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 an order for restitution against the
person.
(2)
An 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.
s 59: Am 2017 No 6,
Sch 2 [7] [8].
60Commissioner’s discretion to make order for
restitution by other person
(1)
If the Commissioner is of the opinion that a
person against whom an order for restitution 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 an 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)
An order may be made against a person under this
section whether or not the person has retained the property
concerned.
(3)
An order may not be made under this section if 2
years or more have elapsed since the order for restitution on which it is
based was made.
(4)
An 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 by the Commissioner or the Tribunal or 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.
s 60: Am 2017 No 6,
Sch 2 [8]–[11].
61Notification of decision
(1)
The Commissioner must serve notice of an order
for restitution 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 order and the procedure for objecting,
and
(ii)
the effect of objecting or failing to
object.
s 61: Am 2017 No 6,
Sch 2 [12] [13].
62Objection to order
(1)
A person served with notice of an order for
restitution may lodge a written objection to 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.
s 62: Am 2017 No 6,
Sch 2 [14].
63Confirmation by Commissioner of order if no
objection
(1)
The Commissioner may confirm an order for
restitution without conducting a hearing if—
(a)
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, or
(b)
the person agrees to the confirmation of the
order and seeks time to pay the amount payable under the order under the
Fines Act
1996.
(1A)
A person cannot object to the making of the order
if the person agrees to its confirmation and seeks a time to pay order under
the Fines Act 1996, and the Fines
Commissioner decides to make the time to pay order sought by the
person.
(2)
Before confirming such an order, the Commissioner
may vary the order by reducing the amount payable under
it.
(3)
s 63: Am 2017 No 6,
Sch 2 [7] [15] [16].
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)
confirm the decision to which the objection was
made (with or without variations) or reverse that
decision.
(2)
The Commissioner may confirm the order for
restitution if the Commissioner confirms the decision to which the objection
was made (with or without variations).
(2A)
Before confirming the order, the Commissioner may
vary the order by reducing the amount payable under it.
(3)
The Commissioner must revoke the order for
restitution 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]; 2017 No 6, Sch 2 [17]–[19].
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.
(8)
In any review proceedings, a person who is a
victim of the relevant offence to which the proceedings relate is competent,
but not compellable, to give evidence or produce documents.
Note—
See also section 113 which provides that an
application for victims support and any documents supporting the application
are, subject to that section, not admissible as evidence in any legal
proceedings.
s 66: Am 2013 No 95,
Sch 2.149 [12]–[15]; 2018 No 34, Sch 1 [14].
67Powers of Tribunal on administrative
review
(1)
On an administrative review, the Tribunal
may—
(a)
confirm the original decision the subject of
review (with or without variations) or reverse that decision,
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.
(2A)
The Tribunal may confirm the order for
restitution the subject of the review proceedings if the Tribunal confirms the
decision to make the order (with or without variations).
(3)
The Tribunal may confirm an order for restitution
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 an order for restitution
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]; 2017 No 6, Sch 2 [12] [20] [21].
68Arrangements for reduction of amount
payable
(1)
The Commissioner and a defendant may enter into
an arrangement with respect to payment under an order for restitution (whether
or not it is a confirmed order) that enables the defendant to satisfy the
order by paying a reduced amount.
(2)
(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 recommenced on application by the
Commissioner for the purposes of confirming the order for restitution for the
total amount payable under the order.
(5)
The Commissioner cannot enter into an arrangement
under this section if the matter has been referred to the Fines Commissioner
for the making of a court fine enforcement order under the Fines Act 1996.
s 68: Am 2017 No 6,
Sch 2 [10] [22]–[24].
69Provisions relating to orders for restitution confirmed by
Tribunal
(1)
The Tribunal may reduce the amount to be paid
under an order for restitution 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), (3)
(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.
s 69: Am 2017 No 6,
Sch 2 [12] [25].
70Amount payable
(1)
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.
(2)
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.
s 70: Rep 2013 No 95,
Sch 2.149 [19]. Ins 2017 No 6, Sch 2 [26].
70AEffect of confirmation of order and due date for
payment
(1)
If an order for restitution is confirmed by the
Commissioner or the Tribunal, the amount payable under the order by the person
or persons against whom the order is made is a debt payable to the
Commissioner.
(2)
The due date for the amount is the due date for
payment specified in a debt notice served on the person.
s 70A: Ins 2017 No 6,
Sch 2 [26].
70BDebt notice to be served
(1)
The Commissioner may, by notice served on a
person against whom a confirmed order has been made (a debt notice), require the
person to pay the amount payable by the person under the
order.
(2)
The notice is to specify the amount payable, the
due date for payment and the person to whom it is to be
paid.
(3)
The due date specified must not be less than 28
days after the notice is served on the person.
(4)
A debt notice must inform the person that, if the
amount payable is not paid by the due date—
(a)
the matter may be referred to the Fines
Commissioner and enforcement action for recovery of the amount may be taken
under the Fines Act 1996,
and
(b)
additional enforcement costs may become payable
under that Act if that enforcement action is taken.
s 70B: Ins 2017 No 6,
Sch 2 [26].
71Orders for restitution to be subject to administrative
review of relevant approvals of victims support
(1)
A confirmed order 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
order for restitution may be made in accordance with this Division as if the
original order had not been made.
(4)
If the Commissioner refers an order for
restitution to the Fines Commissioner for the making of a court fine
enforcement order under the Fines Act
1996, the Commissioner must advise the Fines
Commissioner—
(a)
if an application is made for administrative
review of the decision to approve the making of a recognition payment from
which the order arises, and
(b)
of the outcome of the
application.
s 71: Am 2013 No 95,
Sch 2.149 [20]; 2017 No 6, Sch 2 [27]–[29].
72Enforcement of order for restitution
(1)
The Commissioner has, and is to exercise, the
functions of a registrar of a court under Division 3 of Part 2 of the Fines Act 1996 (as they apply under Part
7A of that Act) in relation to an amount payable under an order for
restitution.
Note—
Under the Fines Act
1996, a restitution amount is taken to be a fine and is to
be referred to the Fines Commissioner for enforcement under that Act if it is
not paid by the due date or if the person required to pay the restitution
amount seeks a time to pay order in respect of the
amount.
(2)
If the Commissioner confirms an order for
restitution following an objection by the defendant, the Commissioner is not
to refer the matter to the Fines Commissioner for the making of a court fine
enforcement order under the Fines Act
1996—
(a)
before the period in which an application may be
made to the Tribunal by the defendant for an administrative review of the
decision to make the order has expired, or
(b)
if the defendant has applied to the Tribunal for
an administrative review of the decision to make the order, until the
application is finally determined.
(3)
If a matter is referred to the Fines Commissioner
for the making of a court fine enforcement order, the Commissioner must
provide the Fines Commissioner with any information about the order for
restitution that the Fines Commissioner reasonably requires to monitor the
status of the order.
s 72: Subst 2017 No
6, Sch 2 [30].
73Joint and several liability
(1)
If 2 or more persons are jointly and severally
liable for the payment of an amount payable under a confirmed
order—
(a)
a debt notice may be served on any of those
persons, and
(b)
in each case, the matter may be referred to the
Fines Commissioner for the making of a court fine enforcement order under the
Fines Act 1996 against the person on
whom the debt notice was served.
(2)
Accordingly, more than one referral, and more
than one court fine enforcement order, may be made in respect of the amount
payable.
(3)
The total amount that may be recovered under the
order (excluding enforcement costs) is not to exceed the total amount payable
under the order for restitution.
(4)
If 2 or more persons are jointly and severally
liable for payment of the amount payable under an order for restitution, a
person who pays an amount in accordance with the liability imposed by this
Part has such rights of contribution or indemnity from the other person or
persons as are just.
s 73: Am 2015 No 58,
Sch 3.93 [3]. Subst 2017 No 6, Sch 2 [30].
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 a confirmed
order.
(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.
s 74: Am 2017 No 6,
Sch 2 [31].
75Access to information about whereabouts of
defendant
Police officers, Transport for NSW and other
Government agencies are authorised to provide the Commissioner with
information about the address of a defendant for the purpose of serving an
order for restitution on the defendant or any other notice required under this
Part.
s 75: Am 2017 No 6,
Sch 2 [32]; 2020 No 30, Sch 4.116.
76, 77
s 76: Rep 2017 No 6,
Sch 2 [33].
s 77: Rep 2017 No 6,
Sch 2 [33].