What is a Provisional Order?
What can I do if I receive a Provisional Order?
What happens if I do nothing?
I live interstate, what happens if I refuse to pay?
I did not receive a conviction in court; the matter was dismissed with a caution.
I have already served my term in prison for this offence and/or have paid my fines and/or compensation levy.
I was one of two or more co-offenders; will the other defendants be required to pay restitution?
Why did it take so long to receive the Provisional Order?
Why wasn’t I informed when the victim lodged the application?
Can I make an offer to settle the matter?
I can’t afford to pay the amount of restitution, what can I do?
I’m already paying off a debt how do I pay this new debt?
I am bankrupt - what can I do?
I have a new life and family now and I don't want these proceedings to interfere with my financial situation.
Can I convert the restitution order into warrants or a community service order or spend time in gaol?
What if I need an interpreter ?

What is a Provisional Order?

A provisional order is the first step in the restitution process. The order is made by the Director, Victims Services to notify a defendant that an award of compensation has been made to a victim and, as a result of the defendant’s conviction for the act of violence that led to the injury to the victim, the Director is seeking to recover the amount of the award from the defendant.

The award of compensation is paid from State funds and will have been paid to the victim before restitution action is commenced.

The provisional order sets out:

• the amount and date of the award
• the name of the victim
• the injury(ies) sustained by the victim and
• relevant conviction details

You may respond by:

• filing a notice of objection more>>
• applying to enter into an arrangement with the Director as to the amount of restitution to be paid and the manner in which that amount may be made (eg lump sum or monthly instalment) more information on Arrangements>> or
• do nothing - not respond

If you ignore the provisional order, the Tribunal may confirm the amount provisionally ordered against you and make a restitution order. The restitution order is taken to be a judgment of the Local Court and is enforceable under the Local Court (Civil Claims) Act 1970. 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.

Even if you live outside the State of New South Wales, the Tribunal 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.

I did not receive a conviction in court; the matter was dismissed with a caution.

For the purposes of the Victims Support and Rehabilitation Act 1996, 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 (1) (b)-(g) of the Children (Criminal Proceedings) Act 1987 are a 'conviction'.

I have already served my term in prison for this offence and/or have paid my fines and/or compensation levy.

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 Director or Tribunal Member 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 Support and Rehabilitation Act 1996 provides that a person who is convicted of an offence that is punishable by imprisonment is liable to pay a State levy. Again, this levy is separate from restitution.

Whilst the Act provides that one or more defendants are jointly and severally liable for the full amount awarded 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).

Why did it take so long to receive the Provisional Order?

The Act provides for a provisional order to be made within 2 years from the date of an award of compensation to a victim or from the date of conviction of a defendant for the offence(s) upon which the restitution proceedings are based.

A victim may apply for an award of compensation within 2 years from the date of the relevant act of violence. It may take up to 12 months for the victim’s application to be assessed and paid.

In some cases, therefore, a provisional order may not be made for close to 5 years after an act of violence has occurred.

In other cases, the victim may apply for leave to apply out of time. This may result in longer time frames before a provisional order is made.

The Victims Support and Rehabilitation Act 1996 provides for the compensation and restitution processes to be separate. After receiving an application for compensation, 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).

After the award has been accepted and paid to the victim, the Director may make a Provisional Order for Restitution against the person(s) convicted as a result of the act of violence.

Can I make an offer to settle the matter?

Yes, you can make an offer to settle the matter at any time after the Director has made a provisional order against you or after a restitution order has been made by the Tribunal at a hearing or on an ex parte basis.

Select this link for more information on Arrangements and Orders.

You don’t necessarily have to pay the amount provisionally ordered by a lump sum payment.

If you are unable to pay the amount provisionally ordered or to enter into an arrangement to pay by monthly instalments, you should file a notice of objection to the provisional order. If you are in prison and you file an objection, the matter will be usually be stayed until your release from prison.

I’m already paying off a debt how do I pay this new debt?

If you are already paying a restitution debt (to Victims Services), you may arrange with the Director to pay the new 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 Director about payment.

I am bankrupt - what can I do?

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 Insolvency Trustee Service of Australia (ITSA) or a legal practitioner.

You can apply to the Director, Victims Services, for a payment arrangement which will minimise any disruption to your lifestyle. If you comply with the arrangements, the restitution order is not registered in court as a civil debt or with financial credit rating agencies.

Can I convert the restitution order into warrants or a community service order or spend time in gaol?

No - the Tribunal 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.

What if I need an interpreter?

If you do not fully understand the provisional order or any of the information that has been provided to you as English is not your first language, you should seek assistance from the Community Relations Commission of NSW on 1300 651 500.

If you require an interpreter for the restitution hearing, you should contact us and we will arrange for a qualified interpreter to be available to you at the hearing. Victims Services will meet the cost of the interpreter service at the hearing.