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Criminal Proceeds Confiscation Act - Proceeds Assessment Order-Charge Over Property

What the law says

Section 88 of the Criminal Proceeds Confiscations Act Queensland states:

  1. On the making of a proceeds assessment order against a person, all the interests of the person in property are, while the amount payable under the order remains unpaid, charged in favour of the State to the extent necessary to secure payment of the amount.
  2. A charge created under subsection (1)-
    • (a) is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this paragraph, have priority over the charge; and
    • (b) has priority over all other encumbrances; and
    • (c) is not affected by any change of ownership of the interest charged, unless the charge stops having effect under subsection (3).
  3. The charge stops having effect if any of the following happens-
    • (a) the proceeds assessment order is discharged on the hearing of an appeal against the making of the order;
    • (b) the amount payable to the State is paid;
    • (c) the person against whom the order is made becomes bankrupt;
    • (d) the interest charged is sold or otherwise disposed of under this Act other than under a condition of a restraining order under this chapter or chapter 3 or by order of the Supreme Court under section 46 or 138;
    • (e) the interest charged is sold to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge.
  4. If a law, whether or not a law of the State, provides for the registration of title to, interests in, or charges over, property charged under subsection (1), the public trustee or an appropriate officer may cause the charge to be registered under that law.

Note that the law with respect to placing a charge of property subject to a Proceed Assessment Orders is set to change later this year. The effect is to provide more detail with respect to the State registering the charge and the release that registration after the debt is paid.  

Keep an eye on this page for updates on when this new legislation comes into effect.

What the police must prove

As noted above the charge over the property comes into effect upon the Court granting a Proceeds Assessment Order in respect of that property against you.  Accordingly the State must meet the requirement of a Proceeds Assessment Order application.

Maximum penalty

If an application for a Proceeds Assessment Order in respect of property is successful, then the State is automatically granted a charge over that property.  A charge is similar to a mortgage over you property, as it has the effect of giving the State an interest in your property over and above your interest.   

However any earlier registered charges or mortgages over you property will have a greater interest than the State.

The purpose of the charge is to ensure that you pay the debt to the State.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

The charge will remain effect until one of the following occurs:

  1. The Proceeds Assessment Order is discharged on the hearing of an appeal against the making of The order; OR
  2. The amount payable to the State is paid; OR
  3. The person against whom the order is made, becomes bankrupt; OR
  4. The interest charged is sold or otherwise disposed of under this Act other than under a condition of a restraining order under this chapter or chapter 3 or by order of the Supreme Court under section 46 or 138; OR
  5. The interest charged is sold to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge.
 

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