may not be made under this
section (and any such order that has been made ceases to be in force) if the
order on which it is based is not confirmed or any consequent restitution
order is set aside or ceases to be in force.
(5)
The total amount that may be recovered under an
order under this section and under the order under section 59 on which it is
based is not to exceed the amount payable under the order under section
59.
61Notification of
decision
(1)
The Commissioner must serve notice of a
provisional order personally or by post on the person against whom it was
made.
(2)
The notice must:
(a)
set out the terms of the order,
and
(b)
include a statement of the grounds on which the
order was made, and
(c)
set out the effect of sections 63 and 64,
and
(d)
set out an explanation of:
(i)
the right to object, within 28 days after the
notice is served, to the confirmation of the order and the procedure for
objecting, and
(ii)
the effect of objecting or failing to
object.
62Objection to provisional
order
(1)
A person served with a notice of a provisional
order may lodge a written objection to confirmation of the order with the
Commissioner.
(2)
The objection must be lodged within 28 days (or
such longer period, not exceeding 90 days, as the Commissioner may allow)
after the notice was served.
(3)
The grounds for the objection must be stated
fully and in detail in the objection.
(4)
On an objection, the defendant has the onus of
proving the defendant’s case.
63Confirmation by Commissioner
of provisional order if no objection
(1)
The Commissioner may confirm a provisional order
without conducting a hearing if the Commissioner is satisfied that the person
has not lodged an objection within 28 days after notice of the order was
served on the person.
(2)
Before confirming such a provisional order, the
Commissioner may vary the order by reducing the amount payable under
it.
(3)
On confirmation of the provisional order under
this section, the amount payable under the order may be recovered (subject to
section 71) by the Commissioner under section 72.
64Powers of Commissioner on
objection
(1)
After considering an objection, the Commissioner
may:
(a)
allow the objection in whole or in part or
disallow the objection, and
(b)
accordingly reverse, vary or confirm the decision
to which the objection was made.
(2)
On confirmation of the decision the amount
payable under the provisional order concerned may be recovered (subject to
section 71) by the Commissioner under section 72.
(3)
The Commissioner must discharge the provisional
order concerned if the Commissioner reverses the original
decision.
(4)
For the purpose of enabling a defendant to apply
to the Tribunal for an administrative review, the Commissioner is taken to
have failed to determine an objection if 90 days have passed since the
objection was lodged with the Commissioner.
(5)
The Commissioner’s failure to determine an
objection within the period referred to in subsection (4) does not prevent the
Commissioner from continuing to deal with the objection after that period has
expired.
(6)
In calculating a period referred to in subsection
(4), the period between the date on which the Commissioner requests further
information or supporting evidence from the defendant in relation to the
objection and the date on which that further information or supporting
evidence is furnished is excluded.
s 64: Am 2013 No 95,
Sch 2.149 [9].
65Notice of determination of
objection
(1)
The Commissioner must give a defendant who makes
an objection written notice of the determination of the
objection.
(2)
The Commissioner must, in the notice, give the
reasons for disallowing the objection or for allowing the objection in part
only.
(3)
The reasons for a determination of an objection
must set out the matters referred to in section 49 (3) of the Administrative Decisions Review Act
1997 in respect of the
determination.
(4)
The notice must also inform the defendant of the
defendant’s right to make an application for an administrative review
under section 66 in the case of a determination to disallow the objection or
to allow the objection in part only.
s 65: Am 2013 No 95,
Sch 2.149 [10] [11].
66Administrative reviews by
Tribunal
(1)
The defendant may apply to the Tribunal for an
administrative review under the Administrative
Decisions Review Act 1997 of the decision (the original decision) to which an
objection was made if:
(a)
the defendant is dissatisfied with the
Commissioner’s determination of the objection, or
(b)
90 days have passed as referred to in section 64
since the objection was lodged with the Commissioner and the Commissioner has
not determined the objection.
(2)
The applicant’s and respondent’s
cases on an application for an administrative review are not limited to the
grounds of the objection.
(3)
The applicant has the onus of proving the
applicant’s case in an application for an administrative
review.
(4)
An application for an administrative
review:
(a)
following a determination by the Commissioner of
an objection—must be made not later than 60 days after the date of issue
of the notice of the Commissioner’s determination of the objection,
or
(b)
following a failure of the Commissioner to
determine an objection within the relevant 90-day period—may be made at
any time after the end of that period (but must be made as required by
paragraph (a) following a subsequent determination of the objection by the
Commissioner).
(5)
The Tribunal may extend the time for making an
application for an administrative review.
(6)
The following provisions of the Administrative Decisions Review Act
1997 do not apply to an application made under this
section:
(a)
Part 2 of Chapter 3,
(b)
section 55 (3)–(6),
(c)
Division 2 of Part 3 of Chapter
3.
(7)
For the purposes of section 58 (1) (a) of the
Administrative Decisions Review Act
1997:
(a)
the obligation of the Commissioner under that
paragraph to lodge a statement of reasons with the Tribunal in respect of an
application is limited to providing the Tribunal with a statement of reasons
only in respect of the matters arising from the grounds specified in the
application, and
(b)
if one of the grounds specified in the
application relates to a matter raised in an objection determined by the
Commissioner—the Commissioner may rely on reasons previously given to
the defendant by the Commissioner under this Act for the determination of the
objection in explanation of that part of the original
decision.
s 66: Am 2013 No 95,
Sch 2.149 [12]–[15].
67Powers of Civil and
Administrative Tribunal on administrative review
(1)
On an administrative review, the Tribunal
may:
(a)
confirm, vary or reverse the original decision
the subject of review, and
(b)
make any other orders it thinks
fit.
(2)
Subsection (1) does not limit the generality of
Division 3 of Part 3 of Chapter 3 of the Administrative
Decisions Review Act 1997.
(3)
The Tribunal may confirm a provisional order made
under section 59 if satisfied that the applicant for the administrative review
has been convicted of a relevant offence. If the Tribunal is not so satisfied,
it must reverse the original decision.
(4)
The Tribunal may confirm a provisional order made
under section 60 if satisfied that:
(a)
a person against whom a provisional order has
been made 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 applicant 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
reverse the original decision.
s 67: Am 2013 No 95,
Sch 2.149 [16]–[18].
68Arrangements for payment under
order for restitution
(1)
The Commissioner and a defendant may enter into
an arrangement with respect to payment under a provisional order 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 Commissioner and
the defendant to come to such an arrangement, the Tribunal may adjourn review
proceedings for such period as it considers appropriate.
(4)
If the defendant does not comply with such an
arrangement, review proceedings may be taken by the Commissioner for the
purposes of confirming the provisional order for the total amount payable
under the order.
69Provisions relating to orders
for restitution confirmed by Tribunal
(1)
The Tribunal may reduce the amount to be paid
under a provisional order that it confirms 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 an approval for the
giving of financial support or making of a recognition payment to which the
order relates.
(3)
If an order for restitution is made against 2 or
more defendants in respect of the same approval for the giving of financial
support or making of a recognition payment, 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 2 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.
70
s 70: Rep 2013 No 95,
Sch 2.149 [19].
71Orders for restitution to be
subject to administrative review of relevant approvals of victims
support
(1)
An order for restitution does not have any
effect:
(a)
until the period within which an application may
be made to the Tribunal for an administrative review of the decision to
approve the making of a recognition payment from which it arises, or to which
it relates, has expired, or
(b)
if such an application is duly made within that
period, until the application is finally
determined.
(2)
If the approval of the making of a recognition
payment to which such an application relates is set aside or varied as a
result of the an administrative review, the order for restitution ceases to
have effect.
(3)
In the event that the decision is varied, a new
provisional order may be made in accordance with this Division as if the
original order had not been made.
s 71: Am 2013 No 95,
Sch 2.149 [20].
72Enforcement of order for
restitution
(1)
An order for restitution made against a person
may be enforced by the Commissioner as if it were an order made in civil
proceedings against the person to recover a debt due to the
Commissioner.
(2)
The debt arising from the order is taken to be a
judgment debt.
(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.
73Enforcement of orders for
restitution by attachment of prison earnings
(1)
This section applies to an order for restitution
in connection with a relevant offence for which the person liable under the
order is convicted and sentenced to imprisonment or children’s
detention.
(2)
An amount payable under an order for restitution
to which this section applies that is not paid by the due date may also be
enforced by deducting the amount due from the person’s prison
earnings.
(3)
If it is to be so enforced, the Commissioner is
to serve notice of the amount unpaid on the relevant custodial officer, who
may make the appropriate deduction from the person’s prison
earnings.
(4)
In this section:
children’s detention means
detention under an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act
1987.
prison
earnings means:
(a)
in the case of a person sentenced to
imprisonment—the person’s earnings at the correctional centre in
which the person is imprisoned, or
(b)
in the case of a person sentenced to
children’s detention—the funds held on behalf of the person at the
detention centre in which the person is detained.
relevant
custodial officer means:
(a)
in the case of a person sentenced to
imprisonment—the Commissioner of Corrective Services or the governor of
the correctional centre in which the person is imprisoned,
or
(b)
in the case of a person sentenced to
children’s detention—the Secretary of the Department of Family and
Community Services or the person in charge of the detention centre in which
the person is detained.
s 73: Am 2015 No 58,
Sch 3.93 [3].
74Effect 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 approval for the
giving of victims support has been given under Part 4 (being an approval 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
55, 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
55.
(5)
This section does not limit the operation of
section 55 or 102.
75Access to information about
whereabouts of defendant
Police officers, Roads and Maritime Services and
other Government agencies are authorised to provide the Commissioner with
information about the address of a defendant for the purpose of serving a
provisional order on the defendant or taking any action against the defendant
to enforce an order for restitution.
76Charge on property subject to
restitution orders
(1)
The Commissioner 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 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 77, or
(b)
on the sale or other disposition of the land with
the consent of the Commissioner, 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.
77Cancellation of
charges
(1)
The Commissioner may cancel a charge created
under section 76 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.