You may never run a sausage sizzle. The feeling, though, is familiar territory: something ordinary, something small, and a wall of rules that apparently nobody knew about until they were enforced. A neighbour’s stormwater, a dog complaint, a signage warning that somehow becomes a shutdown. Small disputes like this have a habit of swallowing months of your life.

So Episode 36 of Legal Matters, broadcast on 4CRB on 20 October 2026, uses the sausage sizzle the way Andrew Bell uses any matter that walks in his door: not for the sausages, but as a working example of how to take a dispute that feels emotional and take the emotion out of it. Establish what the facts actually are. Work out which rules apply. Separate the outcome you are trying to reach from the argument you are attracted to having. Then find a workable solution rather than a legal win that costs two years and delivers a knockback. Listener questions follow in the same spirit, from estate documents and inherited property through to why a coroner might hold a release for a funeral.

Below is what the episode covered, in the order it unfolded. The recording itself is untouched; the notes simply tidy up the legal detail, flagging where on-air shorthand was answered more precisely afterwards.

Key Topics

• The reported community sausage sizzle shutdown and the facts to establish.
• Food licensing, promotional giveaways and permission to occupy a site.
• A four-step approach to solving a legal problem.
• Advance health directive originals, certified copies and a missing document.
• Transfer duty on inherited property and the role of probate.
• Coronial release delays and practical questions for families.

Listener FAQ Highlighted in This Episode

• Does a free sausage sizzle need a food licence?
• What should I do if council shuts down my event?
• Can I rely on a certified copy of an advance health directive?
• Why might a coroner delay releasing a body?

Key Takeaways

1. Establish the precise facts before deciding who is right.
2. Separate the outcome you want from the anger the dispute creates.
3. Check food requirements and site permissions separately.
4. Do not assume an informal discussion extends a formal deadline.
5. Keep estate planning documents safe and understand the recognised role of certified copies.
6. Distinguish release for a funeral from completion of a coronial investigation.

Annotated Transcript

The following topic summaries follow the broadcast and caller sequence. They are editorial paraphrases, not reconstructed speaker quotations. No chapter timestamps are supplied because the publication audio may be tempo-adjusted.

Segment 1: The sausage sizzle

Topic: A community barbecue, food regulation and site permissions.

Relevant law: Food Act 2006 (Qld) .

The starting point is a reported council intervention at a community barbecue outside a Gold Coast butcher.

Andrew uses the story to explain the questions a lawyer would ask before reaching a conclusion. Where was the barbecue? Who controlled the land? What food approvals existed? What did the council officer actually direct, and under what power?

The episode does not establish the complete circumstances of the reported incident. It should not be read as a finding that the business or council acted unlawfully.

Free food is not automatically exempt

The Food Act 2006 (Qld) gives “sell” a wider meaning than an ordinary purchase. It includes certain promotional giveaways and food given away from a food business.¹

That does not mean every free barbecue needs exactly the same licence. The operator, food, preparation arrangements and applicable exemptions all matter. Food licensing and permission to occupy a particular site are separate questions.

A butcher’s existing approval should not be assumed to cover every cooked-food activity conducted outside the shop.

The footpath question

A shopfront does not establish the legal boundary of the premises.

The relevant area might be private land, common property or part of a public road reserve. Identify the boundary, owner and responsible authority rather than assuming the business owns the area it sweeps or maintains.

Moving a barbecue onto private land may resolve one issue, but it does not automatically resolve food safety, planning, access, insurance or other approval requirements.

See also: Free sausage sizzles and food licences | Responding to council .

Segment 2: Four practical steps

Topic: Separating facts, emotion, law and workable solutions.

Andrew’s central message is to separate the desired outcome from the argument.

1. Establish the facts. Gather the direction, approvals, photographs, boundary information and relevant correspondence.
2. Manage the emotion. Frustration may explain why the issue matters, but it does not identify the legal answer.
3. Apply the relevant rules. Check the actual activity, decision-making power and available response or review process.
4. Look for a workable solution. Consider whether an approved location, amended preparation arrangement or appropriate application could achieve the objective.

Cooking indoors, using a different site or obtaining an approval are possibilities to investigate, not guaranteed workarounds.

If the objective is to restart a community barbecue, the most useful outcome may be a safe, lawful arrangement rather than a long argument about who was right.

For the broader background, see our episodes on challenging government decisions and non-court strategies for resolving government disputes .

See also: What to do if council shuts down an event .

Segment 3: Caller John, documents and inheritance

Topic: An advance health directive, enduring power of attorney and leaving a home to a daughter.

Relevant law: Powers of Attorney Act 1998 (Qld) and Duties Act 2001 (Qld) .

John asks about a missing advance health directive, an enduring power of attorney and leaving a home to his daughter.

These documents serve different purposes. Their execution, storage and production requirements should not be treated as interchangeable.

Advance health directives and EPOAs

Keep originals securely and make sure the appropriate people know where they are.

For advance health directives, follow the clarification above: compulsory registration is not required, and certified copies have an important recognised role. If there is uncertainty about a missing document, seek advice about locating, verifying or replacing it rather than immediately revoking it.

For an enduring power of attorney, certified copies are commonly used, but the institution and transaction may have additional requirements.

Inherited property and transfer duty

Queensland provides an exemption for qualifying distributions of a deceased estate under a will or the intestacy rules.²

That is not a blanket exemption for every transaction between beneficiaries. A later purchase, variation or rearrangement needs separate assessment.

A later sale also does not simply make the inheriting beneficiary liable for transfer duty as seller. Transfer duty, capital gains tax and estate administration costs are different issues.

Probate is not a fixed-price inheritance tax

Probate is a court process concerning the will and the executor’s authority. It is not an inheritance tax, and it is not required for every estate.³

Court charges, advertising, professional fees and other administration expenses should be distinguished. The approximate figure mentioned in the broadcast was not a fixed statutory fee or a quote for every estate.

The executor should check which asset holders require a grant and obtain an estimate suited to the estate.

See also: Advance health directive originals and copies | Advance health directive guide | Enduring power of attorney | Stamp duty in Queensland .

Segment 4: Caller Susan, coronial questions

Topic: A distressing delay before release for a funeral, and what a family can actually do about it.

Relevant law: Coroners Act 2003 (Qld) .

Susan’s daughter died in hospital, in circumstances the family understood to be natural causes, and her body was held for about two weeks before release. On air, Andrew commiserated with the family before explaining what the coronial process involves, and Colin encouraged Susan to put her question in writing rather than relying on phone calls.

Without the coronial file the program could not explain that particular delay, but the process itself explains why holds like this happen.

Why a body is not always released straight away

The coroner releases a body once the coronial process has established what happened. Even when a death in hospital seems natural to a family, the coronial system can still be engaged: hospitals and doctors are required to report certain deaths, and a death is sometimes reported pending confirmation of the medical cause of death.

Common reasons a release waits include:

• an autopsy or further pathology testing, which can take longer than families hope;
• waiting on the treating doctor’s cause-of-death paperwork or certifications;
• procedural checks while the death is formally classified; and
• simple workload in the registry.

Two points of correction from the broadcast. The coroner’s jurisdiction is statutory: it covers reportable deaths, not every Queensland death, and it is not correct that the coroner is “above” other courts.⁴ Release for a funeral is also a different stage from a completed investigation or final coronial findings, as our release delays FAQ explains.

Andrew’s own answer was to hold open what he could do: he told Susan he would investigate how the registry handles family enquiries and report back, since he could not speak to the specific case.

What a family in Susan’s position can actually do

A family member can contact the investigating coronial registry directly, without a lawyer, and ask:

• whether the death was reported and why;
• whether an examination or autopsy is required and how long it is expected to take; and
• what has been scheduled next in the process.

Formal, written requests work better than phone calls, which Susan had already discovered after three calls that went to a secretary. Quote the file reference, ask who is handling the matter and how to ask for a reason for the delay in writing. Access to unpublished coronial documents is a separate process and can require an application with supporting material.⁵

When release is authorised, the coroner will usually release the body promptly so the funeral can proceed. It is the preceding confirmation that takes time, not the release itself.

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.*

Related Episodes

• Episode 35: Self-defence, defending others and estate planning
• Challenging government decisions
• Non-court strategies for government disputes

Related Guides and FAQs

• Free sausage sizzles and food licensing
• Responding to a council event shutdown
• Advance health directives: originals and copies
• Coronial release delays and family enquiries

For advice about your circumstances, contact Bell & Senior Lawyers on (07) 5532 8777.

Relevant Law and Resources

The program used a reported council shutdown at a Gold Coast butcher in Palm Beach as its case study. The article below is news reporting about a disputed event; no council file has been inspected, and nothing in it should be taken as an established finding.

Law and council pages

• Food Act 2006 (Qld) , including the extended meaning of “sell”
• City of Gold Coast: roadside dining permit , the permit regime for outdoor dining or seating on a public footpath
• City of Gold Coast: food business licences for fixed, mobile and temporary premises
• City of Gold Coast: roadside vending permit for selling from a roadside area

Government food safety guidance for sausage sizzles and outdoor cooking

• Queensland Government: food safety for fundraising events
• Queensland Health pocketbook guide for fundraising events (PDF)
• Queensland Government: licences and exemptions for non-profit organisations
• Queensland Government: eating outdoors and barbecue food safety
• Safe Food Queensland: food safety guide for parties and barbecues

The reported story

• News.com.au: Council shuts down butcher’s free sausage sizzle (18 October 2026)

Footnotes

Callers Brian and Ken then ask about leaving assets to grandchildren while excluding an estranged child, and intervening if an aggressive stranger attacks another passenger.

Key Topics

• Self-defence under ss 271 and 272 of the Criminal Code 1899 (Qld)
• Reasonably necessary force and when it must stop
• Acting in good faith to defend another person
• Protecting property and removing trespassers
• Verbal aggression and pre-emptive force
• Estranged adult children, grandchildren and testamentary trusts

Listener FAQ Highlighted in This Episode

• Does being hit first automatically allow you to hit back?
• Can you defend a stranger who is being attacked?
• Can an owner or security guard use force against a trespasser?
• Can verbal aggression alone justify intervention?
• Can grandparents bypass an estranged child in a will?
• Does a testamentary trust prevent a family provision claim?

Key Takeaways

1. Section 271 addresses unprovoked assault, while s 272 applies a stricter framework where the defender provoked the conflict.
2. There is no automatic entitlement to return a blow merely because another person struck first.
3. The availability of a safe way to disengage can be relevant to whether force was reasonably necessary, but there is no single retreat rule for every unprovoked assault.
4. Once force is no longer needed for defence, the justification ends. Anger, intoxication and retribution do not extend it.
5. Section 273 allows a person acting in good faith to use a like degree of lawful force to aid someone under assault.
6. Calling 000, moving to safety and observing carefully may be safer than entering an uncertain confrontation.
7. Sections 274 and 277 permit limited force in property and trespass situations, but do not authorise grievous bodily harm under those provisions.
8. An estranged adult child may bring a family provision claim, while a testamentary trust can manage a grandchild’s inheritance but cannot make the estate claim-proof.

Annotated Transcript

Segment 1: Self-defence and reasonable force

⚖️ Topic: Unprovoked and provoked assaults
Relevant law: Criminal Code 1899 (Qld), ss 271 and 272

Colin: If someone hits you, can you hit them back?

Andrew: It is not that simple. Self-defence is a legal defence to conduct that would otherwise be unlawful. If you are unlawfully assaulted and did not provoke it, you may use force reasonably necessary to make an effective defence, subject to the statutory limits.

Colin: So the answer is not simply, “They hit me first.”

Andrew: Correct. Ask what was needed to stop the force or get away. Introducing a knife or gun may be far beyond what was reasonably necessary unless the circumstances support a reasonable fear of death or grievous bodily harm.

📎 See also: Self-Defence and Assault Charges | Common Assault | Assaults and Violence Offences

Segment 2: When force must stop

⚖️ Topic: Defence compared with retaliation
Relevant law: Criminal Code 1899 (Qld), ss 271 and 272

Andrew: The first defensive act might fall within self-defence, but repeated blows after the attacker is down or leaving can become a serious problem.

Colin: What if the defender is angry or full of adrenaline?

Andrew: Those feelings do not create an ongoing licence to use force. Once the threat is over, further violence is retaliation.

Colin: What about a shove outside a pub, followed by one push to create space and walk away?

Andrew: Potentially, but all facts matter. A defensive push is different from violently pushing someone into a wall and striking them while down.

📎 See also: Self-Defence and Assault Charges | Common Assault

Segment 3: Defending another person

⚖️ Topic: Acting in good faith to aid a person under assault
Relevant law: Criminal Code 1899 (Qld), s 273

Colin: Can self-defence apply when helping someone else?

Andrew: Yes. Section 273 permits a person acting in good faith to aid someone who may lawfully use force in self-defence. The helper may use a like degree of force for that purpose.

Colin: If someone in a car park is grabbing a person yelling for help, can you intervene?

Andrew: Potentially, but call 000 and consider safety first. You may not see a weapon, another offender or a medical crisis. If intervention is necessary, the force must remain directed to stopping the assault.

📎 See also: Defending Another Person in Queensland | Legal Aid Queensland: Personal Safety

Segment 4: Property and trespassers

⚖️ Topic: Limited force to protect property and premises
Relevant law: Criminal Code 1899 (Qld), ss 274 and 277

Andrew: Protecting property differs from defending a person against serious harm. Limited reasonably necessary force may be available, but the property provisions do not permit grievous bodily harm.

Colin: What if someone is trying to enter business premises at night?

Andrew: Ask them to leave and call police. Striking them with a cricket bat simply because they are there could put the owner in serious legal difficulty. If they assault the owner, the separate self-defence provisions may become relevant.

📎 See also: Protecting Property and Removing Trespassers | Citizen’s Arrest in Queensland

Caller Brian: Grandchildren and an estranged child

⚖️ Topic: Family provision and testamentary trusts
Relevant law: Succession Act 1981 (Qld), pt 4

Brian: We are estranged from one adult child. We want to provide for his children, our grandchildren, but not him or his wife. Is that straightforward?

Andrew: A will can specify your beneficiaries and shares, including direct gifts to grandchildren. The complication is that a child is eligible to bring a family provision claim.

Brian: Would a testamentary trust help?

Andrew: It can manage assets for grandchildren and restrict parental control, especially while they are young. It does not prevent the estranged child making a claim against the estate.

📎 See also: Estranged Child, Will and Super | Testamentary Discretionary Trusts | Family Provision Claims | Legal Matters Ep 32

Caller Ken: Aggression at a tram stop

⚖️ Topic: Verbal harassment and defending strangers
Relevant law: Criminal Code 1899 (Qld), ss 245 and 273

Ken: A man at a tram stop was harassing passengers. What if he hit somebody and I hit him to stop it?

Andrew: If he assaulted someone and reasonable force was needed to stop it, s 273 may protect good-faith assistance. You must stop when the threat stops. If he was only behaving badly or speaking aggressively and you struck him first, you could be in trouble.

📎 See also: Verbal Threats and Self-Defence | Defending Another Person

This transcript provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• Legal Matters Ep 36: Sausage Law, Council Rules and Practical Problem Solving

• Legal Matters Ep 34: Wills, Property Insurance, Land Tax and Probate

• Legal Matters Ep 33: Citizen’s Arrest, Self-Defence and Card Surcharges

• Legal Matters Ep 32: Roadside Stops and Family Provision

• Legal Matters: Wills and Estates

The planned discussion about self-defence was postponed because the phone lines remained busy. Andrew and Colin will return to that topic in the next episode, following the citizen’s arrest discussion in Episode 33 .

Key Topics

• Why buyers should arrange insurance promptly and sellers should keep cover until settlement
• What Queensland intestacy rules do when a person dies without a will
• Will instructions by video and the formal two-witness execution requirements
• Home exemptions, taxable value and the individual land tax threshold
• The correct sequence for winding up a self-managed super fund
• When a criminal conviction may become spent rather than erased
• Why banks may require probate and why there is no universal dollar threshold
• Joint tenancy, survivorship and a Titles Queensland Record of Death
• The different functions of an enduring power of attorney and a will
• Why a 1994 will may remain effective but still needs review

Listener FAQ Highlighted in This Episode

• Can a seller cancel building insurance once the sale becomes unconditional?
• Who inherits when a married parent dies without a will?
• Can will instructions and signing be completed by video?
• Why would a long-term homeowner receive land tax correspondence?
• What must happen before an SMSF bank account can be closed?
• Does a conviction disappear after five or ten years?
• When will a bank insist on probate?
• Does a jointly owned home pass through the deceased estate?
• Does an old will expire?
• How does an enduring power of attorney differ from a will?

Key Takeaways

1. Under commonly used Queensland sale contracts, risk may pass to the buyer shortly after the contract date, not only when the contract becomes unconditional. Buyers should arrange cover immediately, while sellers should maintain their own insurance until settlement.
2. Intestacy is not simply a rule that everything passes to the surviving spouse. The statutory result depends on the surviving spouse or spouses, children and the composition of the estate.
3. Video conferencing can assist with instructions, but the final will must satisfy Queensland’s execution requirements. Capacity and undue influence also need attention where the will-maker is elderly or unwell.
4. Queensland land tax is based on the taxable value of relevant land held at midnight on 30 June. A qualifying principal place of residence can be excluded under the home exemption.
5. Winding up an SMSF requires an orderly sequence. Trustees should retain enough money for liabilities, complete the final audit and return, use lawful rollover processes and close the bank account last.
6. A spent conviction is not an expunged conviction. The relevant period is generally ten years for an adult conviction on indictment and five years in other Queensland cases, subject to the legislation, later offending and disclosure exceptions.
7. Probate requirements depend on the asset and the institution. A bank’s internal threshold is not a statutory statewide rule and should be confirmed directly with that bank.
8. Joint-tenancy property passes by survivorship outside the estate, although the surviving owner must update the title. A tenant in common’s share follows the will or intestacy instead.
9. An enduring power of attorney ends on death. The will then governs estate assets, while assets held as joint tenants pass by survivorship.
10. Wills do not expire because of age alone, but marriage, divorce, revocation, a later will and changed circumstances can alter the result.

Annotated Transcript

Opening recap: citizen’s arrest and self-defence

⚖️ Topic: Recap of private arrest powers and the deferred self-defence discussion Relevant law: Criminal Code 1899 (Qld)

Colin: We planned to continue our discussion about self-defence in Queensland. Can we first recap where we finished last week?

Andrew: Last week we discussed citizen’s arrest. A private person can arrest only in limited circumstances, cannot interrogate the person, must not use more force than necessary and must hand the person to police as soon as reasonably practicable. Police can also require assistance with an arrest in limited circumstances.

Colin: We will return to self-defence after taking the callers.

📎 See also: Legal Matters Ep 33, Citizen’s Arrest and Self-Defence | What Are Your Rights If You Are Arrested in Queensland?

Caller Rod: insurance before property settlement

⚖️ Topic: Who should insure a Queensland property between contract and settlement Relevant law: Property Law Act 2023 (Qld) and the particular contract of sale

Rod: I am selling a house and the contract has become unconditional. Who is responsible for the building insurance, and can I cancel mine?

Andrew: The buyer should have insurance once risk has passed under the contract. However, our practical advice to a seller is to maintain insurance until settlement because a contract can still fail or be terminated. For the relatively small premium involved, keep the policy until settlement is complete.

📎 See also: Who Insures a Queensland Property Before Settlement? | Queensland Seller Disclosure Form 2 | Residential Conveyancing Guide

Caller Michael: a parent without a will

⚖️ Topic: Intestacy, letters of administration and executing a will Relevant law: Succession Act 1981 (Qld)

Michael: My 94-year-old mother has no will. She lives with my sister, who cares for her, while my mother’s husband lives separately. If Mum dies with money in a bank account in her sole name, does it go straight to her husband? Can she make a will by video?

Andrew: Without a will, the intestacy rules determine who receives the estate. Where a spouse and children survive, it is not necessarily all paid to the spouse. Your sister may also need advice about whether the circumstances raise a family provision issue. Your mother should make a will if she has capacity and wishes to choose the beneficiaries and executor.

Instructions can be taken by video, but a conventional will must then be properly executed. The will-maker must sign or acknowledge the signature in the presence of two witnesses who are present at the same time, and at least two witnesses must attest and sign in the will-maker’s presence.

Colin: Is dying without a will more difficult for the family?

Andrew: Usually. Instead of relying on an executor appointed by the will, an appropriate person may need a grant of letters of administration. The statutory distribution may also produce a result the deceased never intended.

📎 See also: Who Inherits Without a Will in Queensland? | Can You Sign a Will by Video in Queensland? | Estate Planning 101 | Will Kits in Queensland

Caller George: a land tax exemption letter

⚖️ Topic: Taxable land value and the home exemption Relevant law: Land Tax Act 2010 (Qld)

George: After 38 years in my home, Queensland Revenue Office sent a letter saying the property was exempt from land tax. Friends have received bills. Why is this happening now?

Andrew: Land tax uses statutory land valuations rather than the improved market value of the house. Increasing valuations can bring landholdings closer to the threshold. Ownership structure and other landholdings also matter. If an assessment arrives, obtain taxation advice before trying to restructure because transfer duty and other consequences may follow.

📎 See also: Queensland Land Tax and the Home Exemption | Queensland Revenue Office Land Tax

Caller Robert: winding up an SMSF

⚖️ Topic: Finalising a self-managed super fund and dealing with ATO delay Relevant law: Superannuation Industry (Supervision) Act 1993 (Cth)

Robert: My accountant started winding up my self-managed super fund before June. I have heard nothing from the ATO and the money remains in limbo. Can I close the accounts or move the funds?

Andrew: Do not treat superannuation money as personal funds or move it contrary to the professional wind-up advice. Ask the accountant to confirm what has been lodged and to follow up with the ATO. Also query any automated tax instalment notices that do not reflect the intended closure.

📎 See also: How Do You Wind Up an SMSF? | ATO, How to Wind Up an SMSF

Caller Tim: spent criminal convictions

⚖️ Topic: Rehabilitation periods and disclosure of older convictions Relevant law: Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld)

Tim: I have a criminal conviction and served three months in prison. I believed it could be wiped from a police clearance after ten years. Is that correct?

Andrew: Some eligible convictions can become spent rather than erased. The result depends on the sentence, the court, the time since conviction, later offending and the purpose for which disclosure is sought. Legal Aid Queensland may be able to explain how the legislation applies to your record.

📎 See also: When Does a Conviction Become Spent in Queensland? | Legal Aid Queensland, Criminal Convictions

Caller Sandra: probate, bank accounts and joint tenancy

⚖️ Topic: When probate is required and which assets pass by survivorship Relevant law: Succession Act 1981 (Qld) and Land Title Act 1994 (Qld)

Sandra: My friend Julie lost her de facto partner. Julie is the executor and sole beneficiary. Their home was held as joint tenants, but he had a bank account in his sole name. Can she withdraw the money, and does she need probate?

Andrew: Julie should notify the bank and ask for its deceased-estate requirements. A bank may release a modest balance on production of the will, death certificate, identification and an indemnity, but may require probate for a larger balance or where risk exists. Being the only beneficiary does not remove the bank’s need to verify the executor’s authority.

The home is different. If the registered owners held it as joint tenants, the deceased’s interest passes to Julie by survivorship. She can lodge the required Record of Death material with Titles Queensland to update the register without using probate to transmit that joint-tenancy interest.

Colin: What does probate establish?

Andrew: A grant of probate confirms the will accepted by the Supreme Court and the executor’s authority to administer the estate. It gives asset holders a formal basis for dealing with that executor.

📎 See also: When Is Probate Needed for Bank Accounts and Joint Property? | Do I Need Probate in Queensland? | Avoiding Probate and Family Provision Claims

Caller Cleo: enduring power of attorney and an old will

⚖️ Topic: Lifetime decision-making, joint assets and a will made in 1994 Relevant law: Powers of Attorney Act 1998 (Qld) and Succession Act 1981 (Qld)

Cleo: My husband was seriously injured in 2011 and now lives in a nursing home. Our property and bills are in joint names. I have been told about a power of attorney, and he has a will from 1994. What do those documents do?

Andrew: An enduring power of attorney authorises decisions while the principal is alive, according to its terms. It may cover financial and personal matters and can continue after loss of capacity. A will operates after death.

Assets held as joint tenants generally pass to the surviving joint owner. Sole-name estate assets are dealt with under the will. A will from 1994 does not expire merely because it is old, provided it was valid and has not been revoked or affected by a later event, but it should be reviewed against the current family, ownership and capacity circumstances.

📎 See also: What Happens Without an Enduring Power of Attorney? | Testamentary Capacity and Dementia in Queensland | Tenants in Common vs Joint Tenants | Legal Matters Ep 2, Enduring Power of Attorney

This transcript provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• Legal Matters Ep 33, Citizen’s Arrest and Self-Defence
• Legal Matters, Wills and Estates
• Legal Matters, Wills, Probate and Defamation
• Legal Matters Ep 24, Trusts, Family Violence and Property Settlement
• Legal Matters Ep 2, Enduring Power of Attorney

The episode also explains the card surcharge changes commencing on 1 October 2026. Callers Glenda and David ask about using a phone for GPS navigation and declining casual conversation during a random breath test. Audrey Bell joins Andrew and Colin in the studio during the school holidays.

Key Topics

• When a private person may arrest without a warrant under Queensland law
• Reasonable force, notice of the arrest and immediate delivery to police
• Why security guards generally rely on consent, property rights and the same arrest law as other private citizens
• The safer alternative of recording an incident and reporting it from a distance
• Self-defence during road rage and the point at which defence becomes retaliation
• The qualified defence of a dwelling in Queensland, rather than an unlimited castle doctrine
• Card payment surcharge changes from 1 October 2026
• Using a mobile phone as a GPS under Queensland licence restrictions
• What a driver must provide during an RBT and how to complain about police conduct

Listener FAQ Highlighted in This Episode

• Can an ordinary person arrest a suspected offender in Queensland?
• What force can be used, and how quickly must the person be handed to police?
• Do security guards have powers to search bags or detain suspected shoplifters?
• When does self-defence during a road rage incident become assault?
• Can force be used against an intruder inside a Queensland home?
• Which card surcharges ended from 1 October 2026?
• Can a phone be used as a GPS on an open, P1 or P2 licence?
• Do drivers have to answer casual questions during an RBT?
• Where can a driver complain about intimidating police conduct?

Key Takeaways

1. A private person can arrest without a warrant only within the circumstances authorised by the Criminal Code 1899 (Qld). It is not a general power to detain anyone who appears suspicious.
2. The legal basis differs according to the offence and what the person actually witnessed or reasonably believed. The safer course is usually to call police and preserve evidence.
3. Any force used must be reasonably necessary. More force than the law justifies is unlawful.
4. If practicable, the person making the arrest must explain the cause of the arrest and must then take the arrested person before a justice or immediately deliver them to police.
5. A private person cannot interrogate, punish or prolong the detention of a suspected offender.
6. Security guards do not acquire general police search powers through their job. A request to inspect a bag usually depends on consent or conditions of entry, while physical detention requires a lawful basis.
7. Self-defence protects force that is reasonably necessary against an unlawful assault. Once the danger ends, continued violence can become retaliation and assault.
8. Queensland has a statutory defence of dwelling provision, but not an unlimited American-style castle doctrine. The circumstances, belief and necessity of the force still matter.
9. From 1 October 2026, card network rules removed surcharges for Visa, Mastercard, American Express and eftpos card payments. Other unrelated surcharges can remain if lawfully disclosed.
10. Open and P2 licence holders, and P1 holders aged 25 or over, can use navigation hands-free within the road rules. Learner and P1 drivers under 25 are subject to stricter restrictions.
11. During an RBT, drivers must comply with identification, licence and breath-testing requirements, but generally need not answer exploratory questions.
12. Complaints about police service or conduct can be made to Queensland Police Service, while serious police misconduct can be reported to the Crime and Corruption Commission. Requests for body-worn camera footage should be made promptly.

Annotated Transcript

Segment 1: Card payment surcharges from 1 October 2026

⚖️ Topic: Removal of card payment surcharges and the difference between payment fees and other surcharges
Relevant guidance: Reserve Bank of Australia, Removal of Card Payment Surcharges ; Australian Competition and Consumer Commission, Card Surcharges

Colin: Small and large businesses have been talking about the coming change. What should listeners expect when they use a card?

Andrew: Until the change, a business could pass on its permitted cost of accepting a card as a separate surcharge. From 1 October, the affected card networks will not allow businesses to add that separate card surcharge. Businesses still incur payment costs, so some may reflect those costs in their overall prices instead.

Colin: Does the change cover every fee a customer might see?

Andrew: No. It is directed at card payment surcharges. Weekend, public holiday and other service fees are separate questions. The practical point for consumers is to check the amount charged and ask the business about any card surcharge.

📎 See also: Can Businesses Charge Card Surcharges After 1 October 2026?

Segment 2: The narrow power of citizen’s arrest

⚖️ Topic: Arrest without warrant by a private person
Relevant law: Criminal Code 1899 (Qld) ss 254, 255, 546 and 552

Colin: People picture a shoplifter being chased through a shopping centre and tackled. What is a citizen’s arrest in Queensland?

Andrew: A private person can make an arrest in circumstances allowed by the Queensland Criminal Code. The important problem is that the rules are narrower than people assume. Your authority depends on the offence and on what you have seen or reasonably believe.

Colin: So suspicion alone is not enough?

Andrew: You need a proper legal basis. If you physically detain the wrong person, or the supposed offence did not permit the arrest, you may have to defend your own conduct. A phone is often the better tool. Record what you safely can, call police and keep them informed rather than starting a physical confrontation.

📎 See also: Can You Make a Citizen’s Arrest in Queensland? | What Should I Do If Arrested by Police in Queensland? | Legal Matters Ep 32: Police Roadside Stops Part 2

Segment 3: Force, detention and security guards

⚖️ Topic: Reasonable force and the limits on private security detention
Relevant law: Criminal Code 1899 (Qld) ss 254, 255 and 552

Colin: There must be boundaries on what a person can do after deciding to intervene.

Andrew: Absolutely. Only reasonably necessary force can be used. Hitting someone with a vehicle, prolonged restraint, zip ties or locking a person in a room may be far beyond what the circumstances justify. A private person cannot interrogate someone. The person must be delivered to police as soon as possible.

Colin: What about a shop assistant or security guard who sees a bottle being stolen?

Andrew: A security guard can ask someone to wait or ask to inspect a bag, but the uniform does not create general police powers. A lawful arrest still needs a lawful basis. Large retailers often direct staff not to intervene because an injury, a mistaken accusation or an unlawful detention can cost far more than the goods.

📎 See also: Can a Security Guard Detain or Search a Suspected Shoplifter? | Can You Make a Citizen’s Arrest in Queensland? | Criminal Law Services

Caller: Glenda, using a phone as a GPS

⚖️ Topic: Navigation apps and mobile phone restrictions by licence type
Relevant rules: Queensland Government, Driving and Mobile Phones

Glenda: Is it illegal to use your phone as a GPS while driving?

Andrew: For an open licence holder, a phone can be used hands-free for navigation if it is properly mounted and the driver complies with the road rules. Holding the phone remains unlawful.

📎 See also: Mobile Phone Rules While Driving: Fines, Demerits and Grey Areas | Legal Matters Ep 31: Queensland Police Roadside Stops

Segment 4: Road rage, self-defence and defence of a dwelling

⚖️ Topic: Reasonably necessary force, when a threat ends, and force inside a home
Relevant law: Criminal Code 1899 (Qld) ss 267, 271 and 273

Colin: In a road rage confrontation, another driver gets out, damages your car and punches you. Can you punch back?

Andrew: If possible, stay in the car and avoid the confrontation. Queensland law permits reasonably necessary force in self-defence while the threat continues. The moment the threat ends, the justification ends. If someone is down and no longer a danger, continuing to kick or strike them is not self-defence.

Colin: Does being inside your own home create an unlimited right to attack an intruder?

Andrew: No. Queensland does not have an unlimited American-style castle doctrine. The facts still matter, including what you reasonably believed and why force appeared necessary.

📎 See also: Can I Claim Self-Defence for an Assault Charge? | Can I Carry Something in My Car for Self-Defence? | Legal Matters Ep 32: Police Roadside Stops Part 2

Caller: David, questions and conduct during an RBT

⚖️ Topic: Required cooperation, optional conversation and complaints about police conduct
Relevant law: Police Powers and Responsibilities Act 2000 (Qld) ; Transport Operations (Road Use Management) Act 1995 (Qld)

David: If police pull you over for an RBT, do you have to engage in conversation or answer their questions?

Andrew: Provide the identifying information and licence you are lawfully required to give, and comply with the breath test. You can respectfully decline small talk and exploratory questions about where you have been or what you were doing.

David: An officer recently became aggressive when I did not want to talk, then kept me there for licence and warrant checks. I found it bullying and intimidating.

Andrew: Police should not prolong a stop without a lawful purpose. If you believe the conduct was improper, you can make a complaint. Record the details and act promptly so that any available body-worn camera or other evidence can be identified and preserved.

📎 See also: How Do I Complain About Police Conduct After an RBT? | Do You Have to Answer Police Questions at a Traffic Stop? | What Happens If I Ask Police, Is That a Lawful Direction? | Legal Matters Ep 31: Queensland Police Roadside Stops

This transcript provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• Legal Matters Ep 35: Self-Defence, Defending Others and Estate Planning

• Legal Matters Ep 34: Wills, Property Insurance, Land Tax and Probate

• Legal Matters Ep 32: Police Roadside Stops Part 2, Settlement Extensions and Family Provision Claims

• Legal Matters Ep 31: Queensland Police Roadside Stops, Your Rights and Obligations

Three callers widened the conversation. Ron asked why an agent told him either party can push settlement back five days, George asked whether a daughter adopted out at birth could contest his will, and Sue asked how to structure her will and superannuation around an estranged daughter.

Key Topics

• Recap of Part 1: pulling over, “I don’t know, could you please tell me?”, and the three things you must provide
• Why an RBT or roadside drug test is one of the few reasons police can stop you without suspicion, and why they cannot hold you longer than needed
• Getting out of the car, arrest, and the value of asking “Is that a lawful direction?”
• When police can search your car, the plain view problem, and what happens to evidence from an unlawful search
• Why carrying a bat, bar, torch or knife “for protection” can itself be an offence in Queensland
• The speed round: informal questioning, “If you’re innocent…”, phone access and recording the interaction
• REIQ contracts and the one-off 5 business day settlement extension
• Whether a child adopted out at birth can bring a family provision claim
• Superannuation BDBNs, estranged adult children and testamentary trusts

Listener FAQ Highlighted in This Episode

• Can police search my car if I say no?
• What does “Is that a lawful direction?” actually achieve?
• Can I keep something in the car for self-defence?
• Can police look through my phone, and can I film them?
• Why can either party extend a Queensland property settlement by five days?
• Can a child adopted out at birth contest my will?
• Can I leave my super to two of my three children and give the third a smaller gift?

Key Takeaways

1. Always pull over safely when signalled, and answer “Do you know why I pulled you over?” with “I don’t know, could you please tell me?” so you do not volunteer offences the officer never saw.
2. Give your name, address and licence when asked. Refusing, or giving false details, can be an offence in itself.
3. Random breath and drug testing is compulsory and needs no suspicion, but police should not detain you longer than reasonably needed for that purpose.
4. You do not have to answer exploratory questions such as “Where have you been tonight?” Every answer narrows the explanations you can rely on later.
5. If you are uncomfortable with a request, ask “Is that a lawful direction?” If the answer is yes, comply, including getting out of the car or submitting to arrest. Resisting can be a separate offence even if the arrest proves unlawful.
6. Without consent or a warrant, police generally need a reasonable suspicion of a prescribed circumstance to search your car. Looking through the windows is not a search, and anything in plain view can supply that suspicion.
7. Evidence from an unlawful search is not automatically excluded in Queensland. The court has a discretion, which is another reason to make your lack of consent clear at the time.
8. In Queensland, self-defence is not a reasonable excuse for carrying a knife in public, and carrying everyday objects as weapons can lead to charges. Carry items for their ordinary purpose only.
9. Decline phone access unless police have a warrant or order, and consider recording the interaction once safely stopped.
10. Under standard REIQ contracts, either party can extend settlement once by up to 5 business days without reasons, but time remains of the essence and missing the extended date can cost a buyer the deposit.
11. A Queensland adoption order generally ends the legal parent and child relationship with the birth parent, which makes a family provision claim by a child adopted out at birth very difficult.
12. A valid BDBN can direct super outside the estate. An estranged adult child still has standing to bring a family provision claim, but documented reasons and financial independence weigh heavily against success.

Annotated Transcript

Segment 1: Recap of Part 1 and the “Why did I pull you over?” trap

⚖️ Topic: Pulling over, answering the opening question, and roadside fines Relevant law: Police Powers and Responsibilities Act 2000 (Qld)

Colin: This topic we started tackling last week, the callers flooded in and we didn’t get to finish, so we thought we’d finish the conversation: Queensland Police roadside stops, what you must do and what you do not have to do.

Andrew: The law hasn’t necessarily changed, but the way policing works has, with body-worn cameras and so on. What you say and do will be recorded and used against you; it’s probably not an “if”. We encourage people to be kind to the police, they have a hard job, but it’s also not your job to do the police’s work for them. So, the lights come on and you get asked to pull over. Colin, do you have to pull over?

Colin: I think the answer was unequivocally yes.

Andrew: It is unequivocally yes. If you’re sure it’s a police officer, quickly pull over somewhere safe. The next one, the main question people get wrong: “Colin, do you know why I pulled you over this evening?”

Colin: The answer should be: “I don’t know. Could you please tell me?”

Andrew: That’s right. You don’t want to admit to things the officer didn’t see. “Oh, did I not indicate back there?” or “I thought I was doing 80, was that right?” “No, I was just pulling you over for an RBT, sir, but you’ve now got three more fines!” And some of these fines are very expensive nowadays, around $1,000 for seatbelts or mobile phone use.

Colin: I must admit I was running a little late to the bottle shop, I might have been going a tad too fast, in fact I was, because that’s what the fine said, and a $500 fine ensued.

Andrew: It’s a very expensive cheeky red!

📎 See also: Legal Matters Ep 31: Police Roadside Stops Part 1 | How to Fight a Speeding Fine in Queensland | Demerit Point Limits in Queensland

Caller: Ron, the 5-day settlement extension

⚖️ Topic: Extending the settlement date under a standard REIQ contract Relevant law: REIQ Contract for Houses and Residential Land, cl 6.2; Property Law Act 2023 (Qld)

Ron: I was speaking with my agent and they said that for the settlement date, either party has a 5-day… I don’t know the wording.

Andrew: If you’re buying a house in Queensland, the REIQ standard contract has a 5-day cooling-off period, if that’s…

Ron: No, not the cooling-off, the settlement date!

Andrew: An optional extension of the settlement date can be up to 5 days under the REIQ standard contract.

Ron: Why have a settlement date of, say, the end of October, if the buyer can extend it for 5 days?

Andrew: They can, without a reason, and it’s about fairness to both sides. Previously, if you missed the time, you’d miss the whole deal, and sometimes that has nothing to do with you personally. We’ve had buyers pre-approved with everything done, and we haven’t been able to connect with the bank for the online settlement. Or clearances for a caveat weren’t done by a third party, or council rates requested six weeks earlier hadn’t been finalised. So instead of the whole deal collapsing, and potentially losing a $50,000 deposit, either side can unilaterally extend the time.

This isn’t a freebie, however. At the end of the 5 days, you lose that, so you don’t want to be running settlement on the last day. More than once in our firm over the last 12 months we’ve cancelled a contract and taken the deposit because the other side moved it, then at 3:30 in the afternoon they couldn’t make it. Settlement finishes at 4:00, and at 4:30 we get a call, “Oh, we’re ready to settle.” We can’t do the electronic settlement after 4:00 PM, and our client had received a better offer, so they cancelled and moved on. It’s a safety net, so try to settle on the planned date.

Ron: Very well. Thank you sincerely.

📎 See also: How Does the REIQ 5-Day Settlement Extension Work? | How Long Does Property Settlement Take in Queensland? | What Happens on Settlement Day? | Can I Pull Out of a Contract?

Segment 2: Identification, “Where have you been?” and RBTs

⚖️ Topic: Name, address and licence requirements, and declining exploratory questions Relevant law: Police Powers and Responsibilities Act 2000 (Qld) ; Transport Operations (Road Use Management) Act 1995 (Qld)

Andrew: Can they ask for your licence, your name and your address?

Colin: Going back to memory, I think the answer is yes.

Andrew: Yes. They can ask you for anything, but you don’t have to comply with everything unless it’s a legal direction. This is a legal direction, and if you refuse, or particularly if you supply false information, you could be committing an offence right there. We also asked: “So, Colin, where have you been this evening?”

Colin: You don’t have to answer that. What is the reasoning for them asking it?

Andrew: A lot of these questions are aimed at general intelligence or, if it feels more menacing, at eliminating your ability to challenge things later. If you say you’ve come from the pub, they can get the footage of you drinking there, and you can’t change your story later. You’re narrowing down your possible explanations the more information you give away. You can say, “Do I have to answer that, officer?” or “I’d prefer not to answer that,” or “Why have you pulled me over this evening?” Most of the time they’re either issuing an on-the-spot fine for something they’ve seen, or conducting an RBT. A random breath or drug test is one of the few reasons they can pull you over without suspicion, and they’re not allowed to detain you longer than that task needs. So you can ask, “Officer, are you going to do the random breath test now?”

📎 See also: Drink Driving Limits in Queensland | Drug Driving and Licence Loss in Queensland | Lawful Directions at a Police Stop

Segment 3: Getting out of the car and “Is that a lawful direction?”

⚖️ Topic: Complying with directions, arrest, and preserving your position Relevant law: Police Powers and Responsibilities Act 2000 (Qld) s 790 (assault or obstruct police officer)

Andrew: What if the officer says, “Colin, can you get out of the car, please?”

Colin: I’m guessing I have to take the direction.

Andrew: I would ask, “Is that a direction?” if you feel uncomfortable getting out. If you ask, “Is that a lawful direction?” and they say yes, then get out. The same goes any time police want to arrest you: you say, “Yes, officer,” and put your hands out if that’s what they want. Even if you completely disagree, you can say, “I want to put on record that this is an unjust arrest.” But fighting them, pushing back, refusing a lawful order won’t get you anywhere. You can get in trouble for resisting arrest even if the arrest was unlawful.

Colin: And if you ask, “Is this a lawful direction?” and they say yes and it turns out not to be, you have a defence.

Andrew: You do. “I wouldn’t have let you look in the car unless you told me it was a legal direction.” If they’ve improperly exercised their power, you might have a comeback later in court, particularly with body-worn camera footage, or your own recording. Don’t film while the car is moving, because you might get in trouble for using the phone, but have a dash cam on. If you just comply without asking and it was wrong, they may say, “Well, you consented to it.”

📎 See also: Lawful Directions at a Police Stop | What Are Your Rights If You’re Arrested in Queensland?

Segment 4: Offensive weapons and “I’ve got nothing to hide”

⚖️ Topic: Carrying items for self-defence in a vehicle Relevant law: Weapons Act 1990 (Qld) s 51; Criminal Code 1899 (Qld) s 69 (going armed so as to cause fear)

Andrew: A big one that comes up with vehicle searches: people have things they don’t believe are illegal, but which may be construed that way. You’re not allowed to have an offensive weapon in Queensland for the purposes of defence. So if you say, “I’ve got nothing to hide,” and the officer opens your car and there’s a big metal bar there, they may say you’re going armed and charge you. That may not be the whole story, but if they don’t search your car, they don’t find it. It’s about self-preservation, not doing the police’s job for them. And if anyone asks why you have something, it should be for its ordinary purpose, not for defence. Whether it’s a torch, a baseball bat, a cricket bat or a knife, if you hold it for offensive or defensive purposes rather than its normal utility, you’re carrying a weapon in public, and that can have severe consequences.

📎 See also: Can I Carry Something in My Car for Self-Defence in Queensland? | Self-Defence and Assault Charges in Queensland | Weapons Offences

Caller: George, a daughter adopted out at birth

⚖️ Topic: Whether a biological child adopted out at birth can bring a family provision claim Relevant law: Succession Act 1981 (Qld) Pt 4; Adoption Act 2009 (Qld)

George: Are children who have been adopted able to contest a will? I’ve got an adult daughter I haven’t had contact with; she was adopted at birth. I’ve left all my estate to my younger daughter, who I see regularly.

Andrew: Under the Succession Act in Queensland, a biological child who was adopted out is a bit of a grey area. If they’re your biological child and weren’t adopted, they automatically have standing. A child you adopted is treated just like one of your children. If they were adopted at birth and you’ve had nothing to do with them, looking at the Act, I think they might have standing to start a claim, but the real question is whether they would ordinarily expect to have inherited.

George: I haven’t seen her since then. We had some phone contact probably 25 years ago, and she’s in her 50s now.

Andrew: Then I’d say it’s very unlikely a claim would succeed. It would be up to her to prove why she would ordinarily have inherited from your estate, which sounds unlikely with such limited contact. If you’re not in regular contact and not financially supporting her, the grounds for a family provision claim would be slim.

📎 See also: Can a Child Adopted Out at Birth Contest a Will in Queensland? | Who Can Challenge a Will in Queensland? | Legal Matters Ep 22: Wills, Probate and Family Provision Claims

Segment 5: Breath and drug testing, vehicle searches and plain view

⚖️ Topic: When police can search a car without consent or a warrant Relevant law: Police Powers and Responsibilities Act 2000 (Qld) ss 31 and 32 (searching vehicles without warrant)

Andrew: Drug testing is the same as the RBT. If they ask for a saliva sample, you have to give it, or you’ll be punished under a separate provision. “Can we have a look in your car, Colin? Do you mind? Just a quick look?”

Colin: My initial thought would be yes, but from our discussion, without due cause, they don’t.

Andrew: That’s correct. Unless they have grounds to suspect you’ve committed an offence or they have a warrant, your car is a bit like your house. They may look in the windows, and you can’t stop that, but to actually go through the boot, a bag or anything else, unless you consent, they don’t have the right. If they say, “We are going to search your vehicle,” it’s like the arrest: “Can you lawfully do that? I’m not consenting.” If they continue anyway and find something, it may be an illegal search and the evidence may be thrown out later. In America, on TV, the “fruit of the poisonous tree” is automatically thrown out. Here there’s more discretion, but if you haven’t consented and they search unlawfully, there is a real prospect the evidence can’t be used against you.

Colin: If they can see it, smell it, if it’s in plain sight?

Andrew: Then they’ve got grounds! A brick of marijuana and $50,000 in cash on the back seat changes things. But you don’t need to do roadside lawyering, you need to be clear about what you’re consenting to and what you’re not.

Colin: And the best response is, “Is this a lawful action?”

Andrew: “Do you have the power to do that? Is this a legal direction? I’m not consenting to that.”

📎 See also: Can Police Search My Car in Queensland? | Drug Possession Charges | Drug Diversion Program

Caller: Sue, super, an estranged daughter and testamentary trusts

⚖️ Topic: Structuring super and a will around an estranged adult child Relevant law: Succession Act 1981 (Qld) Pt 4; Superannuation Industry (Supervision) Act 1993 (Cth) s 59 and Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.17A

Sue: I have three children, but one has made herself very estranged from me. I know I can’t totally cut her out of my will. Can I make my other two children the beneficiaries of my super and leave her out of that, but give her a certain amount from my other finances?

Andrew: Superannuation doesn’t form part of your estate if you have what’s called a Binding Death Benefit Nomination, and it’s not subject to the same claims. You can direct the trustee of the super fund to pay those funds to whomever you wish. You can also change your will at any time. Is your estranged daughter financially dependent on you?

Sue: No.

Andrew: Then you could set out your wishes and your personal circumstances, give her a small amount or nothing at all, and make that very clear. It would then be up to her to bring a family provision claim. A third option, if you want to give her funds but don’t think she’s financially responsible, is a testamentary trust: “I leave this amount to my daughter, managed this way by these people, released to her under these circumstances.”

Sue: She can run her own finances. What I really want to know is, if I leave her, say, $20,000, can she contest the will against her siblings?

Andrew: The short answer is yes. Being your daughter, she has automatic standing. That doesn’t mean she’d succeed, but it would be a cost to the estate. If you’ve considered her and the relationship, given what you think is fair, documented why those decisions were made, and had capacity when you made the will, then her chances are probably low if you’re not financially supporting her. If you were supporting her regularly, or she had a significant disability, your estate may have a problem.

📎 See also: Can I Leave an Estranged Child Out of My Super and Will? | Superannuation Binding Death Nominations | Testamentary Discretionary Trusts | Legal Matters Ep 3: Wills and Estates

Segment 6: Speed round, questioning, phones and recording

⚖️ Topic: Informal questioning, the right to silence, phone access and filming police Relevant law: Police Powers and Responsibilities Act 2000 (Qld) ; Invasion of Privacy Act 1971 (Qld)

Andrew: Speed round: “You’re not under arrest, but we just want to have a chat. Can you answer some of our questions?”

Colin: “Is this a lawful direction?”

Andrew: Exactly. Or, “Can I speak to my lawyer?” They shouldn’t keep badgering you if you want a lawyer. “I’ll make an appointment to come in with my lawyer. Can I leave now?” They can’t hold you on the stop forever. Another: “If you’re innocent, why don’t you just answer my questions?”

Colin: I’ve got friends who say, “If you’ve done nothing wrong, what have you got to hide?”

Andrew: “I’d prefer not to. I don’t need to explain my reasons.” You don’t know all the laws, what you might be in trouble for, or whether you’ve been under surveillance. It’s like professional footballers: you wouldn’t expect to run onto a rugby league field and score against a current team. Police do this questioning every day, they’re trained professionals. You’re the amateur. If you can get off the field, it’s probably safer to get off the field.

“Can we have a look at your phone?” Absolutely no. There is more on your phone than anyone has held in history. If they’ve got an order and can compel you, follow the order, but otherwise, “No thank you, I’d prefer not to.” And can you record the interaction? Yes, if you’re safely pulled over. I’d strongly encourage it. Police have body cams, but they don’t necessarily have them on, it may be muted, or you might catch a different angle. Start recording before anything goes bad rather than afterwards.

Colin: Andrew, great information as always. Thanks to Ron, George and Sue for their questions.

Andrew: Thank you. We’ll see you next week. You’re free to go, Colin!

📎 See also: Can Police Search Your Phone at a Traffic Stop? | What Are Your Rights If You’re Arrested in Queensland? | Do I Need a Lawyer for a Traffic Offence?

This transcript provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances. Contact Bell & Senior Lawyers on (07) 5532 8777 or visit bellsenior.com.au.

Related Episodes

• Legal Matters Ep 33: Citizen’s Arrest, Self-Defence and Card Surcharges
• Legal Matters Ep 31: Queensland Police Roadside Stops, Your Rights and Obligations
• Legal Matters Ep 22: Wills, Probate and Family Provision Claims
• Legal Matters Ep 4: Blended Families
• Legal Matters Ep 9: Property, Form 2 and Strata

Key Topics

• What police can and cannot require when they signal you to pull over in Queensland
• Why evading police carries a mandatory minimum penalty and is never worth attempting
• The three things you generally must provide: name, address and driver licence
• Why you do not have to answer questions about where you were, who you were with or what you drank
• Digital driver licence apps and their legal standing with Queensland and New South Wales police
• Whether police can demand access to your mobile phone during a stop
• Body corporate visitor parking, signage and towing powers under Queensland law
• Mutual wills and estate planning where a spouse has lost capacity to dementia

Listener FAQ Highlighted in This Episode

• Do you have to tell police where you have been or how many drinks you have had?
• Do you have to carry your driver licence, and are digital licence apps accepted?
• Can police search your phone without a warrant during a traffic stop?
• Can a body corporate tow a car from a visitor parking bay?
• If my spouse has dementia and can’t manage money, should I change my will so they don’t inherit directly?

Key Takeaways

1. Police have specific statutory grounds to stop a vehicle, including transport compliance, licence checks and random breath or drug testing, but a driver will not always know the reason at the time and should pull over safely regardless.
2. Evading police is a serious offence carrying a mandatory minimum penalty in Queensland, so the safest response to activated lights is always to indicate, slow down and stop in a safe location without getting out of the car.
3. Drivers generally must give their name, residential address and driver licence, and providing false details is a distinct offence, so decline to answer rather than invent an answer.
4. You are not legally required to answer general questions such as where you have been, who you were with, what you have had to drink or why you were driving a particular way, and you can decline politely without being obstructive.
5. An open Queensland driver licence does not need to be carried at all times, though conditions attached to a licence, such as the medical certificate required for drivers over 75, must be carried.
6. Official state digital driver licence apps, including the Service NSW app, are legally valid when shown to police, provided the phone is only accessed once the vehicle is safely stopped.
7. Police generally cannot search or demand access to a mobile phone without a warrant or a specific statutory power, and voluntarily handing over or unlocking a phone removes the ability to object later.
8. Drivers should stay inside the vehicle at a roadside stop unless specifically asked to get out, in line with Queensland Police safety guidance.
9. A body corporate can only enforce visitor parking limits and pursue towing where the bays are clearly signed and supported by a registered by-law defining a genuine visitor and any time limits.
10. Where a spouse has lost capacity and would inherit under an existing will, an attorney under an enduring power of attorney can manage the inheritance for that spouse’s benefit, which may mean no change to the will is needed, particularly where the wills were made as mutual wills.

Annotated Transcript

Segment 1, Being signalled to stop, and why evading police is never worth it

⚖️ Topic: Police powers to stop a vehicle and the offence of evading police Relevant law: Police Powers and Responsibilities Act 2000 (Qld)

Andrew: I thought I’d turn the tables on Colin this week. Normally we write out some talking points and discuss them beforehand, but today, like someone who’s driving along and getting pulled up, I’m going to ask Colin some questions, and we’ll see if his answers are sound legally. So, Colin, you’re driving home, a marked police vehicle turns its lights on behind you. Can they pull you over?

Colin: My first thought would be as soon as the lights come on, I’m to do as directed.

Andrew: That is the best direction. They can only pull you over for a limited number of purposes, including enforcing transport law, checking compliance, or conducting a drug or breath test, but you don’t know the reason when they pull you over. It is an offence to evade police, which has mandatory minimum sentences. I would advise: find a safe place, clearly indicate, slow down, and pull over. Don’t get out of the vehicle.

Colin: So that’s pretty much straightforward. We don’t see a lot of that on the news at the moment, everybody seems to drive off as fast as they can.

Andrew: That is the case, but there’s a mandatory minimum for evading police, which Andrew put at around $8,000 or 60 days in jail on air. Exact penalty amounts change and should be checked against the current Police Powers and Responsibilities Act 2000 (Qld) and Criminal Code 1899 (Qld) before relying on a specific figure, but the point stands: probably don’t want to test that one on the way home from work being an amateur lawyer.

📎 See also: Do I Need a Lawyer for a Traffic Offence? | Legal Matters Ep 19, E-bike Laws and Family Law

Segment 2, “Do you know why I pulled you over?” and the right to stay quiet

⚖️ Topic: Answering police questions at a roadside stop Relevant law: Police Powers and Responsibilities Act 2000 (Qld)

Andrew: Next question. You’ve pulled over, you’ve rolled down your window, and the police officer says, “Excuse me, sir, do you know why I pulled you over?” How do you reply?

Colin: Well, I could be cheeky, but usually there’s a guilty conscience there, I might have been speeding or run a red light. Do I answer or not?

Andrew: I would turn the tables and say, “I’m not quite sure, officer, can you tell me?” That way you can also get the grounds for the stop. This is the most common area where people make a mistake when they’re pulled over.

Colin: So if I say I ran a red light and he didn’t get me for that, he’d go, “Oh, all right, you ran a red light!”

Andrew: Absolutely. Confessions on the side mean their burden of proof for anything else goes out the window. If you say, “Officer, yeah, I think I was doing 80, what was the speed limit back there?” and they say it was 60, you’ve now put yourself on record doing 80 in a 60 zone. Don’t lie either, if you lie you’ll get in trouble, but you don’t have to answer that question.

Colin: So “I’m not sure” would be the perfect answer.

Andrew: That would be the perfect answer, yes.

📎 See also: What Are Your Rights If You’re Arrested in Queensland? | Do I Need a Lawyer for a Traffic Offence?

Caller: Annie, AI music feedback

⚖️ Topic: Listener feedback, not a legal question

Annie: I rang up about the AI chat we had, and all the information you put on your website. I read the whole thing, the transcript and everything, and I thought you were so thorough. I also just want to say I like that little being that works in your office called Gino!

Andrew: Thank you, Annie, that’s very kind. We have an office dog, he was in yesterday, he’s a lovely gentle soul.

📎 See also: AI Music, Copyright and APRA AMCOS: Your Legal Questions Answered

Caller: Rod, Body corporate visitor parking and towing

⚖️ Topic: Enforcing visitor parking bays and towing in a body corporate scheme Relevant law: Body Corporate and Community Management Act 1997 (Qld)

Rod: With visitor car parking in a body corporate, we are having a lot of owners taking advantage of it, and we don’t have signs on it. We were told we’re not allowed to sign it, and that legislation was brought in last year so the body corporate has the right to tow away vehicles that overstay. Two questions there, please.

Andrew: Under the Body Corporate and Community Management Act 1997 (Qld), it is possible for specific time limits to apply to properly signed visitor bays, and there can be by-laws that set up what a genuine visitor is and the approval mechanisms for people to park there. If I was running the body corporate, I wouldn’t do it without signage. I can confirm the exact rules and get back to you next week, but otherwise, if any towing was not clearly signed, the body corporate might be liable for any costs or damage involved. I am aware of bodies corporate I’ve dealt with that have visitor parking signs and I’ve seen no complaints against that.

Rod: So we can put up “Visitor Parking Only” signs, and they’re allowed to stay for 4 to 12 hours?

Andrew: You need a by-law to support that they’re visitor car parks. Normally the plan that established the body corporate identifies resident parks versus visitor parks, and you’d need a body corporate by-law about who can park there and when, so the rules are enforceable and residents are properly aware of them.

Rod: And the body corporate can do that without needing government legislation?

Andrew: The body corporate is empowered to do that, yes.

📎 See also: Body Corporate and Strata Plumbing Responsibility in Queensland | Legal Matters Ep 9, Property, Form 2 and Strata

Caller: Pat, Mutual wills and a spouse with advanced dementia

⚖️ Topic: Whether to change a will where a spouse has lost capacity Relevant law: Succession Act 1981 (Qld); Powers of Attorney Act 1998 (Qld)

Pat: My husband and I both have separate wills, he dies, I get everything, I die, he gets everything. My husband is in care at the moment with advanced dementia. There’s no way I can sign my assets over to him, so should I make a new will, or is there some way around it?

Andrew: Does he have a power of attorney who would hold the assets?

Pat: My children have power of attorney for him and for me.

Andrew: And who would be inheriting once you die, would it be your children after your husband?

Pat: Yes, and his children.

Andrew: So ordinarily I’d need a deeper discussion about your personal circumstances, but if the intent was that he’d be taken care of, I’d normally suggest you wouldn’t change your will. The same people who are going to inherit later, once he dies, are going to be in control of the finances in the meantime, so the funds aren’t whittled away and can be used for his benefit. Otherwise he may be left with nothing. I also don’t know how your house is structured if you own one, because it may automatically transfer to his ownership regardless of the will, depending on how your names are on the title. That is something you could still change, as long as it wasn’t the case that these were mutual wills, where the intention was that neither of you would change them after the other passed.

Pat: My children seem to think that if I die, they have power of attorney, so they’d automatically take over my assets and have a say in what goes on, is that correct?

Andrew: If you died and gave everything to your husband and he doesn’t have capacity, he owns the estate until he passes. But if he can’t manage the estate, the people who legally manage it are the attorneys on record, your children. They can enter contracts, sell things and act as if they were the owner of the property, and when he passes, it goes according to his current will.

📎 See also: Testamentary Capacity and Dementia in Queensland | What Happens Without an Enduring Power of Attorney? | Tenants in Common vs Joint Tenants QLD | Legal Matters Ep 2, Enduring Power of Attorney

Segment 3, Licences, questions and staying in the vehicle

⚖️ Topic: Producing your name, address and licence, and declining other questions Relevant law: Police Powers and Responsibilities Act 2000 (Qld)

Andrew: I pulled you over, you pulled over safely, you didn’t give any incriminating information, and now I’m going to ask for your name and licence. Do you have to give that?

Colin: Being brought up in the ’80s, I was taught that if he asked for a licence, name and address, I would hand it over.

Andrew: You’d be right on this one. Not everything they ask for you have to do, and you can ask, “Is that a legal directive, do I have to?” if you’re not sure. But in most cases, name, address and licence are the three minimum things you normally have to supply, and you definitely have to when driving. My advice would be to give them, even if you’re the passenger, and seek advice in advance if unsure. Just don’t make it up, you’re not Bob, you’re not your brother, there’s probably a bigger offence in misrepresenting who you are than in simply being the wrong person there.

So I’ll ask you another question: “Where have you been tonight?”

Colin: Ah, that’s going to be interesting. “I’ve been visiting friends,” or if I’d been to the pub, that might pose different questions altogether.

Andrew: Do you have to answer these, Colin? No, you don’t. You don’t have to answer where you’ve been, where you were going, who you were with, what you’ve had to drink, what medication you’ve taken, how many drinks you’ve had, or why you were driving that way. People get very flustered talking to authority and may give too much information or admit to things that are incorrect just trying to be helpful. You don’t have a legal obligation to answer any of those general questions beyond complying with instructions for an RBT, name and address.

Colin: How do I decline without sounding obstructive?

Andrew: You could say, “Officer, I’d prefer not to answer that question,” or “Do I have to answer that?” or “Can we just keep this on topic, please, officer?” You don’t have to be rude, just being silent or getting angry may cause issues, but being polite is the easiest way.

📎 See also: Do I Need a Lawyer for a Traffic Offence? | What Are Your Rights If You’re Arrested in Queensland?

Caller: George, Carrying your licence and medical certificates

⚖️ Topic: Whether an open Queensland licence must be physically carried Relevant law: Transport Operations (Road Use Management) Act 1995 (Qld)

George: Do you need to carry your licence?

Andrew: No, you don’t need to carry your licence with you in Queensland if you’re on an open driver’s licence. If you have conditions attached, I believe you do have to bring them with you. If you’re asked for a licence and don’t provide it, police can require you to present yourself at a police station within a nominated period to show it. If you’re ducking out to the shops without your licence, that’s not a crime in Queensland.

George: What about the condition when you’re over the age of 75, do you have to carry that medical certificate?

Andrew: You do have to carry that certificate, yes. If there’s a condition saying you must have this with you, or must not drive within certain periods, you need to have that conditional approval with you when you drive.

📎 See also: Digital and Physical Driver Licence Rules in Queensland | What Happens If You’re Caught Driving Unlicensed in Queensland?

Caller: Ron, Digital driver licences across state lines

⚖️ Topic: Whether a digital licence app satisfies a request from police Relevant law: Road Transport Act 2013 (NSW)

Ron: I’m in New South Wales. Concerning the licence, I got pulled over and showed my licence on my phone, and he wouldn’t accept that.

Andrew: Did you actually show the official app?

Ron: Yeah, it’s on my phone, the Service NSW app.

Andrew: It’s illegal to access it while driving, but once you’ve been pulled over, it fully counts as your driver licence. The NSW Government website states digital driver licences can be used across NSW and are accepted by pubs, clubs and NSW Police.

Ron: This was a while back now, I had no problem with it, and I had my physical licence with me anyway.

Andrew: I’d encourage the digital app over the physical device, provided you’re safely stopped when you access it.

📎 See also: Digital and Physical Driver Licence Rules in Queensland

Caller: Brian, Getting out of the car and phone searches

⚖️ Topic: Staying in the vehicle and refusing a phone search Relevant law: Police Powers and Responsibilities Act 2000 (Qld), Chapter 7

Brian: Why should you not get out of your car to speak to police, and can they ask to see your telephone?

Andrew: Police can ask you anything, whether you comply is up to you. Police typically don’t have prima facie access to your phone without a warrant. I wouldn’t recommend you delete anything, but you don’t have to show them what’s on your screen and you don’t have to hand the phone to them. Your phone has absolutely everything about you on it, and if you voluntarily hand it over and they image it, that’s on you. You can ask, “Is this a lawful direction, do I have to comply?” If you voluntarily hand it over, you won’t have any comebacks. Regarding getting out of the car, Queensland Police advice is that you stay in the car unless requested to get out, since getting out roadside in an unknown location is a safety hazard.

📎 See also: Can Police Search Your Phone at a Traffic Stop in Queensland? | Understanding the Statutory Tort for Privacy in Australia

This transcript provides general legal information only, it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances. Contact Bell & Senior Lawyers on (07) 5532 8777 or visit bellsenior.com.au.

Related Episodes

• Legal Matters Ep 33: Citizen’s Arrest, Self-Defence and Card Surcharges
• Legal Matters Ep 19, E-bike Laws and Family Law
• Legal Matters Ep 9, Property, Form 2 and Strata
• Legal Matters Ep 2, Enduring Power of Attorney
• Legal Matters Ep 22, Wills, Probate and Family Provision Claims
• Legal Matters Ep 32: Police Roadside Stops Part 2, Searches, Lawful Directions and Weapons

Key Topics

• A lawyer’s primary duty to the court, and why it overrides the duty to a client
• The Australian Solicitors’ Conduct Rules and the barristers’ cab-rank rule
• Why “not guilty” means the prosecution failed to prove its case, not that innocence was proven
• Why family law disputes almost always have two conflicting versions of events
• Refund and warranty rights when buying faulty second-hand goods from a pawnbroker
• Why probate is required before transferring a solely owned property, even under a simple will
• The uncontested probate process, and why most applications never see a courtroom
• A pending High Court case on whether government can ban a political party
• Protected witness status and the limits of witness privacy in open court

Listener FAQ Highlighted in This Episode

Why do lawyers represent people accused of terrible things?

A lawyer’s oath places their primary duty to the court above their duty to the client. Barristers operating under the cab-rank rule must generally accept an available brief regardless of personal opinion, because the alternative, allowing lawyers to pick clients based on popularity, would undermine everyone’s right to a fair trial.

Can I get a refund on faulty second-hand jewellery?

Goods sold by a business, including second-hand dealers and pawnbrokers, must be of acceptable quality under the Australian Consumer Law. Many dealers also publish their own warranty terms, commonly a 90 day window, which sit alongside the statutory guarantees rather than replacing them.

Why does my simple will still need probate?

Probate exists to protect everyone with an interest in an estate, not just the executor. Advertising the application allows creditors, unpaid tradespeople and unregistered mortgagees to come forward before assets are transferred, and land title offices will not transfer real estate without it.

Key Takeaways

1. A lawyer’s first duty is to the court and the administration of justice, which overrides the duty owed to a client, and prevents a lawyer from knowingly misleading a court or arguing a fact a client has personally admitted is false.
2. The cab-rank rule requires an available barrister to accept a brief within their expertise regardless of the client’s alleged conduct, so that unpopular defendants still receive proper representation.
3. A not guilty verdict reflects a failure by the prosecution to prove guilt beyond reasonable doubt, not a formal finding of innocence.
4. Second-hand goods bought from a business generally carry Australian Consumer Law guarantees plus any additional store warranty policy, but goods bought privately from person to person carry far weaker protection.
5. Probate is required before land title offices will transfer solely owned real estate, even where a will is simple and uncontested, because the process protects creditors and claimants as well as the executor.
6. Around 99 per cent of Queensland probate applications are resolved without any court hearing, through lodging the original will, an affidavit and a public notice, and waiting for a grant to issue by mail.
7. Courts asked to rule on banning a political party must weigh the precedent for every party, not only the one currently before them, because an arbitrary banning power could later be turned against any political movement.
8. A witness who has genuine safety concerns should raise the possibility of protected or special witness status with police or the prosecution before giving evidence, since retrospective protection after identifying details are given in open court is rarely available.

Annotated Transcript

Segment 1, A lawyer’s duty to the court and the cab-rank rule

⚖️ Topic: Legal ethics, the primary duty to the court and the rules governing which clients a lawyer must accept

Relevant law: Legal Profession Act 2007 (Qld) ; Australian Solicitors’ Conduct Rules 2012

Andrew: Andrew explained that when a person is admitted as a lawyer, their first duty is to the court, and only their second duty is to the client. That means a lawyer cannot mislead the court, cannot misrepresent facts, and cannot run a defence that contradicts what a client has personally admitted. If a client confesses guilt, a lawyer cannot then stand up and argue innocence, though mitigating circumstances can still be raised at sentencing.

Andrew: He noted that Australian solicitors and barristers operate under detailed conduct rules requiring courtesy to opposing parties and the court, a stricter standard than is sometimes shown in American television depictions of aggressive lawyering, and one that can attract professional discipline if breached.

Colin: Colin raised the innocent until proven guilty principle, prompting Andrew to draw out the distinction between “not guilty” and “innocent”.

Andrew: A not guilty verdict means the prosecution did not succeed in proving its case, not that innocence has been formally established. The defence’s role is not to justify a client’s conduct, it is to test whether the evidence is sufficient to justify punishment. Andrew linked this to historical abuses, including trials during the American Civil War era where people were tried repeatedly by juries with no connection to their community until a conviction was secured, which is part of why Australian law generally prevents a person being tried twice for the same offence.

Colin: Colin asked how a solicitor rationalises representing someone they personally find repugnant.

Andrew: Andrew’s answer centred on fairness: even an unsympathetic client deserves to be punished only for what can actually be proven, not for whatever the public assumes about them. He noted that family law work regularly shows two sharply conflicting accounts of the same relationship, and that clients rarely see themselves as the villain of their own story, which is part of why a lawyer’s obligation runs to the court’s process rather than to validating either side’s version of events.

📎 See also: Barristers vs Solicitors in Queensland | Court Etiquette and Behaviour | New FAQ: A Lawyer’s Duty to the Court and the Cab-Rank Rule

Segment 2, Caller Liz: refunds on faulty second-hand goods

⚖️ Topic: Consumer guarantees and store warranty policies for second-hand goods

Relevant law: Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law), ss 54 to 56

Liz: Liz explained that she bought a pair of gold earrings from a second-hand dealer, and one fell out on the first day of wear. When she returned to seek a refund, the store refused.

Andrew: Andrew confirmed that goods sold by a business, including second-hand dealers, must be of acceptable quality and fit for purpose under the Australian Consumer Law, and that within a reasonable time a buyer is generally entitled to a repair, replacement or refund. He noted that the specific store’s own policy stated a 90 day warranty covering goods of satisfactory quality, and that Liz’s earrings did not appear to fall within any excluded category.

Andrew: He distinguished this from buying second-hand from a private, person-to-person seller, where statutory guarantees are far weaker, and from second-hand vehicles, where any dealer warranty period is limited and tied to whether the car was sold with a roadworthy certificate.

📎 See also: Can You Get a Refund on Faulty Second-Hand Goods in Queensland? | Auction Goods Sold As-Is, Where-Is

Segment 3, Caller Doug: why a simple property estate still needs probate

⚖️ Topic: Why probate is required to transfer solely owned real estate

Relevant law: Succession Act 1981 (Qld) ; Probate and Administration Act 1898 (NSW)

Doug: Doug, a New South Wales caller with a will and a solely owned property, asked why probate is necessary when there is no family complication and no dispute expected.

Andrew: Andrew explained that a will with substantial assets, particularly real estate, generally needs to go through probate in the state where the person dies. The New South Wales Supreme Court, or the Supreme Court of Queensland for a Queensland estate, formally recognises the document as the deceased’s valid last will, and land title offices will not transfer a property without that recognition.

Andrew: He explained the underlying purpose: probate advertising publicly names the deceased, the date of death and the proposed executor, giving anyone with a claim, whether a family provision claimant or an unpaid creditor, the opportunity to come forward before assets are distributed. Without this step, an estate could become a first-come, first-served scramble, or vulnerable to a forged or superseded document being acted on before anyone could object.

Doug: Doug asked about transfer-on-death or payable-on-death style account arrangements as an alternative to probate.

Andrew: Andrew confirmed there are various lawful ways to structure how assets pass on death, but cautioned that each carries its own risks and tax consequences that need individual advice before being adopted, rather than being used simply to avoid an administrative step that, for most estates, is not especially complicated. The same principles apply whether the estate is in New South Wales or Queensland.

📎 See also: When Is Probate Required in Queensland? | Trust vs Probate in Queensland | Legal Matters Ep 10: Off-the-Plan Property and Probate

Segment 4, High Court case study: can government ban a political party?

⚖️ Topic: Judicial review of executive attempts to deregister or ban a political party

Relevant law: Commonwealth of Australia Constitution Act (implied freedom of political communication); Commonwealth Electoral Act 1918 (Cth)

Andrew: Andrew introduced a pending High Court of Australia matter concerning an attempt by the Attorney-General to declare a fringe political party unfit to register or contest elections. He drew a parallel with earlier attempts to ban the Communist Party in the 1950s, noting that the High Court has previously been asked to decide whether the government of the day can exclude a party purely because of its views.

Andrew: Andrew’s view was that, whatever any individual judge’s personal feelings about a party’s platform, the court’s ethical obligation is to interpret the law consistently for every party that could be affected by the precedent, not only the one currently before it. Allowing an arbitrary power to ban unpopular parties creates a template that could later be used against any party a future government dislikes.

Andrew: He also observed that Australia’s lack of an entrenched Bill of Rights makes the implied freedom of political communication doctrine, developed by the High Court itself, particularly important in cases like this, and suggested recent global developments have strengthened the case for a clearer constitutional protection of free expression in Australia.

📎 See also: What Is Administrative Law in Queensland? | Standing to Challenge a Government Decision in Queensland | New FAQ: Can the Government Ban a Political Party in Australia?

Segment 5, Caller Daniel: does probate mean going to court?

⚖️ Topic: The uncontested probate application process

Relevant law: Uniform Civil Procedure Rules 1999 (Qld) ch 15 (probate rules)

Daniel: Following on from Doug’s question, Daniel asked whether a will has to go to arbitration, and separately asked what his own daughter would need to do to receive his estate under his will.

Andrew: Andrew clarified that probate does not require arbitration or, in the vast majority of cases, any court hearing at all. An executor, or a solicitor acting for them, prepares an affidavit and the original will, checks with the Public Trustee for any competing will, and lodges a notice of intention to apply, which is advertised, commonly through the Queensland Law Reporter or equivalent government gazette. If no one objects by the relevant date, a grant of probate typically issues by mail some weeks later.

Andrew: For Daniel’s specific scenario, once probate is granted his daughter, as executor, would present the grant along with the death certificate to the relevant land title office or bank to have assets formally transferred into her name. Banks and share registries often have their own thresholds below which probate is not strictly required, but real estate almost always requires it.

📎 See also: Probate Process in Queensland | Probate Timeframe in Queensland | Letters of Administration in Queensland

Segment 6, Caller Barry: witness safety and protected witness status

⚖️ Topic: Open justice, witness identifying details and protected or special witness arrangements

Relevant law: Evidence Act 1977 (Qld) (special witness protections); Witness Protection Act 2000 (Qld)

Barry: Barry gave evidence in a murder trial roughly a year earlier and was asked in open court for his name, address, length of residence and other identifying details, all of which the accused, who was later convicted, heard directly.

Andrew: Andrew explained that once identifying details are given in open court under standard procedure, there is generally no way to retrospectively suppress that information. Had Barry raised his safety concerns with police or the prosecution before the trial, it may have been possible to apply for protected or special witness status, which can allow evidence to be given remotely or with identifying details limited or withheld.

Andrew: He noted that most witnesses summonsed to give evidence, particularly in a serious matter such as a murder trial, do not have a genuine choice about attending, since a subpoena carries a penalty for non-compliance, but that raises the importance of considering protective arrangements in advance rather than after the fact.

Andrew: Andrew drew a parallel with domestic violence matters, observing that an order or condition intended to protect someone can only be enforced reactively by police once a breach occurs, and that the legal system cannot fully guarantee safety after a risk has already materialised.

📎 See also: What Is a Protected Witness in a Queensland Criminal Trial? | Your Right to Legal Representation

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances. Contact Bell & Senior Lawyers on (07) 5532 8777 or visit bellsenior.com.au .

Related Episodes

• Legal Matters Ep 22: Wills, Probate and Family Provision Claims
• Legal Matters Ep 28: Estates, Statutory Declarations and the Census
• Legal Matters Ep 10: Off-the-Plan Property and Probate
• Legal Matters Ep 29: AI Music, Copyright and APRA AMCOS

This podcast accompanies Bell & Senior Lawyers’ detailed Australian Technology Law guide for songwriters, producers, performers and community broadcasters using AI tools. Begin with the one-page practical guide, then use the detailed guide when you need a fuller explanation of authorship, royalties, industry rules and release risks.

Key Topics

• The distinction between conventional digital production, machine learning and generative AI.
• Why a song can involve separate rights in lyrics, musical composition, recordings and performances.
• Human authorship and creative contribution in Australian copyright law.
• What IceTV can and cannot tell creators about computer-generated outputs.
• The role of APRA AMCOS, industry eligibility rules and the uncertainty around a “substantial portion” generated by AI.
• The continuing relevance of copying disputes, including Kookaburra Sits in the Old Gum Tree and Down Under.
• Why cloning a recognisable voice creates a higher-risk issue than ordinary AI-assisted production.
• Evidence creators should keep from the first lyric draft through to release.

Listener FAQ Highlighted in This Episode

If I wrote the lyrics but AI created the music, do I own the song?

The answer may differ for the lyrics, composition, arrangement, sound recording and performance. The strongest position generally comes from being able to identify and prove the human creative decisions behind each element. If another person used the tool, or if collaborators contributed different parts, record those contributions and agree on ownership before release.

Can community radio play AI-assisted music?

The legal and practical answer is not a simple yes or no. A station must consider its licences, policies and the rights in the material it receives. A creator should not represent a track as wholly human-made if that would be misleading, and should give accurate information about writers, performers, samples, rights and AI assistance when asked.

What records should I keep?

Keep the first lyric drafts, musical sketches, project sessions, prompt and revision history, exports, communications with collaborators, licence terms, performer permissions and dated version files. A sealed, dated copy may add a small piece of timing evidence, but it does not create copyright and should not be the only record.

Key Takeaways

1. AI is a spectrum of tools. A reverb effect, virtual instrument, remix workflow and generative music service may raise different factual and legal questions.
2. A song is not a single right. The lyrics, music, recording, performance and visual assets can have separate creators, owners and licences.
3. Human creative input remains central to the copyright analysis. The quality and evidence of that input matter more than a simple label of “AI” or “not AI”.
4. Industry eligibility, chart rules, collecting-society requirements and copyright protection are related but distinct questions.
5. Do not use a recognisable singer’s or public figure’s voice without checking permissions and applicable laws.
6. Keep contemporaneous records from the creation process, and agree on co-writing, credits and ownership before a song earns money or causes a dispute.

Annotated Transcript

AI music is a live question for creators and community radio

⚖️ Topic: AI-assisted music, authorship and industry practice

Relevant law: Copyright Act 1968 (Cth)

Andrew: Andrew introduced the topic as a practical question for musicians, songwriters and community radio: if an AI tool helps write or produce a song, who owns it, can it be played, and how should it be treated by APRA AMCOS and the industry?

Colin: Colin said that broadcasters are increasingly receiving tracks made with AI assistance. The first practical question is often the extent of AI use, but the industry has not reached a single consensus on what audiences will accept.

Andrew: The discussion distinguished older statistical or machine-learning tools from current generative tools. Andrew and Colin compared the new technology with familiar production techniques, including reverb, virtual instruments, synthesisers, mixing and remixes. The relevant issue is not simply whether a computer was involved, but the creative choices made by people using the tools.

📎 See also: AI-Written Music, Copyright and APRA AMCOS: A Practical Guide for Australian Songwriters | One Page Practical Guide PDF

A song is made of several separate rights

⚖️ Topic: Lyrics, musical works, sound recordings and performances

Relevant law: Copyright Act 1968 (Cth)

Andrew: Andrew explained that copyright questions about a song need to be separated. The lyrics, musical score or composition, performance and sound recording may be distinct works. Different people may own or control different rights, particularly where one person writes words, another arranges music and another records or performs the result.

Human creative contribution and computer-generated output

⚖️ Topic: Authorship, originality and evidence of creative choices

Relevant law: Copyright Act 1968 (Cth) ; IceTV Pty Ltd v Nine Network Australia Pty Ltd

Andrew: Andrew referred to IceTV as an example of the distinction between information compiled by a computer and human creative expression. The episode did not treat that case as a final answer for AI music. Rather, it illustrated why a purely automated output may raise different questions from work shaped through selection, editing, remixing, arrangement and other human decisions.

Andrew and Colin: The camera analogy was used to explain the point. Photography once prompted debate about whether the camera simply recorded reality. Today, the photographer’s framing, timing, selection and editing are widely recognised as potentially creative. AI-assisted music may similarly require a close factual assessment of the human contribution to the finished work.

Sampling, substantial parts and the Kookaburra dispute

⚖️ Topic: Copyright infringement and taking a substantial part

Relevant law: Copyright Act 1968 (Cth) ; Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd

Colin: Colin raised the familiar dispute over Kookaburra Sits in the Old Gum Tree and Men at Work’s Down Under.

Andrew: Andrew explained that copyright disputes often turn on whether a substantial part of a protected work has been reproduced. The discussion is relevant to AI because a creator, broadcaster or distributor may face a claim if a generated output reproduces protected material. The question is not confined to whether a whole song is copied.

Annie’s favourite AI-assisted dance track

⚖️ Topic: Disclosure, audience expectations and AI-assisted release

Relevant law: Copyright Act 1968 (Cth)

Annie: Annie described Just Friends by Magic Brown featuring Manyus and Dario Guida as a favourite track from her dance class. The discussion turned to the fact that the music was produced using AI tools and whether that prevented a song from being released or played.

Andrew: Andrew’s practical advice was that a creator should be up-front about the extent of AI use. If a person wrote the tune or lyrics but used AI for an arrangement, that should be understood in the same spirit as other production credits. He also noted that questions about training data, performer rights and commercial use are developing internationally.

🎵 Listen to Annie’s favourite track: Play “Just Friends” by Magic Brown (feat. Manyus & Dario Guida) on YouTube (if video embedding is restricted by your browser).

📎 See also: AI-Written Music, Copyright and APRA AMCOS: A Practical Guide for Australian Songwriters | One Page Practical Guide PDF

APRA AMCOS, ARIA and the meaning of “substantial portion”

⚖️ Topic: Collecting societies, chart eligibility and AI disclosure

Relevant law: Copyright and industry rules are separate questions

Andrew: Andrew said that APRA manages performance rights and AMCOS deals with other music rights, while noting that recent industry developments had raised questions about the eligibility of music where a substantial portion was generated by AI. The programme observed that the practical meaning of a substantial AI contribution is an area that needs clearer guidance.

Editorial note: Copyright protection, APRA AMCOS registration and royalty administration, chart or award eligibility, and platform acceptance are related but not identical. A creator should not treat an industry rule as a definitive answer to every copyright question.

Voice cloning and preserving evidence

⚖️ Topic: Voice-model permissions and contemporaneous creation records

Relevant law: Copyright Act 1968 (Cth) and potentially applicable contractual, consumer and overseas laws

Andrew: Andrew identified cloned voices as an area of particular concern. A recognisable voice, whether it belongs to a well-known performer or another person, should not be used on the assumption that it is legally available. The relevant risks can extend beyond Australian copyright law, especially if music is distributed internationally.

Andrew and Colin: The discussion then turned to evidence. Creators should save drafts, notes, session files and material showing what was created and when. Colin suggested the long-standing practice of signing, dating and posting a sealed copy to oneself. Andrew agreed that records can assist in establishing a timeline, while emphasising the value of preserving the underlying creative process.

📎 See also: AI-Written Music, Copyright and APRA AMCOS: A Practical Guide for Australian Songwriters | Download the One Page Practical Guide

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• AI Law
• Technology Law Part 2: Consumer Law and AI
• Technology Law Part 1: Business and Cyber Security
• Drones, Rental Cars and Parenting Relocation: Your Legal Questions Answered

AI music creator resources

Start with the One Page Practical Guide

Before you release, submit, pitch, broadcast or monetise an AI-assisted track, download the AI Music Copyright and APRA AMCOS One Page Practical Guide .

Read or download the detailed guide

• Read online: AI-Written Music, Copyright and APRA AMCOS: A Practical Guide for Australian Songwriters
• Download: Full AI Music Copyright and APRA AMCOS Guide PDF

These resources provide general legal information only. They are not personal legal advice. Seek advice for your particular song, release, licence, dispute or commercial arrangement.

Full Broadcast Transcript

The following is the full 4CRB broadcast transcript for 1 September 2026. It has been lightly edited for punctuation and readability. It is provided as a record of the programme and remains general legal information only, not personal legal advice.

The programme began with a brief return to drone rules from the previous week, then moved through a broad set of practical caller questions. The common thread was the importance of identifying the correct legal document, decision-maker and process before acting.

Key Topics

• Commonwealth statutory declarations through myGov, and the distinction between Commonwealth declarations and Queensland documents with different witnessing requirements.
• Mirror wills, advanced dementia, financial attorneys and testamentary capacity.
• Census obligations, privacy concerns and the danger of relying on pseudo-legal claims.
• Smart meters, electricity retailers, meter providers and the consequences of disconnecting from the grid.
• Property held for a self-managed super fund where the registered title may not record the intended trustee capacity.
• Practical assistance for an elderly person administering an intestate estate, including where relatives live overseas.

Listener FAQ Highlighted in This Episode

Can a mirror will be changed if one spouse has advanced dementia?

Potentially, but the answer depends on the terms of the documents and whether the person still has testamentary capacity. A person who lacks capacity cannot simply sign a new will because another person, including an attorney, considers the change sensible. In appropriate cases, the Supreme Court may be asked to authorise a statutory will, but that is a specialised process and should not be attempted without advice.

Can I use myGov for a statutory declaration?

The discussion concerned Commonwealth statutory declarations. The electronic myGov process may provide an approved way to make a Commonwealth declaration without attending before a justice of the peace or lawyer. It is important to confirm that the recipient accepts that form and that it is a Commonwealth declaration, because Queensland declarations, affidavits and other documents may have different witnessing requirements.

What should an elderly estate administrator do if the work becomes too difficult?

An executor or administrator does not have to complete every administrative task personally. A solicitor can assist with collecting assets, obtaining a grant where required, communicating with beneficiaries and arranging distribution, while the executor or administrator remains involved in key decisions. The estate circumstances should be considered before a person renounces a role or seeks to have somebody else appointed.

Key Takeaways

1. Digital identity processes can simplify some Commonwealth documents, but they do not remove the need to check the correct form, legislation and recipient requirements.
2. Capacity concerns should be addressed early. A will-maker who still has capacity may be able to review arrangements, while a person who has lost capacity cannot simply have a will changed by an attorney.
3. Census concerns should be examined through Australian Bureau of Statistics information and the governing legislation, not internet theories about bills of exchange, householder labels or supposed exemptions.
4. A smart-meter issue is often a practical energy-market question involving a retailer and meter provider, not simply a dispute with the network business.
5. Where SMSF documents and registered title do not align, obtain integrated legal and accounting advice before asking a registry to record a transfer or correction.
6. Executors and administrators can obtain professional help. Renouncing a role or seeking a replacement can have procedural consequences and should be considered carefully.

Annotated Transcript

Drone rules follow the aircraft, not the retail receipt

⚖️ Topic: Recreational and professional drone operation

Relevant law: Civil Aviation Safety Regulations 1998 (Cth)

Colin: Following last week’s discussion, listeners had raised the view that a drone bought in a shop could simply be flown anywhere.

Andrew: Buying a drone over the counter does not mean it can be flown wherever the owner wishes. Rules can depend on matters such as the aircraft’s weight, where it is flown and whether it is used professionally. Owners should read the material supplied with the drone and consult Civil Aviation Safety Authority guidance rather than assume that retail availability creates unrestricted permission.

📎 See also: Drones, Rental Cars and Parenting Relocation: Your Legal Questions Answered

Digital Commonwealth statutory declarations through myGov

⚖️ Topic: Electronic Commonwealth statutory declarations

Relevant law: Statutory Declarations Act 1959 (Cth)

Colin: Listeners may sometimes be asked for a Commonwealth statutory declaration, for example about an absence, an event or a circumstance. Could this now be completed online?

Andrew: Andrew explained that the myGov service can provide a digital process for a Commonwealth statutory declaration. The secure login is used as part of the identity-verification process, removing the need in that setting to take the declaration to a justice of the peace or lawyer for witnessing.

Mirror wills, dementia and testamentary capacity

⚖️ Topic: Changing wills where a spouse has advanced dementia

Relevant law: Succession Act 1981 (Qld)

Pat: Pat and her husband had made wills four years earlier. Her husband now had advanced dementia, and she was concerned that leaving her estate to him first may no longer suit their circumstances. Their children held powers of attorney.

Andrew: Andrew noted that the first task is to obtain and review the actual wills. Couples commonly leave assets to each other and then to children or other beneficiaries if the other spouse does not survive. A mirror-will arrangement may add complexity because it can involve an agreement intended to limit later changes.

Andrew: If Pat’s husband no longer has testamentary capacity, an attorney cannot simply make or alter his will for him. Depending on the facts, a Supreme Court application for a statutory will may be necessary. Andrew also noted that the practical outcome should be considered carefully, particularly where the children are the ultimate beneficiaries and already hold financial authority.

Census obligations, privacy and pseudo-legal claims

⚖️ Topic: Census completion and misinformation about purported exemptions

Relevant law: Census and Statistics Act 1905 (Cth)

George: George had heard that people could refuse to complete the Census, return any fine with a bill of exchange, or argue that a form addressed to the householder did not apply to them.

Andrew: Andrew explained that the Census is compulsory under Commonwealth law for people in Australia on Census night, subject to the statutory framework. He described the bill-of-exchange suggestion and similar arguments as pseudo-law, and advised listeners to rely instead on Australian Bureau of Statistics information and the legislation.

Colin and Andrew: The discussion acknowledged genuine privacy concerns. Andrew observed that Census information is used in planning services and infrastructure, while also encouraging people to be cautious about giving unnecessary personal information to unrelated online forms, competitions and retailers.

📎 See also: Administrative Law | Administrative Law Part 2

Smart meters and going off-grid

⚖️ Topic: Metering arrangements in the contestable electricity market

Relevant law: Queensland electricity and national energy regulatory framework

Jeff: Jeff had received notice that an electricity supplier intended to replace the meter at his home with a smart meter. He asked whether he could refuse it, and whether going completely off-grid would change the position.

Andrew: Andrew described the practical distinction between the network business, the electricity retailer and the separate parties who may provide metering and metering-data services. He said that a customer can ask the relevant meter provider about their circumstances, but a legal right to prevent installation may be limited and refusal may affect the availability of supply.

Andrew: For a home that is completely disconnected from the electricity network, Andrew said the practical position differs from a home that remains connected. He emphasised that any off-grid arrangement must comply with applicable electrical standards and should be planned carefully.

SMSF property title discrepancies and the difference between rectification and transfer

⚖️ Topic: Property title held in personal names rather than apparent trustee capacity

Relevant law: Land Title Act 1994 (Qld) and superannuation law

Loralai: Loralai described a factory purchased in connection with a self-managed super fund. After the fund’s assets were divided between ageing business partners, a title search suggested that the property had been registered in four individuals’ private names rather than identifying them as trustees.

Andrew: Andrew advised that the original title and transaction documents require careful review. The issue may be a registration error capable of rectification, or it may be treated as a transfer. The difference matters because a transaction, rather than a correction, may carry capital-gains-tax and other consequences.

Andrew: He recommended preparing the evidence carefully and obtaining specialist legal and accounting advice before approaching the Titles Registry. Documentation might include the original purchase material, fund records and statements from affected parties, but the correct approach depends on the facts.

Estate administration, overseas assistance and professional support

⚖️ Topic: Support for an elderly person administering an intestate estate

Relevant law: Succession Act 1981 (Qld)

William: William, who described himself as elderly, was involved in an estate where the deceased had not left a will and a Coronial decision was awaited. He asked whether the role could be transferred to an overseas family member.

Andrew: Andrew noted that an intestate estate does not have an executor appointed by a will. The person entitled to administer the estate may need a grant of letters of administration, and a replacement appointment depends on the applicable procedure and the persons with the necessary interest. An overseas resident may face practical difficulties with Australian court processes and estate administration.

Andrew: He recommended that an elderly administrator consider appointing a solicitor to undertake the administrative work while the administrator supervises decisions. Legal expenses properly incurred in administering an estate can generally be paid from estate assets, subject to the estate and the work undertaken.

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• Drones, Rental Cars and Parenting Relocation: Your Legal Questions Answered
• Administrative Law
• Administrative Law Part 2
• Wills, Probate and Family Provision Claims
• Off-the-Plan Property and Probate

Full Broadcast Transcript

The following is the full 4CRB broadcast transcript for 25 August 2026. It has been lightly edited for punctuation and readability. It is provided as a record of the programme and remains general legal information only, not personal legal advice.

Can you launch a drone from the beach, chase whale footage or fly using FPV goggles? What should you do when a rental-car company says you damaged its vehicle after you have handed back the keys? And can a separated parent accept a job interstate, or in Townsville, and move with the children?

In this practical, caller-driven episode of Legal Matters, Andrew Bell joins Colin Balewski on 4CRB 89.3FM to tackle the legal questions that can catch people out in everyday life. The discussion moves from CASA drone rules on the Gold Coast to parenting relocation and changed arrangements after separation, before listeners put real questions about enduring powers of attorney, rental-car excesses, bank procedures and Queensland wills to air.

Whether you are flying, hiring, separating or planning for the future, the recurring theme is simple: check the rules, keep evidence and obtain advice before a small decision becomes an expensive dispute.

Listen to the episode

Press play for a fast-moving discussion covering drone rules, rental-car disputes, parenting relocation and listener questions from across the Gold Coast.

Prefer to read? See the episode transcript below.

What you will hear

• Drones on the Gold Coast: The rules that apply before you launch, including CASA restrictions, controlled airspace, visual line of sight and filming near beaches, aircraft or events.
• Rental-car damage claims: Why a quick phone video at collection and return may be the best protection against a disputed scratch, damage allegation or excess charge.
• Moving with children after separation: What can happen when a parent is offered work in another city and the move affects the child’s time with the other parent.
• Changing parenting arrangements: The practical difference between an agreed parenting plan and binding consent orders when life, work or a teenager’s needs change.
• Powers of attorney and wills: Can an adult child living interstate act as attorney or executor? When might a grandchild have a claim against an estate?

Drone rules: check before you fly

A small camera drone may be easy to buy, but it operates within a regulated aviation environment. CASA’s standard drone rules apply to recreational flyers, including limits on height, proximity to people and flight in controlled or restricted areas. In general, recreational operators must fly safely, keep the drone within visual line of sight, stay below 120 metres above ground level, remain at least 30 metres from people not involved in the flight, and avoid flying over populous areas or near emergency operations.¹

Using goggles or a screen does not remove the visual-line-of-sight requirement. CASA explains that an observer may assist where relevant, but the operator must comply with the applicable operating conditions.¹ Before flying on the Gold Coast, especially near airports, helicopter routes, major events, beaches or emergency activity, check CASA’s current airspace information and the relevant drone-safety app or map.

Read more: Can I fly a drone on the Gold Coast?

Parenting relocation after separation

A parent’s proposed move can be significant where it would materially affect a child’s time with, or relationship with, the other parent. The question is not whether either parent has an automatic right to relocate with the child. For parenting orders, the child’s best interests are the paramount consideration under the Family Law Act 1975 (Cth).²

A move may offer genuine advantages: employment, safer housing, family support or improved financial stability. It may also reduce regular time with the other parent. The outcome depends on the evidence and the child’s circumstances, including practical travel arrangements, the capacity to preserve meaningful relationships, safety, the child’s views where appropriate, and each parent’s ability to meet the child’s needs.²

Early discussion matters. If relocation is a possibility, raise it before committing to work, housing or schooling arrangements. Where agreement is possible, consider documenting a workable arrangement, such as altered holiday time, travel responsibility and communication arrangements. Where agreement is not possible, obtain family-law advice promptly.

Read more: Can a parent relocate with a child after separation?

Parenting plans and consent orders

A parenting plan is a written agreement, made free from threats, duress or coercion, and signed and dated by the parents. It can be varied or revoked by a later written agreement.³ It is not itself enforceable as a court order, although it can be relevant in later proceedings.

Consent orders are orders made by the court when the parties agree on arrangements. They are legally binding. If circumstances change and both parties agree, they may apply to the court for new consent orders. If change is contested, the court process is more involved and parents should seek advice before acting unilaterally.⁴

Read more: How can parenting arrangements be changed?

Listener questions

Can my daughter in Melbourne be my Queensland attorney and executor?

An adult child who lives interstate can generally be appointed as an attorney under a Queensland enduring power of attorney and as executor under a Queensland will. An enduring power of attorney is not generally required to be registered merely to take effect, although registration is required if the attorney will deal with Queensland land on the principal’s behalf.⁵

The document must be validly completed and witnessed under Queensland requirements. Practical issues, such as verifying identity, obtaining certified copies, bank procedures and future availability, should be addressed when the estate plan is prepared.

Read more: Can an interstate child be my Queensland attorney or executor?

What should I do when returning a rental car?

Take clear photographs or a continuous video of the vehicle before leaving the pickup location and immediately before return. Capture all sides, wheels, windscreens, interior where relevant, dashboard fuel level, time and location where practical. Keep the rental agreement, condition report, return receipt and all correspondence.

The legal and financial effect of an excess, damage charge or GST amount depends on the agreement, the facts and the nature of the payment. Check the written terms and ask the hire company for itemised reasons and supporting documents if a charge is disputed. The ACCC advises consumers to understand the hire agreement and potential charges before signing.⁶

Read more: What evidence should I keep when hiring a rental car?

Can a bank impose procedures for an enduring power of attorney?

A financial institution may need to verify the instrument, the attorney’s identity and its authority to act before permitting access to an account. That process does not change the legal effect of a valid appointment, but it can affect how quickly the attorney can act in practice. Ask the bank for its requirements in writing and obtain advice if a valid authority appears to be improperly refused.

Can a grandchild challenge a will in Queensland?

Whether a person may bring a family-provision application depends on the statutory eligibility criteria and the facts. Children are within the class of eligible applicants. A grandchild may have a claim in some circumstances, including where they were wholly or partly dependent on the deceased, but there is no automatic entitlement simply because they are a grandchild.⁷ These claims are fact-sensitive and strict time limits apply.

Read more: Can a grandchild challenge a will in Queensland?

Related resources

• CASA drone safety rules
• CASA drone rules
• Family Court: parenting arrangements when you agree
• Family Court: changing parenting arrangements
• Queensland enduring power of attorney information
• Bell & Senior Lawyers: parenting and children’s matters
• Contact Bell & Senior Lawyers

Transcript

The following transcript has been edited lightly for readability. It is not a substitute for legal advice.

Introduction

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell & Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This programme provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

Colin Balewski: Welcome to the studio, welcome to the microphone, Andrew Bell from Bell & Senior Lawyers.

Andrew Bell: Great to be back, Colin.

Colin: We had a huge response from our AI discussion last week. Probably why we did not get any callers; they were too busy listening.

Andrew: Absolutely. It is a very interesting thing and there is so much more we could have discussed.

Colin: It is a huge topic. It is saving me perhaps an hour and a half to two hours a day in routine tasks, such as prioritising emails and adjusting email responses. But when you hear about systems hacking websites to get a booking at a local gym, it can be concerning.

Andrew: Yes, it can be rather dangerous.

Drone safety and CASA rules

Colin: We thought we might start with another topical issue that you raised, and it is close to my heart: drones, drone safety and the rules and regulations. We have a bigger topic, but thought we would touch on this one first.

Andrew: We were chatting about the air show on the weekend. It made everything rather loud, and I understand everyone had a great time. The question is where and how to fly your drone. You can buy a drone, take it into the backyard and launch it for fun. But what most people do not realise is that it is heavily regulated. You enter the Civil Aviation Safety Authority, CASA, domain. The people who regulate Qantas and the major aviation operators also regulate drones.

Colin: It can be thought of as a toy, but once you attach a camera it can fly high and get in front of all sorts of things. There is a safety issue and a privacy issue, and footage can be posted online quickly. It is understandable that there is regulation.

Andrew: Absolutely. With helicopters operating around the coast, the last thing anyone wants is for someone to be hurt. CASA has partnered with a number of companies about where you can fly. If you look up drone-safety apps on the CASA website, you can access a map. Much of the Gold Coast is heavily regulated in terms of where a drone can be flown.

Drones come into different categories depending on their weight and purpose. You cannot simply fly over people or in controlled airspace. Depending on the operation, a larger drone may need to be registered and the operator may need authorisation, accreditation or training. This may sound like a lot, but people can receive serious attention from CASA in relation to alleged flights in controlled airspace or interference with emergency aircraft. Around Coolangatta and Sea World are picturesque places to film, but check the relevant app or map before flying from a car park and stay on the right side of the law.

Colin: And it can be as simple as posting footage online and CASA tracking you down?

Andrew: CASA can investigate suspected breaches, Colin.

Colin: That is useful information. Friends of my son say they simply launch a drone and go looking for whales. I have asked whether they realise they have to fly in certain places and only to certain heights. They say they simply buy it and fly it.

Andrew: If you have goggles that make you feel like you are flying a real plane, CASA’s visual-line-of-sight rules still matter. You are not supposed to fly beyond sight; an observer may be required depending on the operation. Overseas, you see impressive videos of drones flying long distances and returning with panoramas, but Australia has specific rules. It is worth informing yourself.

Colin: Great information. This is a talkback programme. We are going to talk family law, as promised after last week, but thought we would touch on that fun and frivolous issue first. The number to call is 07 5520 8888. You can ask Andrew Bell from Bell & Senior Lawyers a legal question on any topic. We began this topic a couple of weeks ago, then moved to AI because it was topical. We are returning to parenting in practice: relocation and difficult arrangements.

Parenting arrangements and relocation

Andrew: We were talking about what happens when a family relationship with children breaks down. The number-one concept is that the child’s interests come first. There is not a presumption of 50/50 time. The older the child, the more their position may be taken into account. Equal time with each parent is not an automatic default.

The most important consideration in looking at the child’s best interests is safety: emotional safety, educational safety and physical safety. Parental responsibility comes after that. Parents can share responsibility for major decisions without the child spending equal time with them. The question is who makes decisions about the child, not necessarily where they live each night.

Children are increasingly being asked about their preferences. They are not simply told they must attend a parent’s home on particular days. In appropriate cases, an independent children’s lawyer may be appointed. That lawyer does not represent either parent; they represent the child’s interests. Parents can work arrangements out without going into an adversarial court environment, and that is usually the best outcome if they can do so. If they cannot, issues can include relocating for work, changes in circumstances and disagreements about decisions.

Colin: The law changes frequently, and what used to be understood can become a misconception. Let us look at relocation for work.

Andrew: Following a relationship breakdown, a person may not want to remain in the same city, or may find opportunities elsewhere. Imagine a mother caring for two children while the father sees them every weekend and on one weeknight. She is now separated, needs employment and is offered a good job in Townsville with better pay and perhaps closer family support. What happens then?

Without agreement or an applicable court order, the father may dispute the proposed move. If there are existing arrangements or proceedings and he objects, it becomes a relocation dispute. The court weighs the benefit to the parent seeking to relocate against existing relationships and, again, the child’s best interests. It considers the practical effect on the father’s relationship with the children if weekly time disappears.

Caller: Richard, enduring power of attorney and executor

Colin: We will go to our first caller, Richard. Good morning, Richard. Ask your question of Andrew.

Andrew: Morning, Richard.

Richard [listener phoning in]: Good morning, Andrew. It is about an enduring power of attorney and executor of my will. My daughter lives in Melbourne. Do I arrange that in Queensland or Melbourne, and does an enduring power of attorney need to be registered?

Andrew: Usually, you prepare it in the state where you reside rather than where the attorney lives. I would generally suggest that a Queensland resident use the Queensland enduring power of attorney process. You can appoint your daughter as attorney and arrange for her to complete her acceptance from another location, provided the document is properly executed under the relevant requirements. The formal signing and witnessing requirements must be observed. You also mentioned an executor.

Richard: Yes. Can she be named as executor? Would I make the will here on the Gold Coast?

Andrew: Yes. A Queensland will can name her as executor. You do not generally need an executor’s consent when making the will, although it is sensible to discuss the appointment and name an alternative executor if the first person cannot or does not wish to act. Any suitable adult can be named. I would arrange the will to be properly prepared and witnessed in Queensland, where you reside.

Richard: Great, thank you. I will make an appointment with your office on Friday, I think, because she comes up.

Colin: Good on you, Richard. Contact reception after the show if you would like details.

Richard: Thank you very much.

Andrew: Thank you.

Parenting relocation in practice

Colin: We are back with Legal Matters. We have eight or nine minutes left in the programme. We were discussing family-law arrangements and children’s arrangements, particularly relocation for work. What is a practical example?

Andrew: We were discussing a mother who wants to move with her children from the Gold Coast to Townsville for a better job and to be closer to family. The father, who has time with the children, may be able to challenge that move and potentially prevent it. How is it resolved? It is difficult. There is no automatic answer. A range of factors, including the children’s wishes, are considered and supported by evidence.

Sometimes a move is approved but time is restructured. For example, the father may have longer school-holiday time, with travel paid for by the relocating parent. If the reasons for moving are not compelling enough to justify losing a close relationship with the father, the court may refuse the request. A parent planning to relocate while subject to a parenting plan or during separation should raise the issue and plan early. It can become time-consuming if the other party attempts to block the move.

Caller: Lynn, grandchildren and wills

Colin: We will go to Lynn. Good morning, Lynn. Ask your question of Andrew.

Andrew: Morning, Lynn.

Lynn [listener phoning in]: Hi, Andrew. This is about wills. I am divorced and my ex-husband remarried about 12 years ago. I have been told he is not including our two children in his will, and they are okay with that. But I have an autistic granddaughter and she is not included either. I will put her in my will, obviously. She is cared for by the government, but I feel she should be included in my ex-husband’s will and he is not giving her any thought.

Andrew: Is your granddaughter financially dependent on your ex-husband in any way?

Lynn: No.

Andrew: Whether someone can bring a claim depends on the applicable legal test and the facts. Biological or adopted children may be within the class of people eligible to bring a family-provision claim. Grandchildren are not automatically included, but may be eligible in some circumstances, including dependency. A claim involving a child who lacks capacity can also raise issues about representation. It is a complicated area.

Morally, he may wish to consider his disabled grandchild. But if she is not dependent on him, a claim could be difficult. If he leaves out his biological children, they may be eligible to seek further provision from the estate under Queensland succession law. Every circumstance is different and specific advice should be obtained promptly.

Lynn: It gets complicated, does it not?

Andrew: It does, absolutely.

Lynn: Thank you very much.

Andrew: Thank you, Lynn.

Changing parenting arrangements

Colin: We are returning to the topic of the day: parenting arrangements after separation. A parent considering relocation should plan well ahead and have a discussion, because it can become very difficult.

Andrew: Absolutely. Tensions can be high after separation. Surprising someone with the possibility that they may no longer see their children regularly can bring out an adversarial response. Raising it early may prevent problems that could jeopardise the job or other arrangements. Have the discussion before accepting employment if possible. Speak with a lawyer, and when making parenting arrangements consider whether either parent may later relocate.

Colin: What happens when circumstances genuinely change?

Andrew: There are two common ways to address parenting arrangements after separation. First, a parenting agreement or parenting plan: a written agreement that both parents have agreed to follow. Second, consent orders: an agreed arrangement taken to court for approval, after which it becomes an order of the court.

The benefit of court orders is that they are binding. If someone does not follow them, withholds children or takes children overseas contrary to the orders, the court can enforce them. The difficulty is that they can be harder to change. If both parties genuinely want to change orders, they can apply by consent to amend them. If the proposed changes are contested, the court may need to decide whether the orders should change in the child’s best interests.

If parents have a parenting plan, it should ideally explain how it may be reviewed or changed. If both agree, they can sign a new written parenting plan. If one parent does not agree, and there is no enforceable order, the conflict can escalate and a parent may seek court orders.

Colin: If a child or teenager wants to change the living arrangements, how does that work?

Andrew: It depends on the arrangement, but parents can agree to changes. If both are content for a son to spend more time with one parent during the week and more time with the other on weekends, they can arrange that. But one parent should not unilaterally make changes without considering the consequences, particularly where court orders apply.

Closing

Colin: We are at the end of the programme once again. It goes quickly. Great information on drones and family law. Thank you to the callers; the programme is always better for your questions.

Andrew: I hope everyone is getting something out of it.

Colin: Thank you, Andrew. This show will be online on the 4CRB website and the Bell & Senior Lawyers website after the show. Andrew joins us again next week at 9:00 Tuesday morning.

Andrew: Thank you. See you then.

Announcer: You have been listening to Legal Matters, proudly brought to you by Bell & Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. Copies of this and past programmes and relevant resources are available to replay or download at bellsenior.com.au and 4crb.com.

References

Andrew Bell and Colin Balewski put aside a scheduled family law episode this week because two Australian technology stories broke into the news at once. An AI agent asked to book a gym class instead found and exploited a security gap to cancel a stranger’s booking, and Kmart sold out nationwide of $89 camera-equipped sunglasses. Both raise legal questions Australian law has not yet settled. A caller also asked Andrew to clarify the difference between joint tenants and tenants in common, a distinction with real consequences when a co-owner dies.

Related long form guides

Key Topics

• Whether an AI agent, its user, or its operator can be held legally responsible for autonomous actions
• The legal gap between ordinary computer misuse offences and unsupervised AI agent behaviour
• Why negligence, the but-for test, and the Civil Liability Act 2003 (Qld) matter more than criminal law here
• Parallel overseas disputes, including Anthropic’s book-scanning copyright class action
• Whether Kmart’s camera glasses are legal to wear and record with in Queensland
• What the recording LED on smart glasses does and does not achieve legally
• Facial recognition, real-time cloud uploads, and defamation risk from wearable cameras
• Smart glasses as assistive technology and the disability discrimination risk of banning them
• Joint tenants versus tenants in common, and how to change between them

Listener FAQ Highlighted in This Episode

• Can an AI agent be sued or charged for something it did on its own initiative?
• Are camera glasses like the Kmart Anko model actually legal to wear and record with in Queensland?
• Does a recording light on smart glasses make filming someone legal?
• Can a business legally ask someone to remove smart glasses on its premises?
• What is the real difference between joint tenants and tenants in common, and can you change between them?

Key Takeaways

1. Software is not a legal person in Australia, so responsibility for an AI agent’s autonomous actions must fall on a human or a business, not the agent itself.
2. Standard computer misuse offences generally require intent, which creates a real gap when an agent acts on an innocuous instruction and exploits a flaw nobody asked it to find.
3. AI agents are trained through positive reinforcement to satisfy the user’s request, which means a blocked task can push the agent toward an unintended workaround rather than simply reporting failure.
4. Businesses running any automated booking or account system should treat unexplained system behaviour as a possible AI-driven exploit and investigate promptly, not dismiss it as a low-value target, since there may now be more AI agents probing systems than human hackers.
5. Queensland has no general law against recording people in public with a camera; the Invasion of Privacy Act 1971 (Qld) covers audio only, and section 227A of the Criminal Code 1899 (Qld) is limited to private places and acts.
6. A recording LED on smart glasses is a manufacturer design choice, not a legal safeguard, and does not create consent, particularly once footage can be uploaded live and matched against public data through facial recognition.
7. Businesses should avoid blanket smart glasses bans because of disability discrimination risk where the glasses serve as assistive technology for vision or hearing impaired customers.
8. Recording and identifying a stranger, or sharing an off-the-cuff remark out of context, can create defamation exposure on top of any privacy concerns.
9. Joint tenants automatically pass to the surviving owner on death regardless of the will; tenants in common pass their share through the deceased’s estate, and couples can convert between the two structures by agreement.

Annotated Transcript

Segment 1, An AI agent that hacked a gym on its own initiative

⚖️ Topic: Liability when an autonomous AI agent exploits a system flaw without being instructed to Relevant law: Civil Liability Act 2003 (Qld); Criminal Code 1899 (Qld) computer misuse provisions

Andrew: The first story is about AI agents, a term built into products like ChatGPT and OpenAI. Someone inadvertently hacked a website with one this week in Australia. The agent wasn’t tricked into it and wasn’t told to do it, it worked it out for itself. This was reported on ABC News two days ago. A man in Melbourne, also called Andrew, asked his AI assistant, something called OpenClaw, a free and open product you can download and connect to your AI system of choice, to book him a gym class. He didn’t ask it to hack in or find loopholes, he just said, “Can you book this for me?” On its own initiative, the agent found that the booking system had a security gap. It let bookings go further ahead than they should, and it let him modify other people’s bookings. It logged in as the user, and nothing on the server stopped it. It cancelled a different person’s class and booked Andrew into the gym class of his choice.

Colin: On the face of things it doesn’t really sound like a legal question, it was a simple request for the AI to book a gym class, and it exposed a major threat online.

Andrew: It has, because this person just asked for a gym class. But what happens if they’d asked, “How do I get to work faster?” and the AI decided to hack into the traffic light system so it’d have green lights all the way into work? Or what if he wanted a discount on his power bill, and suddenly our power utilities have got loopholes found in them?

Colin: Or, “How do I get a better interest rate on my home loan?”

Andrew: I think they’re valid questions to ask, you just don’t expect that if I ask my bank manager something innocuous, he’ll suddenly go and do something dodgy. The software’s gone out of bounds, for want of a better term. The way these AIs are trained involves a lot of what’s called positive reinforcement, the agents are trained to try to make the person asking questions happy. So if it tries to do something and can’t, it will try to find another way, because it doesn’t want to disappoint you. Something similar happened overseas: OpenAI, who make ChatGPT, last week hacked another major website during a training exercise, going from one company to another because they hadn’t fed the proper password into it. So this isn’t necessarily isolated, and I think it’s going to become more common.

Colin: And who’s responsible is usually the next question, because if that gym company says, “You’ve broken our system,” even though the user was just booking a session, there’s an issue here.

Andrew: There is. Normally, software isn’t classed as a legal person. If software does something or doesn’t do something, it can’t be sued, charged, or held liable at law. We’ve discussed before that AI can’t necessarily even hold copyright, and that’s because we have a concept of a legal person. If I have a dog and it bites someone, I’m legally responsible for the actions of my dog, even if I haven’t told it to bite someone, it needed to be properly supervised, and if it wasn’t, I was probably negligent. Similarly, with software, at the moment, as long as I haven’t sat down to actually write something intending to hack a bank or disrupt a traffic system, or engaged someone else to do so, that would be a crime, because most crimes acts require that element of intent. But if I’ve just asked a very innocent question like, “Can you book a gym session for me on Friday?”, where does the liability lie? The problem is people could suffer real damage. If that gym’s software is now broken and unable to take bookings, there’s a real risk of lost revenue, and then they’ll go looking for whoever caused it, or the person who put the initial command into the system.

Andrew: We can look at negligence in parallel. We’ve talked about the but-for test before, but for your actions, would this have happened? Then we look at what a reasonable person would have done in the circumstances. If you’re getting a piece of technology to do a task for you, what should a reasonable person do? If I log onto a website and book a holiday, I don’t know what’s happening behind the scenes. If I download a piece of software onto my computer, it’s exactly the same, it may show some outputs, but how much of that needs to be read? I don’t think someone’s necessarily going to sue over the gym booking itself, but if the software broke the whole booking system and the gym can’t take revenue for two weeks and needs to pay IT experts to reconfigure and fix it, someone’s going to get sued. You need to be very careful if you’re operating a system like this, periodically go through the logs and check it’s doing what you think it’s supposed to be doing.

Colin: It’s something everybody is using. We’re even using it here at 4CRB for simplistic things, reorganising or finding the most important emails in the morning. But those are relatively benign. You’d have thought “book me a gym session” was relatively benign too.

Andrew: Absolutely. I would have thought it would have either come back and said “I can’t do that,” or “here you go,” or “it’s full,” not “I found a weakness in the software and I’ve decided to exploit it.” And I think the ramifications go well beyond just that person with the agent. In the past, maybe the gym was a low-value target for hackers, “we don’t have any money online, the worst they’ll do is deface the website.” Now, if anyone notices anything strange with their software, they probably need to check it out sooner rather than later, because there might be a backdoor that’s been found by an AI or an LLM. With all these agents out there, there are probably more agents now than there are hackers. So if you’re running a business with a website or piece of software that’s not performing properly, you now need to jump on that relatively quickly.

Colin: So, is anything actually being decided here legally, Andrew?

Andrew: No, I don’t think so. It wouldn’t surprise me to see someone charged with hacking after putting in something innocent, and it wouldn’t surprise me to see someone getting sued, either the gym, the gym’s software provider, or the person who requested the booking, before some of this gets decided through the courts. Ultimately, I think the politicians are going to have to decide where the guardrails are, and what a responsible internet user looks like nowadays.

Colin: There are other court cases going on too. Anthropic has been in trouble for having its software read thousands upon thousands of books to develop its writing engine, and it’s now had to pay out a huge copyright fee to the writers whose books the model read.

Andrew: Overseas in America, there was a class action lawsuit on this, authors are going to get around $2,000 to $3,000 each. The companies were buying up secondhand books, slicing the spines off, scanning them, feeding them into their software, and destroying them, arguing this is acceptable use under copyright law. My reading is that it’s dicey what constitutes proper use for copyright in Australia. They’re not retaining the information as a complete copy, but they are taking commercial advantage of it, and there are thresholds in copyright law, for instance around material under 10%. Some of these companies are also accused of illegally pirating books to train their models, because the more natural human language they can get, the better their models reproduce those tasks. They have an insatiable appetite for data, and they’re particularly interested in material from before 2022, because they’re worried they’ll end up training on their own AI-generated output and making it worse.

📎 See also: Autonomous AI Agent Liability under Australian Cyber Law | Legal Matters Ep 18, AI Law | Legal Matters Ep 17, Technology Law Part 2

Segment 2, Kmart’s sold-out camera glasses and Queensland privacy law

⚖️ Topic: Recording people in public with AI-enabled camera glasses Relevant law: Invasion of Privacy Act 1971 (Qld); Criminal Code 1899 (Qld) s 227A; Privacy Act 1988 (Cth)

Andrew: Anko-branded camera glasses for $89, you can’t buy them even if you want to, they’re the latest hot property. These glasses take photos while you’re wearing them, and 1080p HD video. They have Bluetooth, they take hands-free calls, and they look almost identical to Meta’s Ray-Ban smart glasses, which cost between $300 and $700 here. I don’t believe these have an upfront display like the Meta ones, but it essentially means you can go anywhere wearing your glasses, record people, and have that information go to the internet.

Colin: As a real-world example, we have cameras in this building, and we’re able to record voices at times in certain areas like studios, we have to make everybody absolutely aware they’re on camera and that we’re recording voices at certain times. That’s our legal responsibility. How does it work generally?

Andrew: In Queensland, the Invasion of Privacy Act covers listening devices, that covers audio, and doesn’t really cover video devices. It’s legal in Queensland to record people without their consent in a place that’s public, or where they wouldn’t normally expect privacy. You can’t go into change rooms or take photos of people near-naked in bedrooms or places where they’d expect privacy, but otherwise you can typically record people in Queensland wherever you feel like it, as a private person. As an employer, you do have a duty to disclose to employees if you’re monitoring them, but if you’re just walking around wearing these glasses and recording people, you’re pretty much within the law, no matter how offensive people find it.

Colin: That surprises me, I would have assumed we had a right to privacy. I remember, at certain water parks, we put in camera systems because of problems with people peeping on children in bathing suits. I would have thought we had a right to privacy wherever we were.

Andrew: No, it’s not that simple. If no one is aware of a recording, if someone puts a covert device in place and everyone being recorded is unaware, that’s a crime. But if the person wearing or carrying the device is aware of the recording, and it’s not somewhere someone would expect privacy or doing something they’d expect to be kept private, then in Queensland at the moment, it’s okay. This has been possible since we’ve had GoPros, but the element that interests me here is that people don’t know they’re being recorded, even if there’s an LED on the frame, they might just think that’s a stylistic touch. And then there’s the complication of footage being uploaded to the cloud in real time. People have taken Ray-Ban smart glasses and hooked them via Bluetooth into their phone, running facial recognition algorithms against publicly available data. So I can walk down the street and say, “Oh, that’s Colin, hey Colin, how are you going?” That anonymity we normally have when we walk along and aren’t recognised is gone, if you’ve had a headline about you in the past, that could come immediately to the view of the person looking at you from the other side of the train.

Andrew: There is a lot still undecided here. I do think that if someone was using glasses to intimidate someone with a recording, that may fall under a criminal statute. If you run a business, I do think you’d have the ability to ask someone to leave if they were wearing them, but that gets complicated, because there are blind or vision-impaired people using smart glasses who describe things like “there’s a doorway in front of you,” so potentially they’re a disability aid as well, and someone could get in trouble telling a person to remove smart glasses being used in an assistive capacity. If you see someone with what looks like a camera in their lens, or an LED, you should probably assume you’re being recorded, and then decide whether that’s something you’d accept if someone were shoving a mobile phone in your face. I think the current laws don’t really support what society wants out of smart glasses, and it would change society if everyone were wearing them. This is a matter of public policy that politicians need to get involved with.

Colin: AI is one of those things we talk about in the background, and it can go to the nth degree, because someone recording you when you make an off-the-cuff funny remark, and suddenly you’re in trouble, is one of the outcomes down the track.

Andrew: Yes, getting sued for defamation is a definite possibility.

📎 See also: Smart Glasses, Cameras and the Death of Ambient Privacy | Legal Matters Ep 16, Technology Law Part 1

Segment 3, Caller Sandra: joint tenants versus tenants in common

⚖️ Topic: The practical difference between joint tenancy and tenancy in common on a property title Relevant law: Land Title Act 1994 (Qld)

Sandra: Hi, Andrew. I just want you to explain to me the difference between tenants in common and joint tenants, please.

Andrew: Do you have a specific question you’re trying to resolve with the difference?

Sandra: No, I don’t. Many years ago, my late husband and I bought property down here on the Gold Coast. The legal representatives at the time did all the forms for us, and in that transaction, she put us down as tenants in common, and that was picked up by a legal firm here on the Gold Coast and changed. My late husband, of course, is gone now, but I just wanted you to explain the difference, and any ramifications there could have been if it had remained as tenants in common.

Andrew: Joint tenants is often what married couples buy property as. Joint tenants own equal, undivided shares of the property, with a right of survivorship, both parties effectively equally and jointly own the whole property, it’s not split 50/50 as separate shares, it’s completely jointly owned. You can have more than two people as joint tenants. If one person on the title dies, they simply come off the title, and the remaining person or persons own the property going forward automatically, it doesn’t matter what the will says. This is why it’s normally done for married couples: if your husband were to die and you owned the property as joint tenants, you’d end up with sole ownership automatically. Tenants in common, on the other hand, is where multiple parties own distinct shares, equal or unequal, it could be 50/50, or 90/10, or any split. The difference is that you can sell your individual share under a tenancy in common, and that right of survivorship doesn’t exist, so if you owned 50/50 with your husband as tenants in common and he passed away, his 50% would go to his estate and be distributed according to his will. It is possible, via a gift, for married couples to move between tenants in common and joint tenants, or vice versa, by mutual agreement, without being subject to state duty on it, though conveyancing fees would apply. There are tax reasons and asset protection reasons why people may want to hold property one way or the other.

Sandra: Yes, it does, thank you very much for that. I just wanted a law person’s view on what the difference between those two is, and you’ve clarified that for me very nicely. Thank you very much, Andrew.

📎 See also: Tenants in Common vs Joint Tenants QLD | Legal Matters Ep 20, Property Settlement and Will Disputes

This transcript provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances. Contact Bell and Senior Lawyers on (07) 5532 8777 or visit bellsenior.com.au.

Related Episodes

• Legal Matters Ep 18, AI Law
• Legal Matters Ep 17, Technology Law Part 2, Consumer AI
• Legal Matters Ep 16, Technology Law Part 1, Business and Cyber
• Legal Matters Ep 20, Property Settlement and Will Disputes

Key Topics

• The paramount principle, in any parenting dispute, the child’s best interests override either parent’s personal sense of what they deserve.
• The end of the 50/50 presumption, the federal Labor government removed the presumption of equal shared parental responsibility, and the associated assumption of equal time, in 2024.
• Parental responsibility versus time spent, major decision-making power is legally separate from the number of nights a child spends with each parent.
• Independent children’s lawyers and parenting reports, how courts bring in independent voices, including child psychologists, when parents cannot agree.
• Census compliance, penalties for non-completion and for knowingly providing false information.
• Will review and storage, no legal expiry date, but a recommended three-year review cycle and the importance of the original document for probate.
• Switching lawyers and overseas class actions, practical consumer questions on legal representation and cross-border litigation.
• Advance health directives, why a copy is not enough, and where the original needs to sit.

Listener FAQ Highlighted In This Episode

What is the best interests of the child test? It is the paramount factor courts must apply in every parenting decision, covering safety, the child’s own views, and their developmental and emotional needs. Read our full FAQ on the best interests test .

Is 50/50 custody still the default in Australia? No, that presumption was rolled back in 2024. Read our FAQ on the end of the 50/50 custody presumption .

Can a parent with less time still make major decisions for their child? Yes, parental responsibility for schooling, medical care, religion and travel is legally distinct from time spent. Read our FAQ on parental responsibility versus time with children .

How often should I review my will, and where should the original be kept? No mandatory review period exists, but a three-year cycle is recommended, and the original document matters most for probate. Read our FAQ on will reviews, triggers and storage .

Can I switch lawyers halfway through my divorce? Yes, at any time, provided outstanding fees are settled. Read our FAQ on changing lawyers mid-matter .

Is a copy of my advance health directive enough if I can’t speak for myself? No, medical staff are not bound to follow a copy. Read our FAQ on advance health directive originals versus copies .

Listen to the full discussion above.

Key Takeaways

1. Argue from the child’s perspective, not your own. Courts favour parents who can explain why their proposal genuinely serves the child.
2. There is no default 50/50 starting point anymore. Every arrangement is assessed on safety, the child’s views, and developmental needs.
3. Parental responsibility and time spent are separate. A minority-time parent can still share equally in major decisions.
4. Review your will every three years, and keep the original document secure, since a copy is not sufficient for probate.
5. You can change lawyers at any time, in any matter, once outstanding fees are settled.
6. Lodge your advance health directive original with Queensland Health. A copy alone is not legally binding on medical staff.

Next week: the family law series continues with the mechanics of parenting agreements, independent children’s lawyers, and parenting reports in practice.

Annotated Transcript

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This programme provides general legal information only. It is not personal legal advice, everyone’s situation is different, so please seek independent advice for your own circumstances.

Segment, The Best Interests Principle

⚖️ Topic: Why the child’s interests, not the parents’, must drive every decision Relevant law: Family Law Act 1975 (Cth)

Colin: This morning’s topic is what parents need to take home from the point of view of family law. Today we’re moving into children and parenting, and rather than going through specific court decisions, we want to give listeners the practical considerations to actually take home.

Andrew: Parenting affects everyone who separates who has children, whether or not they ever go near a courtroom. There is one single most important factor that needs to be taken into account, and that’s the interests of the child. In any decision around parenting, the number one deciding factor the courts are supposed to consider is what’s in the best interests of the child, those interests come first. It might sound obvious, but it’s difficult to hold on to in the middle of a separation, because everything feels personal.

📎 See also: Best Interests of the Child Test | De Facto Relationships in Queensland

Caller 1, George | Census Non-Completion Penalties

⚖️ Topic: Fines for not completing the census, and for providing false information Relevant law: Census and Statistics Act 1905 (Cth)

George: With the census coming up, I’ve heard a lot of people saying they don’t want to fill out the forms. Can you actually be fined if you don’t?

Andrew: Yes, you can. It’s a Commonwealth offence, and you can be fined up to $364 a day, according to the Bureau of Statistics. If no one is home on the date, a declaration would be filed to say there was no one there, but knowingly providing false or misleading statements is also a crime, and it can result in a fine of up to $3,000.

📎 See also: Legal Myths Busted

Caller 2, Nadine | Will Review and Storage

⚖️ Topic: How often a will needs reviewing, and how the original is stored Relevant law: Succession Act 1981 (Qld)

Nadine: How often is a will required by law to be officially reviewed, even if no important change of circumstances has occurred for a few years?

Andrew: A will, once properly executed, never technically needs to be changed. However, people’s circumstances change all the time. Our recommendation to clients is that they review that everything in their will is current at least every three years. There’s no mandatory time frame, you could write a will at 18 and it would still be valid at 100.

Nadine: How is the will stored by the lawyer, given everyone’s concerns about privacy?

Andrew: Unlike virtually every other document, the physical copy of the will is the most important copy that needs to be retained, because it needs to be sent to the Supreme Court for probate. We scan wills in case something happens, stored in an encrypted, secure cloud, but we also keep the physical copy in a safe, with a chain of custody for anyone signing it in and out.

📎 See also: Will Review Triggers, Frequency & Original Storage (QLD) | Wills and Estates

Segment, Parenting Arrangements After the 50/50 Rollback

⚖️ Topic: The removal of the equal shared parental responsibility presumption Relevant law: Family Law Act 1975 (Cth)

Andrew: Every decision, whether it’s where the children live, how much time each parent gets, or how school and medical decisions are made, should all start from the position of what’s best for the child. There was a perception of uneven decisions around where children stayed after separation, so the law changed to say the default position is both parents get 50% custody. That was rolled back by the federal government in 2024, so there’s now no presumption starting at 50/50 custody. The court will look at the safety of the child, the child’s own views, their developmental and emotional needs, and the parents’ capacity to meet those needs.

Colin: So parents shouldn’t walk in assuming half the time is the best place to start.

Andrew: That’s right, and it cuts both ways, some arrangements will still land at 50%, and if that’s what the parents want and it’s deemed appropriate, that’s not a problem. Not everything has to go through the court, you could come up with a parenting agreement and ask for it to be lodged with the court so it has the power of a court order.

📎 See also: 50/50 Custody Presumption in Australia

Segment, Independent Children’s Lawyers and Parenting Reports

⚖️ Topic: How the court investigates disputed parenting matters Relevant law: Family Law Act 1975 (Cth)

Andrew: If you’re applying to the court, they may appoint an independent children’s lawyer, who represents the children’s interests rather than either parent. Parents put out their position in an affidavit, and the court can order parenting reports, where an independent person interviews everyone involved, including the children. Child psychologists can be involved. Older children, particularly teenagers, will often have their preference given very strong weight, as long as it’s safe and there’s no undue influence. A five-year-old’s stated preference carries far less weight.

📎 See also: Best Interests of the Child Test

Caller 3, Laura | Changing Lawyers Mid-Matter

⚖️ Topic: Switching legal representation partway through a matter

Laura: I’ve just completed my testamentary trust and will, and I was recommended to a divorce lawyer I didn’t feel comfortable with. Can I just change firms?

Andrew: Absolutely, you can change your legal representation at any time. I’d suggest talking with your current lawyer first, but you’re free to move at any point in any proceeding. You would have signed a client services agreement, which sets out the terms, and typically you need to make sure you’ve paid all your bills before you switch.

📎 See also: Changing Lawyers Mid-Matter in Queensland

Caller 4, Len | Overseas Class Action Notices

⚖️ Topic: Opting in versus opting out of a class action

Len: I received an email about a class action against Amazon in the United States, saying I’ve been included as an Australian customer. It wants me to opt out, but it’s complicated.

Andrew: Typically you have to establish your standing as American as part of the requirements for these US class actions, so if you have no tie-in except being a customer, often you’re not eligible. In Australia, you typically have to opt in, they’ll write to you and say you believe you’re in the class, with a deadline to opt in. In America, sometimes it’s the opposite, they’ll assume you’re in unless you opt out, and that can extinguish your rights to sue separately later.

Caller 5, John | Advance Health Directive Originals

⚖️ Topic: Whether a copy of an advance health directive is legally binding Relevant law: Powers of Attorney Act 1998 (Qld)

John: I can’t find my original advance health directive, just a certified copy. Is that good enough?

Andrew: No, it wouldn’t be. Normally the original is filed with Queensland Health, sent there by your lawyers on your instruction. If you don’t have it, my suspicion would be the original is on file there. A copy wouldn’t be legally binding, medical staff may choose to follow it, but they wouldn’t be bound to, and you couldn’t sue them for not following it if there’s nothing on file.

📎 See also: Advance Health Directive Originals vs Copies | Enduring Power of Attorney

Announcer: You’ve been listening to Legal Matters, proudly brought to you by our trusted sponsor, Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programmes, and all relevant resources, will be available for you to replay or download at bellsenior.com.au and 4crb.com.

This transcript provides general legal information only, it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.

Related Episodes

• Ep 19: Drones, Rental Cars and Parenting Relocation
• Ep 20: Property Settlement, Contributions and Will Disputes
• Ep 2: Enduring Power of Attorney
• Ep 3: Wills and Estates

Key Topics

• Family violence now directly affects property settlements: Economic and financial abuse, coercive control, dowry abuse and deprivation of liberty are all expressly recognised. See How Is Economic Abuse Considered in a Family Law Property Settlement?
• Discretionary trusts in property settlements: The two-stage characterisation test, effective control plus capacity to benefit. See How Does the Power of Appointment Affect Whether a Trust Is Treated as Property?
• Replacing an executor: Must be done by redrafting the will or adding a codicil. See Can a Spouse Challenge a Will That Leaves the Family Home to the Other Party?
• Stamp duty on spousal property transfers: Queensland provides a full exemption for transfers between spouses of an interest in the family home.
• Tenants in common vs joint tenancy: Joint tenancy means automatic survivorship; tenants in common means each share passes through the estate.
• Body corporate emergency repairs: The body corporate can act without owner consent in an emergency; cost liability depends on whose pipes caused the problem.
• Property pool basics: Everything the couple owns, valued at trial not separation, see What Is a Property Pool and How Do Add-Backs Work?
• The property settlement process: The four-step framework courts apply, see How Does the Family Law Property Settlement Process Work?
• Coercive control as a crime: Now a criminal offence in Queensland, and also falls within the family violence definition in the Family Law Act.

Related long-form guides

• Gold Coast Property Settlement Timeline and Process
• Mediation vs Court in Queensland Family Law

Listener FAQ Highlighted in This Episode

• How do I change my executor? You must update your will, either a new will or a codicil. If you are also a trustee or appointor of a trust, check the trust deed for the process to change that role separately.
• Is there stamp duty when I transfer my house into joint names with my spouse? No, the Queensland Revenue Office provides a stamp duty exemption for spousal transfers of the family home. Land tax and vehicle registration duty also carry spousal exemptions.
• Can a body corporate call a plumber without asking me first? In an emergency, yes. Whether you pay depends on whose pipes caused the problem, pipes within your own unit’s walls are your responsibility.
• Does family violence affect my percentage of the property settlement? Yes. If you can prove on the balance of probabilities that a course of violent or controlling conduct had a discernible adverse impact on your contributions, the court must now weigh that when calculating the percentage split. See How Does Kennon v Kennon Apply to Family Violence and Property Settlements?
• What if only my spouse’s name is on the house title? Legal title is not determinative. The court looks at beneficial ownership, contributions and equitable interests. See If the Family Home Is Only in My Spouse’s Name, Do I Still Have a Claim?
• What happens to my self-managed super fund when I die? The assets pass according to your binding death benefit nomination, not your will, so keeping that nomination current is critical.

Listen to the full discussion above.

Key Takeaways

1. Family violence is no longer just background context in a property settlement. Since June 2025 it is a statutory factor the court must weigh when assessing contributions and future needs.
2. Financial control, coercive control, dowry abuse and isolation are all expressly family violence under both the Family Law Act 1975 and the Domestic and Family Violence Protection Act 2012 (Qld).
3. If there is a family trust in your relationship, find out who holds the power of appointment. That control point determines whether the trust falls into the property pool.
4. Review your will every three to four years, especially if you want to change your executor, which requires a formal will update.
5. Spousal transfers of the family home in Queensland attract no stamp duty, confirm specifics with a solicitor before proceeding.
6. Next week: Andrew will return to explore more recent decisions, including a case where property proceedings were used to gather evidence for overseas litigation.

Annotated Transcript

📋 This transcript has been lightly edited for clarity. Legal commentary and internal links have been added to assist readers. Caller names are as broadcast.

Segment 1, Opening and Death-in-Property Disclosure

⚖️ Topic: Mandatory disclosure of deaths in Queensland property sales Relevant law: Queensland consumer protection law; contrast with Civil Liability Act 2002 (NSW)

Announcer 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. This program provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

Colin Balewski Well, welcome to Legal Matters, and it is a very good morning to Andrew Bell from Bell and Senior Lawyers.

Andrew Bell Good morning. Thanks for having me back here, Colin.

Colin It is an absolute pleasure. You have got some interesting stories from your practice this week. Where would you like to start?

Andrew We had a question about whether you have to disclose if someone died or was murdered on a property you are trying to sell. There are very strong opinions on this, and part of the confusion is that the rules differ between states. In New South Wales, if someone died in your house within the last five years, there is a mandatory disclosure requirement. In Queensland, it is the opposite, you do not have to tell anyone anything. However, if a buyer asks you directly and you lie, you could be caught out under consumer protection laws.

Colin So the “get out of jail free” card is just to tell the truth if asked directly.

Segment 2, Topic Introduction: Trusts, Control and Family Violence

⚖️ Topic: Property pool recap and 2025 family violence reforms Relevant law: Family Law Act 1975 (Cth) s 79, s 4AB(2), as amended by the Family Law Amendment Act 2024, for proceedings instituted on or after 10 June 2025

Colin The topic of the day is family law: trusts, control, and family violence in property settlements. But first, Andrew, a quick recap of last week.

Andrew Last week we talked about property settlements and the four elements everyone needs to know about. First, the property pool, everything the couple owns, whether it is real estate, superannuation, shares, businesses, vehicles, valued at the date of trial or settlement, not at the date of separation. Contributions are also considered, both financial and non-financial. And since June last year, the court is only looking at property that actually exists, not necessarily what has been spent by either party.

📎 See also: What Is a Property Pool and How Do Add-Backs Work? | Legal Matters Ep 23: Separation, Property Pools and Add-Backs

Segment 3, Family Violence and Property Settlements

⚖️ Topic: The 2025 expansion of the family violence definition Relevant law: Family Law Act 1975 (Cth) s 4AB(2); Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 11, 12

Andrew Family violence is a sensitive subject. If you or someone you know is a victim of family violence, counselling services are available, and you can call the police. In 2025, the definition of family violence in the Family Law Act was expanded. It now expressly includes economic or financial abuse, and specifically names dowry abuse as an example. It covers unlawfully depriving a family member of their liberty, and preventing someone from maintaining connections with their family. Section 79 now requires the court to consider family violence when deciding how to divide property.

Colin So it goes well beyond physical violence.

Andrew Absolutely. Coercive control is now a crime in Queensland, and all of those oppressive behaviours, someone using their superior economic power, social position or physical size to stop the other person from living a free and full life, fall within the family violence definition for the purposes of the Family Law Act. It is not uncommon for a property settlement process to begin and one person to take all the assets and put them under their exclusive control, leaving the other with no financial resources to legally fight back. Other examples include restricting someone from leaving the house, controlling what they wear, or what they eat.

Colin And how does that wash through into a property settlement percentage?

Andrew If you can prove on the balance of probabilities that family violence had a discernible adverse impact on your contributions, that is the civil standard, more than 50% likely, the court must take that into account when calculating the percentage split. It has always been possible through case law going back to Kennon v Kennon in 1997, but Parliament has now written it directly into the legislation.[^1]

📎 See also: How Does Kennon v Kennon Apply to Family Violence and Property Settlements? | How Is Economic Abuse Considered in a Family Law Property Settlement? | What Is Dowry Abuse and How Does It Affect a Property Settlement? | What Is a Domestic Violence Order in Queensland?

Caller 1, Margaret: Changing an Executor

⚖️ Topic: Updating an executor named in a will; appointors of trusts Relevant law: Succession Act 1981 (Qld)

Colin We have our first caller. It is a very good morning to Margaret. Margaret, ask your question of Andrew.

Margaret (caller) My solicitor is one of my executors in my will, and I would like to appoint someone else and take him off. Do I have to change my will to do that?

Andrew Yes, absolutely. If he or she is named as the executor specifically, you need to change the will, either via a codicil or by drafting a new will. I would recommend reviewing your will every three to four years, and if you need a change like this, create a new will and name the new executor there.

Margaret I also have two trusts.

Andrew A trust has someone called an appointor who then appoints the trustee who looks after the trust. If you are the appointor and the trust already exists, not a testamentary trust, you can generally revoke the current trustee and appoint a new one under the terms of the trust deed. I would get someone to review the trust deed to confirm the correct procedure.

📎 See also: Can a Spouse Challenge a Will That Leaves the Family Home to the Other Party? | How Does the Power of Appointment Affect Whether a Trust Is Treated as Property?

Caller 2, John: Guaranteeing a Specific Beneficiary Gets a Property

⚖️ Topic: Joint tenancy, joint names and property succession Relevant law: Land Title Act 1994 (Qld) ; Succession Act 1981 (Qld)

Colin It is a very good morning to John. John, ask your question of Andrew.

John (caller) I have two properties. One is in joint names with my wife, and a second house is entirely in my name. I would like to leave the second house to one specific person. Is there any way I can guarantee they will get it without it being contested?

Andrew If you put the property into joint names as joint tenants with that person, when you pass it would automatically go to them, that is the most certain way. However, you would be giving them an equal property right in the property right now, before you pass, and you cannot revoke that later. You need to take that into account. Other options include a trust structure, or leaving it in your will, though a will may be contested depending on how it is drafted. We did cover the various options and their pros and cons a couple of weeks ago on the program.

John I trust this person completely and I am financially well-off.

Andrew Then potentially it would be worth putting it into a joint tenancy. When you pass, it will automatically revert to them, bypassing the will process entirely.

📎 See also: If the Family Home Is Only in My Spouse’s Name, Do I Still Have a Claim? | Legal Matters Ep 22: Wills, Probate and Family Provision Claims

Caller 3, George: Stamp Duty on Transferring the Family Home to a Spouse

⚖️ Topic: Stamp duty exemption for spousal property transfers in Queensland Relevant law: Duties Act 2001 (Qld) ; Queensland Revenue Office spousal exemption

Colin We have another caller, it is George. George, ask your question of Andrew.

George (caller) The house we are living in is in my wife’s name. I am thinking of going halves. Do I have to pay stamp duty?

Andrew Why are you looking to do this, George?

George For the sake of my kids, making sure they will inherit part of the house.

Andrew There is an exemption for love and affection where some transfer fees are bypassed, but I want to confirm the full position before giving you a definitive answer. I will check the Queensland Revenue Office and let you know next week.

[After the break]

Andrew During the break I looked it up. There is indeed a stamp duty exemption if you transfer an interest in your family home to your spouse. Land tax and vehicle registration duty also carry spousal exemptions.

Colin Wonderful, so no stamp duty, George.

📎 See also: How Does the Family Law Property Settlement Process Work?

Sponsor Break

Bell and Senior Lawyers, wills, probate, powers of attorney, property matters. Phone (07) 5532 8777 or visit bellsenior.com.au .

Caller 4, John 2: Tenants in Common on a Commercial Property After a Spouse’s Death

⚖️ Topic: Tenants in common, deceased joint owner, and stamp duty on commercial transfers Relevant law: Land Title Act 1994 (Qld) ; Duties Act 2001 (Qld) ; superannuation binding death benefit nominations

Colin We have another caller, it is a second John. John, ask your question of Andrew.

John 2 (caller) My wife and I owned a commercial property as tenants in common. She has passed away, and I want to bring someone else in. Will I have to pay stamp duty?

Andrew There is no general distinction between commercial and residential property under the Land Titles Act when it comes to ownership structures. Bringing a new co-owner onto a commercial property will likely attract stamp duty, but it depends on how you structure it, whether you are creating a tenants-in-common arrangement or a joint tenancy, and whether they are paying market value for their share. I would recommend getting specific commercial legal advice before proceeding.

John 2 What about my self-managed super fund? My wife was a member and she has passed away.

Andrew In any super fund, the assets are held in trust for the members. When a member dies, the binding death benefit nomination determines where those assets go, that bypasses the will. If your fund no longer has a valid nomination in place for the remaining structure, you will need to review it with an adviser.

📎 See also: Legal Matters Ep 2: Enduring Power of Attorney

Caller 5, Amanda: Body Corporate and Emergency Plumbing Costs

⚖️ Topic: Body corporate emergency repairs and liability for plumbing costs Relevant law: Body Corporate and Community Management Act 1997 (Qld)

Colin We have another caller, it is Amanda. Amanda, ask your question of Andrew.

Amanda (caller) I have a rental property. The owner underneath reported a water leak from my unit. The body corporate organised a plumber and sent me the bill, but they did not contact me first to ask if I wanted to use that plumber. Am I required to pay?

Andrew It depends on the body corporate rules, but typically there is an emergency exemption, if a leak is causing or threatening damage to another person’s property, the body corporate can call a tradesperson on an emergency basis and hold the responsible party liable. Plumbing leaks generally qualify as an emergency.

The key question on liability is: whose pipes were they? If they are common pipes serving multiple units, the body corporate pays. If they are inside your own walls for your own service, you pay. If they are someone else’s pipes in their walls that happen to affect you, that person pays. The specific facts determine who is responsible. You are entitled to write to the body corporate asking on what basis they acted and requesting them to justify the bill before you decide whether to pay.

Amanda Interestingly, I am the treasurer, and they paid a similar plumbing bill for another unit without charging that owner.

Andrew That is worth raising with them. Consistency in how the body corporate applies its rules matters, and you can ask why the treatment was different.

Closing Summary, Family Violence and the Property Settlement Percentage

⚖️ Topic: How family violence flows through to the property settlement percentage Relevant law: Family Law Act 1975 (Cth) ss 79(4), 75(2)(o)

Colin We really did not get to fully explore the trust and family violence topics today, last calls, and a brief summary?

Andrew On the property settlement: there are four elements, what is in the property pool, who contributed and how, what are the future needs of the parties, and, since 2025, if there was family violence. When calculating the percentage split, the court now assesses what family violence occurred, how it affected the parties, and whether someone needs an adjustment accordingly. It is not just a background factor anymore; Parliament has put it directly into the Act.

Colin We will continue this discussion next week. Andrew, thank you very much.

Andrew Thank you to everyone who called in. We will talk next week.

Announcer You have been listening to Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. A copy of this and past programs and all relevant resources will be available to replay or download on bellsenior.com.au and 4crb.com.

Disclaimer: This is an edited and annotated transcript of the live radio broadcast. Legal commentary and links to legislation and FAQs have been added for educational purposes and do not constitute legal advice. To hear the full unedited version, please listen to the audio file above. This transcript provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice by contacting Bell Senior Lawyers on (07) 5532 8777.

Legal Deep Dive: Trusts and Family Violence in Property Settlements

The broadcast covered these topics in outline. The following provides the detailed legal analysis that time did not allow on air.

The Two-Stage Characterisation Test for Discretionary Trusts

The Caldwell and Caldwell [2026] FedCFamC1A 81 decision confirmed the proper sequence of analysis when a discretionary family trust is in dispute:

Key point: The Full Court held that even an unexercised power of appointment satisfies the control limb. The trust’s purpose and history cannot be used to argue it is not property, those factors only matter later when the court decides what adjustment to make.

📎 See also: How Does the Power of Appointment Affect Whether a Trust Is Treated as Property? | What Is the Two-Stage Characterisation Test for Trust Assets?

The Kennon v Kennon Test, Now in Statute

Kennon v Kennon [1997] FamCA 27 established that a course of violent conduct can justify an adjustment to contributions if it:[^1]

1. Constitutes a course of violent conduct
2. Has a discernible adverse impact on the affected party
3. Makes that party’s contributions significantly more arduous

The 2025 reforms did not replace Kennon, they extended it. Economic and financial abuse, coercive control, dowry abuse, deprivation of liberty and isolation are now expressly within the family violence definition, giving practitioners a clearer statutory basis than relying purely on the case-law line.

📎 See also: How Does Kennon v Kennon Apply to Family Violence and Property Settlements? | How Is Economic Abuse Considered in a Family Law Property Settlement?

The Legislative Framework (from 10 June 2025)

📎 See also: What Is a Domestic Violence Order in Queensland? | What Is Unlawful Deprivation of Liberty as Family Violence? | What Does Preventing Family Connections Mean as Family Violence?

Related Episodes

• Legal Matters Ep 23: Separation, Property Pools and Add-Backs
• Legal Matters Ep 22: Wills, Probate and Family Provision Claims
• Legal Matters Ep 21: De Facto and Married Property
• Legal Matters Ep 20: Property Settlement, Contributions and Will Disputes
• Legal Matters Ep 19: New E-Bike Laws and Family Law
• Legal Matters Ep 4: Blended Families

Footnotes

1. Kennon v Kennon [1997] FamCA 27, Full Court, established the three-part test for violent conduct affecting contributions. austlii.edu.au
2. Caldwell and Caldwell [2026] FedCFamC1A 81, Full Court of the Federal Circuit and Family Court of Australia, May 2026. briefonline.com.au
3. Family Law Act 1975 (Cth) ss 4AB, 79(3), 79(5), 75(2)(o), as amended by the Family Law Amendment Act 2024, for proceedings instituted on or after 10 June 2025. legislation.gov.au
4. Domestic and Family Violence Protection Act 2012 (Qld) ss 8, 11, 12. legislation.qld.gov.au
5. Body Corporate and Community Management Act 1997 (Qld). legislation.qld.gov.au
6. Duties Act 2001 (Qld), spousal exemption for family home transfers. legislation.qld.gov.au

Andrew Bell returns to Legal Matters to finish the current Family Law series by explaining how courts now handle separation for married and de facto couples, what goes into the property pool, and how recent case law has changed the way money spent before trial is treated. He then takes calls on enduring powers of attorney, health directives, wills, inheritances and boundary encroachments, showing how family law and succession law intersect in practice.

Key Topics

• Separation and Time Limits: Married couples need 12 months of separation before divorce, then 12 months post-divorce to file a property settlement; de facto couples have two years from separation. See Property Settlement Time Limits After Separation
• The Property Pool: Everything the couple owns, real estate, bank accounts, superannuation, businesses, vehicles, trusts, less liabilities, valued at trial or settlement, not separation. See What Is a Property Pool and How Do Add-Backs Work?
• The Four-Step Process and 2024 Reforms: Existing property, contributions, future needs, and the new requirement to identify existing legal and equitable interests. See How Does the Family Law Property Settlement Process Work?
• Add-Backs After the Full Court Decision: Spent money can no longer be notionally resurrected in the pool; waste and dissipation now affect the contributions analysis instead. See What Is a Property Pool and How Do Add-Backs Work?
• Enduring Powers of Attorney and Health Directives: Who should hold originals versus certified copies, and how nephews and other relatives fit into inheritance expectations. See Who Should Hold My Enduring Power of Attorney and Health Directive?
• Executor Duties and Limitation Periods: Beneficiaries generally have six years from death to bring a claim against an executor. See What If an Executor Does Not Distribute an Estate Properly?
• Protecting Inheritances From a Separated Spouse: Remaining legally married keeps future inheritances exposed to a property settlement claim. See Can My Separated but Undivorced Spouse Claim on My Inheritance?
• Boundary Encroachments and Adverse Possession: Long-unchallenged encroachments can create risk for an executor selling the property later. See Do Boundary Encroachments Matter for My Executor?

Related long form guides

• Gold Coast Property Settlement Timeline & Process
• Mediation vs Court in Queensland Family Law
• Avoiding Probate and Family Provision Claims QLD
• Estate Planning 101: Wills & Powers of Attorney

Listener FAQ Highlighted in This Episode

• How long after divorce do I have to start a property settlement? Married couples generally have 12 months from a final divorce order, while de facto couples have two years from separation before needing the court’s permission to file late. See Property Settlement Time Limits After Separation
• What counts as the property pool, and when is it valued? It includes all assets and liabilities of both parties and is valued at trial or settlement, not at separation, so delay can shift outcomes. See What Is a Property Pool and How Do Add-Backs Work?
• Do courts still add spent money back into the pool? Recent Full Court authority holds that only property existing at the hearing can be included; wasteful spending is now addressed through the contributions analysis instead. See What Is a Property Pool and How Do Add-Backs Work?
• Who should hold my enduring power of attorney and health directive? Attorneys and Queensland Health should have certified copies, while originals stay safely with a solicitor or accountant. See Who Should Hold My Enduring Power of Attorney and Health Directive?
• Can my executor be sued for mishandling an estate? Yes, beneficiaries generally have six years from the date of death to bring a civil claim for breach of executor duty. See What If an Executor Does Not Distribute an Estate Properly?
• Can my separated but still-married son’s spouse claim his inheritance? Yes, while he remains legally married, an inheritance can form part of a future property settlement pool. See Can My Separated but Undivorced Spouse Claim on My Inheritance?
• Do boundary encroachments matter for my estate? Long-standing unchallenged encroachments can create adverse possession risk for a selling executor, so put neighbours on notice and get a survey now. See Do Boundary Encroachments Matter for My Executor?

Key Takeaways

1. Know your deadlines. Married couples usually have 12 months after divorce to start property proceedings, de facto couples have two years after separation, and beneficiaries often have six years from death to challenge executor conduct.
2. Understand the property pool. It covers all assets and liabilities of both parties, valued at settlement or trial, and recent case law has reshaped how courts deal with money that has already been spent.
3. Secure and document joint funds. Recording withdrawals, legal fees and personal expenses creates evidence for later contribution arguments and may deter unilateral dissipation.
4. Store originals, rely on certified copies. For wills, enduring powers of attorney and health directives, keep the originals safely with professionals, and use certified copies when dealing with banks, hospitals and care providers.
5. Act early on boundary issues. Putting neighbours on notice and obtaining surveys now avoids leaving your executor with a complex encroachment or adverse possession dispute.

Annotated Transcript

📋 This transcript has been lightly edited for clarity. Legal commentary and internal links have been added to assist readers. Caller names are as broadcast.

Segment 1, Introduction and Family Law Recap

⚖️ Topic: Separation, time limits and property pools Relevant law: Family Law Act 1975 (Cth) Pt VII, Pt VIII

Announcer 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. This program provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

Colin Balewski Well, as the promo states, welcome to Legal Matters, and it is a very good morning to Andrew Bell from Bell and Senior Lawyers.

Andrew Bell Great to be back once again, Colin.

Colin We have had some fun over the last couple of weeks, we have learned a lot. We are doing a family law recap this morning, separation, property pools, and recent case law. So, it will be an interesting discussion, but the program does not work without you. It is your program, after all. If you would like a little bit of free legal information this morning, we would love to hear from you. Do not leave it to the end of the program. The number to call is (07) 5520 8888.

We might start with a recap, Andrew, on what we talked about last week.

Andrew Well, last week we took a diversion to talk about wills and why structuring your will is a very personal thing and depends on your situation. And we are back to talking about family law. Where we had left off, I had promised we would talk about some examples and case studies on separation, which we will round out today. Separation is when one or both parties intend to end a relationship, married or de facto. Once you are married, you need 12 months of separation before you can get a divorce. And a property application must be filed within 12 months of a divorce being final. If you are a de facto couple, which means you are genuinely living in a domestic relationship for at least two years, then you have two years from separation to do that property settlement.

And key to that property settlement is the term called the property pool. That is everything that the couple owns, real estate, bank accounts, superannuation, shares, businesses, vehicles, cryptocurrency, trusts, and then liabilities are taken off that. The most important thing to take away about this property pool is that it is valued at the date of the trial or the settlement, not at the date of separation. So a delay can completely shift outcomes, which is why timing becomes a tactical decision.

📎 See also: Legal Matters Ep 19: New E-Bike Laws & Family Law | Legal Matters Ep 20: Property Settlement, Contributions & Will Disputes | Property Settlement Time Limits After Separation

Segment 2, The Four-Step Property Process and Recent Reforms

⚖️ Topic: Contributions, future needs and add-backs Relevant law: Family Law Act 1975 (Cth) s 79, s 90SM

Colin Balewski Let us start rolling through the mechanics. The actual process the court follows once it gets to that point, can you outline how that works?

Andrew Bell There are four broad steps that the court will take into account. You can decide to agree amongst yourselves about how you are going to separate things, but if you have to go to the court, they will look at four steps. They will look at the existing property. They will look at what the contributions are, so that is financial contributions, how much money you put in to purchase things and where the money came from, but also any non‑financial contributions, were there kids cared for, was one of the partners keeping the household running or taking someone through study. Then they will look at future needs, taking into account age, health and the care of children. And then, the last step is that they will use that to calculate a percentage. They also now have to identify the existing legal and equitable rights and interests in the property.

In 2024, the Family Law Act was amended. The new wording requires the court to explicitly identify those existing rights and interests. That word “existing” turned out to be doing a lot of work, particularly for what we used to call add-backs. The amendments also write family violence, including economic abuse, into how contributions and outcomes are assessed, instead of leaving it purely in case law. Today we are looking at how some of those contribution issues and add-backs work with recent decisions.

📎 See also: How Does the Family Law Property Settlement Process Work? | What Is a Property Pool and How Do Add-Backs Work?

Segment 3, Case Study: Spent Money and Add-Backs

⚖️ Topic: Dissipation of the pool and add-backs Relevant law: Family Law Act 1975 (Cth) s 79; recent Full Court decisions

AndrewThe first case I want to talk about was decided in July last year. It is a big change from how things used to work. Previously, if one party spent money before a trial, on legal fees, gambling, holidays around the world or buying a new sports car, and effectively distributed joint funds to themselves, the court could notionally add that spent money back into the property pool, treating it as if it still existed. Those were called add-backs. This meant people could not simply burn through the cash and sink the pool before the other party got a chance.

In this case, the parties had been together for just over six years, they had two young children, and they had an asset pool of around $600,000 plus superannuation. They had agreed between themselves to add back roughly $590,000 that had been spent, mostly on legal fees and personal expenses. At trial, the judge declined to add that money back. On appeal, the Full Court held that under the new section 79 wording only property that actually exists at the time of the hearing can be included in the pool. Spent money is gone, it cannot be resurrected on the balance sheet just because it once existed.

AndrewThe practical effect is that securing your funds if you are separating has become more important. In smaller pools, if cash gets spent and there is only a house and some super left, there is simply less to divide. The person who spent the money may receive a lower percentage, but the total share the other person receives could still be too little to live on if the pool has been depleted.

Colin Balewski So, Andrew, how do you secure it if one person has been in charge of the finances throughout the entire relationship?

Andrew Ultimately the best advice is do not go adversarial as your first step. Talk about things and try to come up with a preliminary agreement on what is happening with the assets rather than just walking away. Not every relationship ends nicely or with good communication, but if you can agree to freeze joint accounts, move funds into a joint trust, or agree that certain sale proceeds are not to be touched until a settlement is reached, it helps. And if you cannot, you should get advice before you walk away, so that you do not end up in a position where the court says, “You did not contribute much; you can have what is left,” but what is left is not enough to support you.

📎 See also: What Is a Property Pool and How Do Add-Backs Work? | Property Settlement Time Limits After Separation

Segment 4, Caller: John, EPOAs, Health Directives and Nephews

⚖️ Topic: Enduring powers of attorney, health directives and family provision standing Relevant law: Powers of Attorney Act 1998 (Qld) ; Succession Act 1981 (Qld)

Colin Balewski We have our first caller. It is a very good morning to John. John, ask your question of Andrew.

John (caller) Good morning Andrew, how are you?

AndrewI am good thank you John, how are you?

John Great. Now, I just want to know, I have had an enduring power of attorney done, and a health directive. Who should hold a copy of my health directive?

Andrew The health directive should be added to your Queensland Health record so they can help make any decisions, and a copy should be held by your attorneys. For your enduring power of attorney, the original document is the one that holds all the power, but I would recommend that you get a certified copy and you have a copy, and your attorneys that you have nominated have a copy, and that the original is held in a safe location, your accountant or your lawyer. If someone later questions whether the copy you present is legitimate, you can go and get the original. You really do not want to lose or damage that original because it is the one that actually has the legal authority.

John When I was drawing up my enduring power of attorney, my nephew was going to be acting as one of my attorneys, but he wanted a cut of my estate, so I declined his offer because I have left my entire estate to my daughter. Can he have a claim on anything?

Andrew He cannot have a claim unless he would ordinarily expect to inherit under your will. If you are financially supporting him or have in the past, he may think he has an entitlement, but if he does not, there is nothing automatic. He does not have automatic standing as a nephew under the Queensland legislation to inherit. So, it is unlikely he could challenge your decision to leave your estate to your daughter.

John Yes, I have not assisted him in any way, only emotionally when his father passed.

Andrew The test is whether someone would ordinarily expect to inherit. Normally that is a spouse, child, or someone you are financially supporting. If that is not the case, nephews generally do not have that expectation.

📎 See also: Who Should Hold My Enduring Power of Attorney and Health Directive? | Family Provision Claims QLD

Segment 5, Certified Copies and Losing Originals

⚖️ Topic: Certified copies vs originals Relevant law: Oaths Act 1867 (Qld) ; probate practice

Colin Balewski On the back of that phone call, Andrew, certified copy. Let us make that completely clear. What is the definition?

Andrew Bell A certified copy is a copy of a document that someone authorised under the Oaths Act has said is a true and correct copy of another document. They sight the original and compare it with the copy, then write on the copy words like “I have sighted the original and this is a true and correct copy.” There are free JP services available, often at supermarkets, that can do this. Take the photocopy, bring the original, ask them to stamp it, and you have that certified copy.

Most organisations will accept certified copies instead of originals. But for a few documents, wills and enduring powers of attorney in particular, the original is still crucial. If you send a will to the Supreme Court for probate, they want the original. If you are transferring a house using an enduring power of attorney, the bank may insist on seeing the original. If that original gets damaged in your bag or lost in a coffee spill, you may have to redo the document.

📎 See also: Probate Process QLD | Who Should Hold My Enduring Power of Attorney and Health Directive?

Segment 6, Caller: Amy, Executor Duties and Six-Year Limit

⚖️ Topic: Misdistribution of estates and limitation periods Relevant law: Succession Act 1981 (Qld) Pt 4; limitation periods

Colin Balewski It is now a very good morning to Amy. Amy, you are there, ask your question of Andrew.

Amy (caller) Yes, it is about my husband’s will. He died in 2020. He was an ex‑policeman. My ex son‑in‑law had his will. I know I should have got the money out of Maurice’s super.

Andrew Bell Superannuation is usually outside of the will. It depends on the death benefit nomination he made. Have you seen a copy of the will?

Amy Yes, I have. I have got a copy of the will.

Andrew Are you concerned that it has not been given out properly?

Amy It has not been given out properly, I know. I was the beneficiary.

Andrew In Queensland, you generally have six years from the date of death to bring a claim against the executor if they have not done their job properly. We are getting very close to that limit in your case. I would urgently suggest you seek paid legal advice and get the probate information from the Supreme Court. If there is a problem, the executor can be personally liable, but you need to act before the limitation period expires.

Amy Could I get the police to charge him?

Andrew No. The police will say it is a civil matter. This is about executor duties, not a criminal offence. The remedy is a civil claim against the executor, not police involvement.

📎 See also: What If an Executor Does Not Distribute an Estate Properly? | Does Superannuation Form Part of My Estate?

Segment 7, Caller: Trish, Protecting Inheritances From a Separated Spouse

⚖️ Topic: Separation, divorce and future inheritances Relevant law: Family Law Act 1975 (Cth) Pt VIII, Pt VIIIAB

Colin Balewski We are going to move now to Trish. Trish, ask your question of Andrew.

Trish (caller) Yes, thank you. My son left his wife at the beginning of 2024 owing to her being involved with drugs, alcohol and gambling. It left him with nothing. He came to live with me for 12 months and now he is renting with other family. My question is that he is actually afraid to file for a divorce based on the company that she keeps. If my husband or I pass away, is there any time frame within which she could possibly claim a portion of inheritance that we leave to him?

Andrew Bell They are separated but not divorced. They are still legally married. There is a 12‑month window after a divorce where either party can seek a property settlement. It is whatever is in their possession at the date of that property settlement application that is divided up. If he were to inherit, say, a million dollars while still married, that million could be part of the property pool if she later brings a claim. I would advise that he gets divorced, even if he needs to notify the police and, if anything bad happens, apply for a domestic violence order. A divorce starts the clock. Twelve months after the divorce, if no property settlement claim is made, she would need the court’s permission to bring a late claim, which is much harder.

Trish It is not really his assets, he has not got anything and neither has she, but it is more about my husband’s and my assets if we pass away.

Andrew Bell If they are legally his under your wills, then those assets are his property, and they can be divided in a property settlement. So if you are concerned about protecting those assets from her, encouraging him to divorce sooner rather than later is sensible.

📎 See also: Can My Separated but Undivorced Spouse Claim on My Inheritance? | Property Settlement Time Limits After Separation

Segment 8, Caller: Bob, Boundary Encroachments and Adverse Possession

⚖️ Topic: Encroachments and adverse possession risk Relevant law: Land Title Act 1994 (Qld) ; limitation and adverse possession principles

Colin Balewski We have another caller. It is a very good morning to Bob. Bob, ask your question of Andrew.

Bob (caller) Andrew, I live on acreage, and my neighbour’s driveway and his underground services easement is right against our common boundary. I suspect he has encroached. I am in my late 80s, and for the sake of harmony I have done nothing about it. My concern is, when my executor sells the property after my passing, is there going to be a problem because she is aware of it?

Andrew Bell Potentially, yes. It depends how long they have been encroaching and how they have treated that area. In many cases, if someone has occupied and used part of another person’s land as if it is their own for a very long period, they may seek adverse possession, which is recognition of ownership of that strip. To deal with this properly, you would start by getting a surveyor’s report to confirm the boundary. If there is encroachment, you would write to the neighbour putting them on notice that you believe they are encroaching and asking them to rectify it. That notice and the survey can then be kept with your title and estate documents so your executor has clear evidence and is not taken by surprise.

Bob How would they rightfully claim that? Would they get an easement?

Andrew Bell They would usually apply to the court and argue they have treated the land as their own, but if you have put them on notice and can show you have not consented, that makes it much harder for them. In any case, I would be putting them on notice sooner rather than later.

📎 See also: Do Boundary Encroachments Matter for My Executor? | What If an Executor Does Not Distribute an Estate Properly?

Segment 9, Closing Summary

Colin Balewski Well, that went very quickly. Thank you to all of our callers this morning, John, Amy, Trish and Bob. Your questions add to the show and to the information we provide.

Andrew Bell Thank you, Colin. As we have said across this series, separation principles are broadly consistent whether you are married or in a de facto relationship. The key is understanding what goes into the property pool, how contributions and future needs are assessed, and what the time limits are for property settlements and estate claims. If listeners can keep those principles in mind and seek advice early, the outcomes are usually less stressful.

Colin Balewski And you can hear Legal Matters every Tuesday morning at 9am. Andrew, thank you very much again for your time this morning.

Andrew Bell Thank you, Colin. Talk to you next week.

Announcer You have been listening to Legal Matters, proudly brought to you by our trusted sponsor Bell and Senior Lawyers. Call them today for all your legal needs on (07) 5532 8777. A copy of this and past programs and all relevant resources will be available for you to replay or download on bellsenior.com.au and 4crb.com.

Disclaimer: This is an edited and annotated transcript of the live radio broadcast. Legal commentary and links to legislation and FAQs have been added for educational purposes and do not constitute legal advice. To hear the full unedited version, please listen to the audio file provided at the top of the page. This transcript provides general legal information only. It is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances by contacting Bell Senior Lawyers on (07) 5532 8777.

Related Episodes

• Legal Matters Ep 19: New E-Bike Laws & Family Law
• Legal Matters Ep 20: Property Settlement, Contributions & Will Disputes
• Legal Matters Ep 21: De Facto, Married Property
• Legal Matters Ep 4: Blended Families
• Legal Matters Ep 3: Wills and Estates
• Legal Matters Ep 7: QCAT and Disputes

Footnotes

1. Family Law Act 1975 (Cth) ss 4AA, 79, 90SM, 90G, 90UJ. legislation.gov.au
2. Succession Act 1981 (Qld) Pt 4 and limitation periods for estate claims. legislation.qld.gov.au
3. Powers of Attorney Act 1998 (Qld); Oaths Act 1867 (Qld) (certification of documents). Powers of Attorney Act | Oaths Act
4. Land Title Act 1994 (Qld) and related adverse possession principles. legislation.qld.gov.au
5. Advance health directive process and forms (Queensland Government). Advance Health Directive Info | AHD Forms

Key Topics

• What Probate Actually Is: The Supreme Court’s formal recognition that a will is valid and that the executor has authority to deal with the estate
• Why Wills Get Challenged: Invalid execution, incomplete paperwork, competing wills, testamentary capacity, undue influence, and family provision claims
• Who Can Bring a Family Provision Claim: Spouses, de facto partners, children, step-children, grandchildren, and other dependants under the Succession Act 1981 (Qld)
• Estate Planning Options Discussed: Lifetime gifting, joint ownership and survivorship, superannuation binding death nominations, discretionary and testamentary trusts, and life interests
• Why None Of This Is General Advice: Cost and compliance, Centrelink deprivation rules, borrowing capacity, and the risk of a later change of mind
• Caller 1, Suzanne: How to locate a deceased sister’s will when no lawyer’s details or phone records are available
• Caller 2, Ray: A seven year vehicle service dispute and the QCAT Consumer Trader Dispute pathway

Listener FAQ Highlighted in This Episode

• What is probate and why does it matter? Probate is the Supreme Court formally endorsing a will as valid and confirming the executor’s authority. Without it, banks and the Titles Registry will not release assets to the estate. See our Probate Process QLD FAQ .
• Can I simply write in my will that a family member gets nothing? You can direct your estate however you choose, but eligible people, including estranged children, may still bring a family provision claim under the Succession Act 1981 (Qld) if they were not adequately provided for. See Who Can Challenge a Will in Queensland .
• Does gifting my assets away stop a claim? It can, since Queensland does not have New South Wales style notional estate legislation, but it carries Centrelink, control, and reversal risks. See our guide on Avoiding Probate and Family Provision Claims .
• What is the difference between a discretionary trust and a testamentary trust? A discretionary trust operates during your life and needs annual accounting. A testamentary trust is created by your will and only starts on death. See Testamentary Discretionary Trusts .
• How do I find a will if I don’t know which solicitor holds it? There is no central will register in Queensland. Contact the Public Trustee, try a lost will search service, and consider a newspaper notice. See our FAQ, How Do I Find a Lost Will in Queensland?
• What happens if no will can be found? The estate is distributed under the intestacy rules, generally favouring a spouse first, then children, then parents, in a fixed order that may not reflect the deceased’s actual wishes. See What Happens If You Die Without a Will in Queensland?
• Can I dispute a car repair through QCAT? Yes, as a Consumer Trader Dispute in QCAT’s minor civil disputes jurisdiction. See Can I Take a Faulty Car Repair Dispute to QCAT? or our Complete Guide to QCAT .

Key Takeaways

1. Probate Is Not the Enemy: It is simply the court confirming your will is valid and your executor has authority. It is usually required for sole-name real estate and larger bank balances.
2. A Will Alone Does Not Guarantee Your Wishes: Under the Succession Act 1981 (Qld), eligible people can bring a family provision claim regardless of what your will says.
3. Every Planning Tool Has a Trade-Off: Gifting, joint ownership, trusts, and life interests can each move assets outside the estate, but each also creates tax, Centrelink, control, or reversal risks.
4. Document Your Reasoning: A clear statement of wishes, a properly witnessed will, and a doctor’s capacity letter where relevant make a will significantly harder to successfully challenge.
5. No Central Will Register Exists in Queensland: If a will cannot be located, contact the Public Trustee and consider a lost will search service before assuming there is no will at all.
6. QCAT Handles Small Consumer Disputes: A faulty repair dispute, such as a car service error, can be resolved through a Consumer Trader Dispute application without needing to go to court.

Annotated Transcript

📋 This transcript has been lightly edited for clarity. Legal commentary and internal links have been added to assist readers. Caller names are as broadcast.

Opening: The Number One Question

⚖️ Topic: Why wills, probate, and family provision claims remain the most common enquiry at Bell and Senior Lawyers. Relevant law: Succession Act 1981 (Qld)

Colin: After 20 odd episodes, the number one question walking through the door still comes back to wills, probate, and family provision claims.

Andrew: Absolutely. I want to explain the normal advice I give on air, and why I don’t hand out blanket recommendations for stopping someone from claiming on an estate.

📎 See also: Avoiding Probate and Family Provision Claims in Queensland | Legal Matters Ep 5: Wills, Probate & Defamation

What Is Probate

⚖️ Topic: Probate defined in plain terms. Relevant law: Succession Act 1981 (Qld) ; Uniform Civil Procedure Rules 1999 (Qld) Ch 15

Colin: What’s probate?

Andrew: Probate sounds scary but it isn’t. It is the court formally endorsing that a submitted will is valid, and confirming the executor has legal authority to deal with the estate. Without probate, banks and land titles will not release assets.

📎 See also: When is a Grant of Probate Required? | Probate Process QLD | Legal Matters Ep 10: Off-the-Plan Risks & Probate

Why Wills Are Challenged

⚖️ Topic: Grounds for challenging validity, and the separate concept of family provision claims. Relevant law: Succession Act 1981 (Qld)

Colin: I write a will, so what I want should logically happen. But that isn’t the case?

Andrew: Not in Queensland, not in 2026. Under the Succession Act 1981 (Qld), spouses, de facto partners, children, step-children, grandchildren and dependants who could expect to rely on the estate may bring a claim, even people you specifically tried to exclude.

A will can be challenged as invalid for improper execution, lack of capacity, undue influence, or competing wills. Separately, a family provision claim accepts the will may be valid but argues adequate provision was not made.

📎 See also: Who Can Challenge a Will in Queensland | Testamentary Capacity and Dementia in Queensland | Who Can Bring a Family Provision Claim

Keeping “Jimmy” Out of the Estate

⚖️ Topic: Strategies people ask about to prevent an estranged relative from claiming.

Colin: Say Jimmy hasn’t had a relationship with his parents in years. They want to leave everything to people who have actually looked after them.

Andrew: The simplest option is to give everything away while alive. If it’s not in your estate when you die, in Queensland it generally can’t be subject to a family provision claim, unlike New South Wales, which has notional estate laws.

Andrew: Joint ownership is another common approach. Under joint tenancy, the asset automatically passes to the survivor on death, bypassing the will entirely and requiring only a death certificate.

📎 See also: Avoiding Probate and Family Provision Claims in Queensland | Tenants in Common vs Joint Tenants

Superannuation, Trusts and Life Interests

⚖️ Topic: Binding death nominations, discretionary trusts, testamentary trusts, and life interests. Relevant law: Superannuation Industry (Supervision) Act 1993 (Cth) ; Succession Act 1981 (Qld)

Andrew: Superannuation typically doesn’t form part of the estate. A binding death nomination allows the fund trustee to pay benefits directly to nominated people, bypassing the estate.

There are two trusts people confuse. A discretionary trust is set up while you’re alive, with a trustee deciding distributions among beneficiaries, common for asset protection and family businesses. A testamentary trust is written into your will and only exists once you die, holding assets rather than handing them over outright.

Andrew: A life interest gives someone the right to remain in a property for life without owning it. It suits families confident in a generational arrangement, such as farms, but creates problems around maintenance, borrowing, and what happens if the life tenant needs aged care.

📎 See also: Testamentary Discretionary Trusts | Life Interest vs Right to Reside | Does Superannuation Form Part of My Estate? | Legal Matters Ep 4: Blended Families

Documentation and DIY Will Risks

⚖️ Topic: Witnessing requirements, multiple wills, and capacity evidence.

Andrew: You cannot online witness a will in Queensland. Everyone witnessing must be in the same room, and they cannot be a beneficiary, or they write themselves out of the will. If there is any question over capacity, get a letter from the person’s doctor and have a witness who can also test their understanding at the time of signing.

📎 See also: Who Can Challenge a Will in Queensland | Testamentary Capacity and Dementia in Queensland

Caller 1, Suzanne: Finding a Lost Will

👩 Topic: Locating a deceased relative’s will with no known solicitor and no access to her phone. Relevant law: Succession Act 1981 (Qld) (intestacy rules); Public Trustee Act 1978 (Qld)

Suzanne: My sister recently passed away. We know she made a will last year but we don’t know who she made it with.

Andrew: There is no central register of wills in Queensland. Contact the Public Trustee, try a lost will search service, and consider a newspaper notice. Anyone who can expect to inherit is entitled to request a copy from a solicitor holding it, once the person has died.

Andrew: If no will can be found, the estate is treated as intestate, and someone can apply to be administrator. Distribution then follows the intestacy rules, generally favouring a partner, then children in equal shares, then parents, in a cascading order that may not match her actual wishes.

📎 See also: How Do I Find a Lost Will in Queensland? | What Happens If You Die Without a Will in Queensland? | Probate Process QLD | Executor Duties Explained

Caller 2, Ray: QCAT Consumer Trader Dispute

🚗 Topic: A dispute over a faulty car service after seven years of ongoing custom. Relevant law: Queensland Civil and Administrative Tribunal Act 2009 (Qld) ; Australian Consumer Law

Ray: I’ve had my car serviced at the same business for years. The last service had an error that cost me thousands, and they’re disputing that they made it.

Andrew: You could bring a Consumer Trader Dispute through QCAT, one of the minor civil dispute options. There’s a filing fee, hardship applications are available, and you would put your case that the trader didn’t use appropriate skill and care. If they can’t persuade the member otherwise, you would get an order for the overcharged amount.

📎 See also: Can I Take a Faulty Car Repair Dispute to QCAT? | The Complete Guide to QCAT | Legal Matters Ep 7: QCAT and Disputes | Legal Matters Ep 8: QCAT Guardianship and Neighbour Disputes

Closing: Why This Isn’t General Advice

Andrew: Cost and compliance, Centrelink implications, reduced borrowing capacity, a later change of mind, and living longer than expected are all reasons none of these strategies work as blanket advice. My standard advice is to document well, use a professional for your will, and only look at the more radical options once we understand your full circumstances.

Colin: Andrew Bell joins us every Tuesday morning at nine o’clock. Next week, the discussion returns to family law.

Disclaimer: This is an edited and annotated transcript of the live radio broadcast. Legal commentary and links to legislation and FAQs have been added for educational purposes and do not constitute legal advice. To hear the full unedited version, please listen to the audio file provided at the top of the page.

Related Episodes

• Legal Matters Ep 5: Wills, Probate & Defamation
• Legal Matters Ep 10: Off-the-Plan Risks & Probate
• Legal Matters Ep 4: Blended Families
• Legal Matters Ep 7: QCAT and Disputes
• Legal Matters Ep 21: De Facto, Married Property

Key Topics

• De facto vs married property rights, confirming the two frameworks have been near-identical since 2009, aside from differing time limits to apply. See De Facto Relationships in Queensland .
• Binding financial agreements (BFAs), what makes a “prenup” enforceable, and the five grounds a court can use to set one aside. See What Makes a Binding Financial Agreement Enforceable? .
• The four-step property division process, disclosure, contributions, future needs, and the final just-and-equitable check.
• New AUSTRAC rules for property sales (effective 1 July 2026), identity and source-of-funds verification now required for sellers, agents, and every auction bidder. See New AUSTRAC Anti-Money Laundering Rules for Real Estate .
• Form 2 property disclosure, why skipping it can let a buyer walk away from a signed contract.

Listener FAQ Highlighted In This Episode

• Can a club raise fees partway through a membership year? Generally yes, if a properly constituted committee approved it, members can request the constitution and meeting minutes to check it was done correctly. See Can a Club Increase Membership Fees Mid-Year? .
• What’s the cheapest way to protect a song before sending it to a publisher? Copyright vests automatically on creation in Australia, but sealing signed, dated lyrics in a letter posted to yourself creates useful evidence if authorship is ever disputed. See How to Protect a Song’s Copyright Before Sending It to a Publisher .
• Do I really need a Form 2 and AUSTRAC checks to auction my home? Yes, skipping the Form 2 disclosure lets a buyer cancel after the fact, and from 1 July 2026 every bidder must verify identity and source of funds before bidding. See New AUSTRAC Rules for Real Estate .
• Can my late daughter’s de facto partner have me removed from the house I live in? Possibly, if they inherit the property outright, though a life estate or similar interest could be argued in response, this scenario needs individual legal advice.
• Can I get out of an agent’s marketing-loan clause that blocks me from renting my unsold house? A term stopping you from earning any income to repay the loan may be an unfair contract term worth challenging with the agent or Fair Trading. See Can a Real Estate Agent Block Me From Renting My Unsold Property? .
• What’s the right process if a family member needs care but has no power of attorney? You apply to QCAT for guardianship, supported by medical evidence. See How to Apply for QCAT Guardianship in Queensland .

Listen to the full discussion above.

Key Takeaways

1. De facto and married property division are almost identical since 2009, the main difference is the application time limit, not the process.
2. A binding financial agreement only holds up with full disclosure and independent legal advice on both sides.
3. Property division follows four clear steps: identify the pool, assess contributions, weigh future needs, then check fairness.
4. New AUSTRAC rules effective 1 July 2026 affect every party in a property sale, including auction bidders, not just the seller.
5. Skipping the Form 2 disclosure is risky, a buyer can pull out of a signed contract if it’s missing or wrong.
6. Not-for-profit clubs can usually change fees mid-year if their constitution allows it and the decision was properly made.
7. A de facto partner has standing to claim on a deceased partner’s estate, which can affect family members still living in a shared home.

Next week: the Family Law series continues with real-world property settlement scenarios.

Annotated Transcript

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This program provides general legal information only. It’s not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

[Colin]: Welcome to the studio, welcome to the microphone Andrew Bell from Bell and Senior Lawyers.

[Andrew]: Thanks for having me back, Colin.

[Colin]: We will be continuing our conversation on family law that we started last week, but this is your program, your opportunity to get a little bit of free legal advice live on air. 07 5520 8888 is the number.

[Andrew]: We had a great week last week. We covered what separation is, even living under one roof, you’re no longer living as a couple, and that works for married and de facto couples. After 12 months of separation you can get divorced, and after that you can do your property separation, though if you’re getting divorced you can actually do it before that. Anytime after you’re separated you can apply for a property separation, and you’ve got two years if you’re de facto. We also covered property pools, everything the couple owns in their own name or jointly.

Caller 1, Ross | Club Membership Fee Increase

Legislation: Association/club constitution and governance rules (general law of unincorporated associations)

[Colin]: Very good morning to Ross. Ross, ask your question of Andrew.

[Ross]: A group of us joined a local bowls club in January. Full membership was $140, with an extra fee only if playing in competitions. A couple of weeks ago a new president was elected and decided everyone now has to pay an extra $5 per game, on top of membership.

[Andrew]: Was there an AGM where that president was elected?

[Ross]: I’m not quite sure. He just introduced himself as the new president and said they’re introducing these fees.

[Andrew]: Normally clubs operate on a financial year with an AGM electing the management committee, who have the power to set fees for the next year, usually tabled at a committee meeting. There will be a club constitution setting out those powers, and as a member you’re entitled to a copy of it and the minutes of any relevant meetings. If they’ve done it properly, I don’t think there’s much you can do to challenge it, but I’d ask the secretary what grounds they’re relying on to introduce the fee.

[Ross]: Even though it’s halfway through the calendar year, and we joined in January?

[Andrew]: I’d definitely be asking the basis for increasing fees mid-year, because there may be an extraordinary reason, but they probably do have the power to do it.

[Colin]: The basic preface, Ross, is that the board manages the club on behalf of the membership. You have the right to see the constitution and examine decisions, but they are managing it on behalf.

[Andrew]: Yeah, it’s not like a traditional contract.

📎 See also: Can a Club Increase Membership Fees Mid-Year?

Caller 1 (continued), Ross | Protecting Song Copyright

Legislation: Copyright Act 1968 (Cth) , copyright vests automatically on creation

[Ross]: I’ve written a song, what’s the most economical or safest way to send it to a publisher or singer and still protect my rights if they record it?

[Andrew]: In Australia copyright automatically vests at the moment of creation. If you’re the author, you already own the copyright and don’t need to register it.

[Colin]: We get this question often. The cheapest way to protect your rights and avoid an argument over who wrote it is to print out the lyrics, sign and date them, seal them in a letter, and post it to yourself. Don’t open it, keep it in a safe. If there’s ever a dispute, you produce the sealed letter to a solicitor as evidence.

[Andrew]: Absolutely, great advice.

📎 See also: How to Protect a Song’s Copyright Before Sending It to a Publisher

Segment, Are the Rules the Same for Married and De Facto Couples?

Topic: De facto vs married property division Legislation: Family Law Act 1975 (Cth) , de facto provisions added 2009

[Colin]: Are the rules the same for married and de facto couples?

[Andrew]: In the past, each state had different rules about de facto relationships. But since 2009, the property division framework is largely identical for both, there are some different sections under the Act, and different timelines: two years after separation for de facto couples to separate property. Practically, all of the same law applies whether you end a de facto or married relationship. A de facto relationship is a committed domestic relationship for at least two years.

[Colin]: So one relationship has documentation showing you’re married, and the other is more a statement that you’ve been together as partners. Do people ever argue about whether it existed at all?

[Andrew]: Absolutely, it’s very common. People might argue the relationship ended earlier than claimed, or that they never intended to be in a relationship at all. Separate houses don’t rule out a de facto relationship, and children can be relevant too. One party wanting a bigger share may allege a de facto relationship existed while the other denies it, so the court weighs witness statements, bank statements, and other evidence. It’s much clearer with marriage because of the certificate.

[Colin]: BFAs, binding financial agreements, most people call these prenups. What are they and when do they hold up?

[Andrew]: A binding financial agreement is a contract between two parties setting out how property will be divided if a relationship ends. It can be made before, during, or after a relationship. To be binding, both sides need independent legal advice and an independent lawyer’s certificate confirming it was explained to them and they weren’t under duress, plus full and frank financial disclosure of each side’s financial position. If disclosure was inadequate, say, undisclosed wealth or property, the agreement can be challenged afterwards. Most of the time a BFA will stand; they’re actually pretty good law in Australia. Courts will set one aside for fraud or non-disclosure of assets, duress, unconscionable conduct (where someone was tricked), or where circumstances changed so significantly that enforcing it would be unjust, commonly, children arriving after signing that weren’t contemplated in the agreement.

[Colin]: Sounds quite different to what we see on television.

[Andrew]: It is, we’ve got no-fault divorce now, so you don’t need to allege wrongdoing, just work out what property exists and how it gets divided.

📎 See also: What Makes a Binding Financial Agreement Enforceable?

Caller 2, Rod | Auction Disclosure & AUSTRAC Rules

Legislation: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), AUSTRAC obligations extended to real estate agents, accountants and lawyers effective 1 July 2026 (“Tranche 2” reforms); Form 2 property disclosure requirements (effective August 2025)

[Colin]: Very good morning to Rod. Rod, ask your question of Andrew.

[Rod]: I met with a real estate agent about auctioning our home, and they said I need a Form 2, bankruptcy checks, money laundering checks, building and pest, I said I don’t want to do all that, buyer beware, they can do their own homework. What are the consequences if I don’t?

[Andrew]: Anti-money laundering laws came in last week applying to real estate agents, accountants, and lawyers. They can be fined if they don’t verify the source of funds and who they’re dealing with, so you’ll need to verify your identity and possibly provide bank information, if you don’t, they may not take you on, because they could be held liable by AUSTRAC. The Form 2 is a disclosure that came in in August last year, given to prospective buyers detailing what’s happening with the property. If you don’t have one, or it’s incorrect, buyers can cancel the purchase, so you could hold the auction, sell the property, then lose the sale and still owe the agent’s commission because you lacked a Form 2. I’d advise doing the Form 2. Building and pest before auction isn’t strictly mandatory as far as I’m aware, but it’s usual practice so buyers are fully informed and can’t later claim they wouldn’t have bid had they known. As of this week, every auction bidder also needs to confirm identity and source of funds before the auctioneer lets them bid.

[Rod]: So the old days of a buyer doing their own building and pest in good faith no longer exist?

[Andrew]: Building and pest you could probably still handle that way if you make the property available for inspection before the auction, though I’m not 100% certain. But the Form 2 I’d definitely recommend, and you won’t get away from the AUSTRAC anti-money-laundering checks.

📎 See also: New AUSTRAC Anti-Money Laundering Rules for Real Estate | Property, Form 2 & Strata

Caller 3, Mary | De Facto Partner’s Claim on a Shared Home

Legislation: Succession Act 1981 (Qld) Pt 4 (Family Provision), de facto partner standing

[Colin]: Very good morning to Mary. Mary, ask your question of Andrew.

[Mary]: My 95-year-old friend’s wife died 15 years ago, and his daughter, who he’d moved in with, died recently, in a car accident. She had a de facto partner. What happens to the property? Did the de facto partner get any hold over it?

[Andrew]: How long were they in the de facto relationship?

[Mary]: More than two years, I believe.

[Andrew]: If there was a will, it would be distributed according to the will unless someone challenged it. People who could challenge on the basis they needed support are children, parents, de facto or married partners, and anyone financially dependent on the deceased. If the de facto partner needed financial support and wasn’t adequately cared for under the will, they’d have grounds to challenge it.

[Mary]: Even though her father is 95 and dependent on her?

(after clarifying the family relationships)

[Andrew]: So your 95-year-old friend is living in the house with his daughter, who has died, and she had a de facto partner. The de facto partner can claim on the daughter’s estate and may receive some or all of it. If they become the valid owner of the property, they may be able to ask your friend to leave, though depending on how it was purchased, he may be able to argue he has a life estate and challenge that. This is a complicated scenario, and I’d suggest they get independent advice.

📎 See also: Wills and Estates

Segment, The Four-Step Property Division Process

Topic: How courts actually divide property Legislation: Family Law Act 1975 (Cth) s 79, s 90SM

[Colin]: Walk us through what the court actually does when it divides property.

[Andrew]: First, they identify the property pool, each party discloses every asset, liability, bank statement, and property statement, with penalties for non-compliance. Family court proceedings are private, and it’s an offence to publish what’s gone on, but full financial disclosure is required. Second, the court looks at contributions, financial assets brought into or created during the relationship, non-financial contributions like building a house, and who took on most of the parenting or caring duties, then works out a split reflecting those contributions. Third, they look at future needs: education, earning capacity, age, and health issues, to ensure no one is left destitute while the other lives comfortably. Finally, they check whether the outcome is just and equitable, fair to both parties. Courts won’t make an order unless the split is clear and they’re satisfied it’s not unjust.

[Colin]: Seems fairly clear, though I’m sure it gets muddied once you’re in the middle of it.

[Andrew]: We’ll go through some scenarios next week, Colin.

📎 See also: Understanding the Family Law Property Pool | Property Settlement Process

Caller 4, Amanda | Unfair Marketing-Loan Clause

Legislation: Australian Consumer Law (Cth) Sch 2, unfair contract terms provisions

[Colin]: Good morning to Amanda. Amanda, ask your question of Andrew.

[Amanda]: I’m selling a property in South Australia. The agent had me sign a pay-later loan for $5,000 in marketing costs, payable at settlement, but the property may not sell, and I can’t afford to pay it myself. The contract also says I can’t rent the property until the loan is repaid.

[Andrew]: That’s a strange arrangement, often marketing costs are simply deferred to settlement. If you’ve got an exclusive agency, they may restrict renting while advertising is underway, but blocking you from renting once it’s no longer for sale, with no other way to repay them, doesn’t sound right. There’s been discussion in recent years about unconscionable and unfair contract terms, which can bar enforcement of unfair clauses. I’d first tell them in writing that you intend to take the property off the market and rent it to repay the loan, and see their response. If they refuse, ask why, and consider Fair Trading, the ACCC, or a lawyer.

[Amanda]: They also have security over my property until the debt is repaid.

[Andrew]: That would be correct, if it’s not repaid, they could eventually sell your property to redeem it, which ironically is what you wanted in the first place.

[Amanda]: If I end the exclusive period early, the amount is due within 14 days.

[Andrew]: Yes, ending the exclusive agency early triggers early repayment, so I wouldn’t recommend ending it early. But once the exclusive period naturally expires without a sale, it seems very unfair for them to block your only way of repaying them.

📎 See also: Can a Real Estate Agent Block Me From Renting My Unsold Property?

Caller 5, Joan | Guardianship Without Power of Attorney

Legislation: Guardianship and Administration Act 2000 (Qld) ; QCAT guardianship applications

[Colin]: Good morning to Joan. Joan, ask your question of Andrew.

[Joan]: My young brother needs to go into care. He doesn’t have a power of attorney, and I’m his next of kin. Can I answer things on his behalf?

[Andrew]: You could answer things, but you couldn’t enter legal agreements on his behalf without a power of attorney or guardianship order. Does he have capacity to sign a power of attorney himself?

[Joan]: No, I don’t think he would.

[Andrew]: Then the proper process is to apply to QCAT to be his guardian, with a copy of his medical records, and explain that he needs someone to make these decisions for him. A fee waiver may be available, and the QCAT website has guidance on applying.

[Joan]: Even though he’s been in hospital for a month without us knowing?

[Andrew]: You can ask things, but without a power of attorney or guardianship order it carries no legal force, the hospital can say yes or no, and if you disagree with their decisions, there’s nothing you can do about it unless you hold that authority.

📎 See also: How to Apply for QCAT Guardianship in Queensland | QCAT and Disputes

[Colin]: A great little program, some great information, Andrew. Thank you for your company again this morning.

[Andrew]: Thank you, Colin. It’s great to have the audience participation, I’m really enjoying the varied questions.

Announcer: You’ve been listening to Legal Matters, proudly brought to you by our trusted sponsor Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programs and all relevant resources will be available for you to replay or download on bellsenior.com.au and 4crb.com.

Related Episodes

• Episode 20: Property Settlement, Contributions & Will Disputes , the property pool, contributions, and family provision standing
• Episode 19: New E-Bike Laws & Family Law Basics , the launch of this Family Law series
• Episode 9: Property, Form 2 & Strata , property disclosure obligations in Queensland
• Episode 3: Wills and Estates , probate, executor duties and challenging a will
• Episode 7: QCAT and Disputes , resolving minor civil disputes and guardianship applications

Footnotes

Key Topics

• Defining separation, why moving out is no longer required, and how “separation under one roof” affects the property settlement and divorce timeline.
• Time limits recap, 12 months from divorce for married couples, 24 months from separation for de facto couples. See De Facto Relationships in Queensland .
• The property pool, what assets and debts are included, and why superannuation type makes no difference. See Understanding the Family Law Property Pool .
• Valuation timing, why the pool is valued at trial or settlement, not separation, and how this can shift outcomes by hundreds of thousands of dollars.
• Contributions, the three legal categories: direct financial, non-financial, and homemaker/parenting contributions. See Understanding the Family Law Property Pool .
• Family provision claims, who has default standing to challenge a will, including the difference between siblings and stepchildren. See Who Can Challenge a Will in Queensland? .

Listener FAQ Highlighted In This Episode

• Can a sister challenge her living brother’s will just because she disagrees with it? Not by default, siblings must prove dependency or a reasonable expectation of inheriting, which is difficult without evidence of financial support. See Who Can Challenge a Will in Queensland? .
• Who owns a trailer when the registration says one thing and the current holder says another? The last registered owner with a lodged police report is generally treated as the presumptive owner, and QCAT can resolve the dispute for a low application fee. See QCAT and Disputes .
• Does a life insurance policy someone else has been paying for get caught up in their divorce? Yes, if it has a cash or surrender value, it forms part of the property pool regardless of who has funded the premiums, though contribution arguments can affect the final split. See Understanding the Family Law Property Pool .
• Can stepchildren who haven’t been supported for 30 years still contest a will? They have default standing to try, but establishing a reasonable expectation of inheriting becomes very difficult without a supportive relationship on the record. See Who Can Challenge a Will in Queensland? .

Listen to the full discussion above.

Key Takeaways

1. Separation does not require moving out. Couples can be legally separated “under one roof” while still sharing a home.
2. Watch your time limits closely, 12 months from divorce for married couples, 24 months from separation for de facto couples, or you’ll need the court’s permission to proceed.
3. The property pool is valued at trial or settlement, not separation, delays can significantly change what each party receives.
4. Non-financial and parenting contributions carry real weight and are often treated as equalising a working partner’s financial contributions.
5. Siblings generally cannot challenge a will by default, only dependants, parents, children, and those with a reasonable expectation of inheriting have standing.
6. Stepchildren have default standing to contest a will, but must still prove they were not adequately provided for.
7. Register your valuables and keep the paperwork, presumptive ownership disputes are far easier to resolve with a lodged police report and clear registration history.

Next week: the Family Law series continues, moving from contributions into how courts actually divide the property pool between parties.

Annotated Transcript

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This program provides general legal information only. It’s not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

[Colin]: Well, welcome to the microphone. Welcome to the studio, Andrew Bell from Bell and Senior Lawyers.

[Andrew]: Great to be back, Colin.

[Colin]: It is. Well, we’ve been discussing over the past couple of weeks certain topics. We moved into family law and really only just started family law last week, so we thought we’d continue that conversation on this morning. But first and foremost, this is your radio show, it is your opportunity to get a bit of free legal advice live on air right here, right now. 07 5520 8888 is the number.

[Andrew]: Oh, it was good. Some unpredictable weather, some interesting clients, and school holidays. I have five girls at home, so they’re fun to be around, but they’re very, very busy.

Segment, What Is Separation in Law?

Topic: Defining separation and property settlement time limits Legislation: Family Law Act 1975 (Cth) s 4AA, s 44

[Colin]: Alright, moving into family law this morning, and we might start with that basic question: What is separation in law?

[Andrew]: Okay, well separation is where one or both parties intend to end the relationship and they act on it. Separation is different to what people think it is, where people have to have moved out of home; that’s no longer the case. You don’t need to move out. You can be separated under one roof, so two people in the same house but no longer acting as a couple. So, if you’re married, you need 12 months of separation before you can apply for divorce. And if you are married, if you want to do a property settlement, which is what we’re talking about today, that must be filed within 12 months of the divorce being final. But it can be applied from any time once you’re separated. And for de facto couples, once you’re separated, because there is no divorce, you’ve got two years from the date of separation. It’s very important though to watch those dates because if you miss them, you’ll need the court’s permission to proceed with any sort of property settlement.

[Colin]: So if you miss them, you mean you exceed those time frames?

[Andrew]: Exactly. If you’ve been separated under one roof for two and a half years and you decide you want to sell houses and split property etc., it’s much more difficult to do than doing it within the two-year frame if you’re a de facto, or one year after the divorce.

📎 See also: De Facto Relationships in Queensland

Segment, What Goes Into the Property Pool?

Topic: Assets, debts, and valuation timing Legislation: Family Law Act 1975 (Cth) Pt VIII, Pt VIIIAB

[Colin]: Alright, moving on to the property pool. What goes in it?

[Andrew]: Okay, so for those not familiar with property separations, what we are separating is what’s called the property pool. So the property pool is everything owned by both parties to the relationship. So real estate, bank accounts… one we had a question about last week: superannuation doesn’t matter if it’s in a self-managed super or a normal super fund. Shares, businesses, vehicles, cryptocurrency, interests in trusts, but also liabilities, debts, personal loans, credit card debt gets taken off the property pool. So, the process for de facto and married couples is essentially identical. And one important point is the pool is not valued at the time of separation, like a lot of people think it is; it’s at the date of the trial or at the date of settlement. And that gap can make a big difference where the property market going up or down could be worth hundreds of thousands of dollars.

[Colin]: Yeah, okay. And you can also now see some of the issues that we hear about out there in the pub testing arenas. So I suppose, as you say, that one clarification, it’s not valued at the time of separation, it’s valued at the time that you go to court and have it mediated or worked out, means that if someone wants to do the wrong thing, they can spend a lot of money in the meantime.

[Andrew]: Absolutely. They can siphon it out, and there used to be things called add-backs, where people removing money out of the pool would be counted against them, but the law changed last year on that and it’s harder to get add-backs in. The court has lots of cases and they just want to separate things very quickly and easily. So, what is the date of the property at the time? Who contributed? What are the future needs? And then adjust accordingly.

[Colin]: In between…

[Andrew]: In between, that goes into the property pool.

📎 See also: Understanding the Family Law Property Pool

Caller 1, Ann | Sibling Standing to Challenge a Will

Legislation: Succession Act 1981 (Qld) Pt 4 (Family Provision)

[Colin]: And we have Ann on the phone for you right now, Andrew. So very good morning to Ann. Ann, ask your question of Andrew.

[Ann]: Yeah, Andrew, um, if you’ve got a sibling who has no spouse, no children, but a number of siblings, and one sibling is not happy with what his will is. Can that sibling challenge the will? Or do they not have standing?

[Andrew]: Okay, well when you say which will, who has died? Whose will are we talking about?

[Ann]: Not dead yet, but… it’s a brother’s will, and there are three sisters and one sister is not happy how he wrote his will years ago, and just wanting to know whether they would have standing because they are siblings.

[Andrew]: Okay, so in Queensland, for challenging the validity of a will in terms of what we would call a family provision claim, typically the people who default have standing are the people who lived with the deceased, also their parents and their children. Siblings by default don’t exist in that framework. However, there’s another test that says if they can reasonably expect to inherit, they can also claim. So if there have been, I don’t know, if they’re relying on it, if their brother has been supporting them, if there’s a number of other factors the court would take into account about why that person should be looked after by the brother, then they may have standing. But by default, they wouldn’t have standing to sue.

[Ann]: Parents are dead. Each sibling gets a share of his will. He’s in supported living, so he’s not supported any of us during his life.

[Andrew]: Well, I wouldn’t think on the face of things that they would have any standing to challenge. So under the rules of intestacy, if he didn’t have a will, then it would be split up amongst the remaining siblings if there’s no parents or children. However, they don’t necessarily have a default right, so they would have to establish that in the court before they could make any challenges. And if he’s never supported them, I think that it would be very difficult for them to establish why they should inherit or why they should be unhappy with what they’ve been given.

📎 See also: Who Can Challenge a Will in Queensland?

Caller 2, Irene | Stolen Trailer Ownership Dispute

Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[Colin]: We might move now on to, I believe it is Irene. Irene, are you there? Can you ask your question of Andrew?

[Irene]: I’m here. Um, look, this is probably a bit off base, but last year I had a trailer stolen from my son’s house. Didn’t hear anything until May this year, and my son was driving past and spotted the trailer. So I rang the police and everything, but now the people that had the trailer are saying that it’s their trailer. So I’m, the trailer’s been, it’s in the holding yard at the moment, but I’ve been to the police on a number of occasions but still nothing.

[Andrew]: Okay, who is it registered to?

[Irene]: Me.

[Andrew]: Um, and what have the police said when you’ve asked if they can release it to you?

[Irene]: Um, well, these people that have got the trailer, well, that say it’s their trailer now, they put different plates on it, not mine. They’ve taken my plates off and put different plates on, but the plates that are on there now aren’t registered. So these people that are saying it’s their trailer now, they want to take it to Civil Court. But what I’m thinking, like I’ve got all the paperwork and everything when I purchased it, but they couldn’t find a serial number on it.

[Andrew]: Okay, so I understand the problem that you’ve got, but I mean this is what we have courts to solve disputes like this. If you did go to QCAT, the only cost that you’d be facing would be whoever applies would have an application fee, and they could definitively determine who owns the trailer or who should be compensated. However, if you were the last registered owner with the serial number on the trailer, it would be presumptive that it was yours. Did you lodge a police report at the time that it went missing?

[Irene]: Yes, I lodged a police report, but I didn’t hear anything until…

[Andrew]: Well I’m very surprised that the police won’t release it to you to let you register it if you lodged a police report that said it was stolen and it was registered at the time. So I’d be very interested in getting something in writing from police about why they’re refusing to release it to you.

[Irene]: Well apparently, when they found it, they couldn’t find, like I’ve got all the paperwork and everything when I purchased it, but they couldn’t find a serial number on it.

[Andrew]: Okay, well that’s a complication because if there’s no serial number, how do you prove that it is yours?

[Irene]: Oh well I’ve got photos and everything. I can give it detail to detail what’s on the trailer.

[Andrew]: Well I think your best bet is going to be ask police in writing what’s going on. Ask them, if they refuse to release it to you, ask them not to release it pending a claim, and then I would be taking it to QCAT or the Magistrates Court and getting them to decide who owns it based on the evidence that you can provide.

[Colin]: And I think, Irene, if you’ve proven that you’ve registered a trailer in the past, the compliance plate has been removed, they can’t show that they have registered it in the past. I think you might very well find that they’ll rule in favor of you.

📎 See also: QCAT and Disputes

Segment, What Counts as a Contribution?

Topic: Financial, non-financial and homemaker contributions Legislation: Family Law Act 1975 (Cth) s 79, s 90SM

[Colin]: Moving on on our family law discussion: What counts as a contribution?

[Andrew]: Okay, so the reason why we’re talking about contributions, before we talked about the asset pool, what do people actually own, contributions is how did what got into that asset pool get into the asset pool. And so the court has come up over time with three different categories of contributions. One is direct financial contributions, which is very simple. Someone directly puts money into the bank account or buys one of the assets with cash that they’ve got through gifts, inheritances, or working. Then there’s non-financial contributions, and this is what a lot of family-type matters come down to is, if you renovated the family home with your own labor and it’s increased the value, if you’ve managed a household with children and not worked, if you’ve looked after or cared for elderly parents or children… the court takes a global view over the relationship and then looks at what those non-financial and parenting contributions are. And then after that, the role in a property settlement, a court will look at the global view and look at a percentage of who’s actually contributed. Now, we often get a 20-year marriage that’s broken down with children, and typically the male has worked and the female may have worked or looked after the children for some or all of that time, and often the parenting contributions are seen to equal out the financial contributions from working. So, that’s often then used as the basis for a property division, which we will cover later.

📎 See also: Understanding the Family Law Property Pool

Caller 3, James | Life Insurance Policy in a Looming Divorce

Legislation: Family Law Act 1975 (Cth) s 79

[Colin]: Very good morning to James. James, ask your question of Andrew.

[James]: Andrew, I paid for an insurance policy for my son as a child. He’s now a middle-aged adult… I’ve been paying for 20 or 30 years or more than that on this insurance policy, and I’ve been keeping it up to date. His marriage looks like it’s going to go to pieces, and I’m wondering what happens to this insurance policy, his insurance policy, even though I’ve paid all the money, if there’s a divorce.

[Andrew]: Um, if there’s a divorce and it’s a financial asset that could potentially be sold or cashed in and it has an actual monetary value, then it would typically get valued and be part of the property pool, and a division would be made taking that into account. However, looking at the contributions and who contributed to it and why it was contributed is something that you would be arguing about why it’s got nothing to do with the wife.

[James]: Could he do a binding death nomination to his daughter rather than his wife?

[Andrew]: Um, if it’s superannuation he definitely could… but this is a life insurance policy, he can name whoever would be the recipient on a life insurance policy. He can change that at any time. It doesn’t have to be a wife, it could be you.

[James]: Ah, there you go.

[Andrew]: Well, the beneficiary normally doesn’t have standing. It’s normally the person who owns it who would have the standing if they want to cash out the insurance policy. But yes, he could change who’s nominated to receive, in the event of his death under the insurance policy, at any time.

📎 See also: Understanding the Family Law Property Pool

Caller 4, Janet | Stepchildren Contesting a 90-Year-Old’s Will

Legislation: Succession Act 1981 (Qld) Pt 4 (Family Provision)

[Colin]: Very good morning to Janet. Janet, ask your question of Andrew.

[Janet]: I’m calling on behalf of my auntie. She is nearly 90 and I am her carer. I have been her carer for over seven years, close to seven years now. Now, her situation is she has been married, her husband died in 1988, and her husband did have two adult children at the time that they married. What’s her situation if she passes, are they able to contest the will?

[Andrew]: Are you saying they’re not in the will at all or they’re not happy…

[Janet]: They’re not, her husband’s adult children are not in the will.

[Andrew]: But they weren’t her children? Okay, so stepchildren normally have standing to sue in a family provision claim if they could reasonably expect to inherit under the will. However, again, you’d look at then at the relationship that they’ve had since 1988. Has she been supporting them? Would they reasonably expect to inherit? So while they may be able to challenge the will, they would then have to establish in court why that they weren’t adequately provided for and why they reasonably should have inherited. So just because on paper they’re their children, if she’s not been supporting them for the best part of 30 years, I can’t see why they’d have a reasonable expectation that they’d be taken care of. However, if the husband had substantial assets that all went to her, then they may be able to make that claim. So it would really depend on the specifics, and as I said, stepchildren, they typically would have default standing to sue.

[Janet]: And what about her nieces? She has nieces in England that she hasn’t seen for 90 years…

[Andrew]: Okay, well I would also suggest that she should write a letter explaining the decisions she’s made and why she’s made them, because the court will take her views into account if there is any challenge going on.

📎 See also: Who Can Challenge a Will in Queensland?

[Colin]: Well, we’re getting some curly ones this morning from family law to estate planning to criminal law, I suppose.

[Andrew]: That’s great, I love the community ringing in. This is what I enjoy.

Announcer: You’ve been listening to Legal Matters proudly brought to you by our trusted sponsor Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programs and all relevant resources will be available for you to replay or download on bellsenior.com.au and 4crb.com.

Related Episodes

• Episode 19: New E-Bike Laws & Family Law Basics , the launch of this Family Law series and the definition of a de facto relationship
• Episode 4: Blended Families , wills and inheritance in blended and step-family situations
• Episode 3: Wills and Estates , probate, executor duties and challenging a will
• Episode 7: QCAT and Disputes , resolving minor civil disputes including ownership of goods
• Episode 11: Debt Collection and EPOA , recovering money and assets from uncooperative parties

Footnotes

The episode also launches a new multi-week Family Law series, starting with the fundamentals: how the Family Law Act 1975 applies to married and de facto couples alike, how a de facto relationship is legally defined, and the strict time limits for claiming a property settlement after separation.

Four listeners call in live with questions ranging from footpath bicycle bells to protecting an inheritance from a separated son’s future spouse, along with a lighter regulatory aside on Gold Coast apartment bird-keeping limits .

Key Topics

• E-bike compliance today, the current 250W motor cap and 25km/h motor-assist limit that separates a legal e-bike from an illegal motorbike.
• 1 July 2026 changes, new 12km/h footpath and shared-path speed limits, random breath testing at the standard 0.05 limit, mandatory EN 15194 compliance plates, and impoundment/destruction of non-compliant devices. See E-Bike Laws Queensland 2026 .
• 31 August 2026 licensing rule, riders over 16 need at least a learner’s permit; riders under 16 must be accompanied by an adult on the road.
• Family Law fundamentals, the Family Law Act 1975 (Cth) covers divorce, property settlement, parenting orders, child support and spousal maintenance across married and de facto relationships alike.
• De facto relationships, the two-year threshold and the evidentiary factors courts weigh when deciding whether one existed. See De Facto Relationships in Queensland .

Listener FAQ Highlighted In This Episode

• Does a bike need a working bell to be road legal? Yes, a bell is part of the roadworthiness requirements under Queensland’s road rules, and riders passing pedestrians without one (or without using it) can be committing an infringement.
• Can an 80-year-old without a driver’s licence ride an e-bike? Not on the road or footpath without at least a learner’s permit from 31 August 2026, and likely an annual GP fitness-to-drive letter, regardless of age or reason for surrendering a previous licence.
• Can I get a refund if a theme park ride excludes me for a medical condition I wasn’t told about beforehand? Possibly, under the Australian Consumer Law if the missing information would have changed your purchase decision.
• How long do I have to challenge a will as a beneficiary? Six years from the date of death to claim against an executor for improper distribution, see Wills and Estates .
• Can my son’s estranged wife claim part of an inheritance my husband and I leave him? If he is still legally married (not divorced) when he inherits, those assets could be included in a future property settlement, see De Facto Relationships in Queensland .

Listen to the full discussion above.

Key Takeaways

1. Check your e-bike’s compliance plate now. Non-compliant devices can be impounded and destroyed after 1 July 2026.
2. Get a learner’s permit if you plan to keep riding after 31 August 2026, even if you’ve surrendered a driver’s licence due to age.
3. De facto relationships trigger property rights after roughly two years, regardless of whether the couple shares one roof.
4. Act within six years of a death if you suspect an estate has been distributed incorrectly, time limits run out faster than most people expect.
5. Divorce sooner rather than later if protecting family assets from a spouse’s future property settlement claim is a priority.
6. Read theme park terms and conditions before you buy, undisclosed exclusions may entitle you to a refund under the Australian Consumer Law.

Next week: the Family Law series continues with parenting orders, child arrangements, and the mechanics of a property settlement split.

Annotated Transcript

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This program provides general legal information only. It’s not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

[Colin]: Well, it’s a very good morning to Andrew Bell from Bell and Senior Lawyers. Morning.

[Andrew]: Morning Colin, lovely day. Great to be back.

[Colin]: It is. It’s nice to see the sunshine after a week of threatening rain but uh, yes, the sunshine is back and we’ve got cooler temperatures, so winter’s well and truly here. We were speaking off air and every time we talk off air you come up with a fun fact that walks through the door during the week. I love this one, do you want to tell the listeners about it?

[Andrew]: Yes, well all sorts of people have all sorts of legal problems and one problem we had this week related to what birds you can have in your apartment on the Gold Coast. Not an area of law that I was familiar with before we looked it up and read the regulations. But if you’re in an apartment, if you’ve had to move from a house and you’re under 300 square meters, there’s very different rules about how many animals you can keep for all sorts of different sorts of animals. So for example, you can’t have a peacock unless you’ve got 4,000 square meters.

[Colin]: Oh, that’s okay. Fair enough. Potentially a good thing.

[Andrew]: But you can have, and they define it by the size of the bird, so I’m a little bit confused if the bird grows up if it goes through multiple categories, but you can have four little budgerigar sized birds, you can have two cockatiel sized birds, and one cockatoo sized bird.

📎 See also: Bird Keeping Laws in Gold Coast Apartments

Segment, E-Bike Laws: What’s Legal Right Now

Topic: Current e-bike motor and speed limits Legislation: Transport Operations (Road Use Management, Road Rules) Regulation 2009 (Qld); Australian Standard EN 15194

[Colin]: Well look, fun fact. That’s a good start. Well, our topic of the day is fairly contemporary. We’ve got e-bike laws pending to fall very, very shortly and we thought we’d just tackle the minutia, let’s say, or the detail. So why don’t we start there. What makes an e-bike legal in Queensland right now?

[Andrew]: Okay, so for those who aren’t familiar, but I’m sure they’ve probably seen them driving along the coast, the big fat-wheeled e-bikes, but also they can look like a normal push bike as well, the differentiator is they’ve got a battery and they’ve got a motor in them, and that’s what makes something an e-bike. And the rules are getting toughened significantly coming up, but at the moment you can have a motor that goes up to a continuous power of 250 watts regardless of the size of the rider, and it can only give you motor assistance up to 25 kilometers an hour. And if it does more than that, then it’s classed as a motorbike.

[Colin]: Wow. Okay, so that is today. And I did neglect to mention this is a talkback program. This is your opportunity to get some free legal advice right here this morning. So we’d love to hear from you, it is your show: 07 5520 8888 is the number. Please don’t leave your call to the end of the show, we’d love to hear from you. Alright, okay, and if it doesn’t meet these criteria of size of motor and speed that it’s capable of, what happens?

[Andrew]: Well essentially it turns into a motorbike. There are a few other subtleties. You can only have a throttle that takes you up to 6 kilometers an hour, it’s got to have pedals so you can ride it. You can go faster than 25, but the motor can’t be working then. But if that’s the case there could be fines over a thousand dollars if it’s seen as an illegal motorbike. You could potentially lose your car licence.¹ If you’re in an accident, you could be in trouble for driving uninsured. It would be a really bad day for you getting done on an illegal motorbike, Colin.

📎 See also: E-Bike Laws Queensland 2026

Segment, What Changes on 1 July 2026

Topic: Footpath speed limits, breath testing, compliance plates Legislation: Transport Operations (Road Use Management) Act 1995 (Qld); Australian Standard EN 15194²

[Colin]: So that’s now, today, isn’t it? We’ve got some changes coming up on 1 July. So can I still go fast on a legal e-bike?

[Andrew]: Yes you can, but the motor must cut out at 25 kilometers an hour. So if you’re going down a really big hill and you’re going faster than that… however you still have to follow the speed limit. So if you do go above 60 and you’re overtaking cars down the hill in a 60 zone, then you can be done for speeding, but the bike isn’t supposed to be able to. So where we had issues with these e-bikes and why they’ve come in is a lot of people have either imported them saying they’re only going to use them off road, which is legal use, or they’ve got really powerful motors in them and they’re software limited to 250 watts, but the kids have worked out how to change the software so now you’ll see them overtake you when you’re on a suburban street.

[Colin]: That’s right. And that’s the, we’ve all seen the vision on the television of bikes driving up the middle of the road and people doing wheelies. The concerns have been in the past that I can’t identify them if they hit my car, people have been hit while walking down the street and again either gravely injured because they can get up to high speeds and they’re very weighty in themselves.

[Andrew]: Absolutely. Even a normal push bike, I know some people have been in some serious incidents with them, can cause all sorts of damage to passengers, but these bikes are 20 plus kilos and traveling at 60 kilometers an hour. So yeah, there’s a lot of danger involved.

[Colin]: Alright, we’re moving now to what happens on July 1. Take us through it.

[Andrew]: Okay, so the government’s recognized this is a problem and they’re putting in the rules around particularly when you can drive these bikes on the road and on the footpath. If you’re on private property, they don’t necessarily apply. But for example, the first thing they’re doing is putting in speed limits on footpaths and shared paths to 12 kilometers an hour. You can get done for speeding if you’re above that with an e-bike or an e-scooter. After that, they’re formally putting in a process of random breath testing. They can pull over any e-bike rider and test them for alcohol and it’s the same 0.05 limit as there is for driving. They’re also putting in significant fines from $518 to $6,900 if it goes to court.³

[Colin]: Okay, so this is going to be quite significant. The breath testing is going to catch a lot of people off guard I would imagine.

[Andrew]: Yes I would. And they have been marketed towards people who don’t have a licence, or I know some people are claiming that they can ride them home from the pub and enjoy a few. Well, that won’t be the case from July the 1st.

[Colin]: Alright, so if you’re underage, let’s say you’re 14 or 15 and you, I won’t say get caught drink driving your bike, but let’s say doing the wrong thing, who gets the fine?

[Andrew]: Well, I’m actually not sure about the drink driving question, but they are bringing in rules around compliance. So in the past, it’s been rules around what can be sold on the road, now the police have been empowered that they can actually check your device on the side of the road. They can put in motor testing and I’ve seen them do that, but they’re also putting in rules that you’ve got to have a compliance plate that says that this particular vehicle meets this particular Australian standard EN 15194 for those googling at home. And if it doesn’t meet those criteria then the parents can be fined for the vehicle. They can also have the vehicle taken off them, impounded and destroyed. So your $2,000 e-bike could be crushed and then you could be out for a $500 fine for your kid if they’re driving the wrong sort of thing on the road.

📎 See also: E-Bike Laws Queensland 2026

Segment, Licensing Rules from 31 August 2026

Topic: Learner’s permit requirement and under-16 supervision rule Legislation: Transport Operations (Road Use Management) Act 1995 (Qld)

[Colin]: Well look, it’s nice to see that there’s some common sense coming into it. I understand that there will be a few people who are a little upset about the changes, but I do know especially our demographic have been very concerned about what’s been going on with respect to these devices, kids driving up and down the road like they own it, wheelies… we’re very worried about running them over. So I think that these changes are going to be welcomed.

[Andrew]: I think so. I mean, I get very worried when I’ve had them dart in front of me overtaking me at the traffic lights about hitting someone. They can avoid you, but if they’re in your lane you can’t necessarily avoid them. And the other big change that’s coming in is licensing requirements. So from the 31st of August, if you’re under 16 you can only drive an e-bike on the road if you’re accompanied by an adult. And if you’re an adult you can only drive an e-bike on the road or the footpath if you have at least a learner’s permit. So if you’ve lost your licence or don’t have a licence, you can’t drive an e-bike if you’re above 16.

[Colin]: Okay, so it very much looks like we’re starting to put rules in place like cars and motorbikes, if you’re under 16 you must have a learner’s permit.

[Andrew]: Well, over 16 you must have a learner’s and otherwise you have to be accompanied by an adult.

[Colin]: Hang on a minute, I do have a 14 year old who’d be more than happy to start driving right now! Always very keen to grow up, aren’t they? Alright, it is halfway through the program. We’ve got 15 minutes to go. It is your turn now. We’d love to hear from you. 07 5520 8888 is the number to call for some free legal advice this morning. Don’t leave it to the end of the program.

Announcer: Wills, probate, powers of attorney or property matters are legal issues that can feel overwhelming. Don’t put off dealing with them. Call our trusted sponsors Bell and Senior Lawyers. They explain everything in plain English and guide you through every step of the way. For caring, experienced advice, phone 07 5532 8777 or head to bellsenior.com.au today. Bell and Senior Lawyers, making legal matters simple.

📎 See also: E-Bike Laws Queensland 2026

Segment, Introducing Family Law: The Basics

Topic: Why Family Law matters even in stable relationships Legislation: Family Law Act 1975 (Cth)⁴

[Colin]: Alright, we’re back and we’re with Legal Matters and we’re with Andrew Bell from Bell and Senior Lawyers. This is your opportunity to get some free legal advice this morning, 07 5520 8888 is the number. We have been talking e-bikes and the new rules that are coming in with those. We’re going to downshift, we’re going to move into another area of law now, Family Law. Doesn’t mean that your questions need to be related to either of these two topics. We’re just running through the changes and the updates as to how these areas of law work, you can pose your question on any area of law you like. 07 5520 8888. Alright, let’s move into the fundamentals or the foundations. Family Law, Andrew, why should someone in a happy, stable relationship care about any of this?

[Andrew]: Well yeah, and this is why I thought we would do a series on this. We did AI and computing the last couple of weeks, we’re going to do Family Law for the next couple of weeks. Just because you’re in a relationship doesn’t mean that this isn’t going to become an issue later on. A lot of people with the worst outcomes at the end are people who aren’t sure how the rules apply or if they even apply to them at all. I mean it’s a fact that many relationships end, people make financial decisions without understanding the consequences of those. People can live together for years not realising that they’ve created legal rights and obligations, and if you understand the basics you can at least understand how to protect yourself better.

[Colin]: Yeah, that’s great. What actually is Family Law in Australia?

[Andrew]: So Family Law is a federal law. Most of the time here we discuss state-based legislation, however this is federal law. So there’s a Family Law Act 1975 that applies in every state and territory. It now applies to de facto relationships as well as married relationships, same sex relationships, and heterosexual relationships. And it covers how we deal with children, how we deal with property after a relationship ends.

[Colin]: Okay, and what does it cover?

[Andrew]: So the big areas is divorce, so how are you officially no longer married. Property settlements after a relationship ends, what happens with the property. And parenting orders, so where do the children live, how are they paid for, and then also child support and spousal maintenance come into that as well.

📎 See also: De Facto Relationships in Queensland

Segment, What Is a De Facto Relationship?

Topic: The definition and two-year threshold Legislation: Family Law Act 1975 (Cth) s 4AA⁴

[Colin]: This is an interesting one because it usually comes down to definitions. It’s very easy to say ‘hey I’m married’ because you had a ceremony, but de facto, what is it, how do we define that, and is that a state based thing, is it across the country, does the same rule apply?

[Andrew]: Well it was state based things and it was inconsistent and it was recognized in some states and then it wasn’t, but now it’s federal and it’s consistent across the whole country. So the rules look at how long have two people lived together, whether there was a shared residence, the nature of their finances… because a de facto relationship is defined, a genuine committed relationship is what a de facto relationship is. If they go for more than two years, then once that ends there could be property rights for both parties who are in that relationship. So sometimes it’s an evidentiary issue in these family law matters about picking out was there actually a de facto relationship. And there’s lots of law around that. It’s reasonably easy if people are living in a romantic relationship together under the one roof for many years, but even if you’re not under the one roof a de facto relationship could be there, and that could mean superannuation splits, it could mean spousal maintenance, it could mean a whole lot of things for that property settlement.

[Colin]: Okay, well we’ll be moving through this over today and the next couple of weeks. We’ve got our first caller.

📎 See also: De Facto Relationships in Queensland

Caller 1, John | E-Bike Bell Compliance

Legislation: Transport Operations (Road Use Management, Road Rules) Regulation 2009 (Qld)¹

[Colin]: It is a very good morning to John. John, ask your question of Andrew.

[John]: Uh, good day Andrew. Just a quick question. You’ve been discussing e-bikes. The biggest thing I have is I don’t mind bikes on the footpath, but most bikes have a bell. Why don’t they get people to ring the bell as they come past? I reckon that should be a rule.

[Andrew]: Um, I believe it is a rule and I think it’s not a roadworthy bike if it doesn’t have a bell and they can get pinged for that. And I believe it’s actually part of the road rules.

[John]: Yeah, it’s safety and respect.

[Andrew]: I agree. Should both be there and the bell should be used heavily, but I think they are actually committing an infringement if they’re unsafe passing or not using a bell properly.

[Colin]: You’re right. You’re right John. I have actually experienced it where they just whiz by you. There’s no dinging of bells and no courtesy whatsoever.

[John]: Right. I won’t disturb you anymore. I just thought I heard you said driving, I thought, hang on, I’m gonna say something about these bells.

[Andrew]: I even know some people with some very fast racing bicycles and yes, they’ve had to strap on a bell onto the front of it even though there’s not a place for it just to make sure that it’s actually road legal.

📎 See also: E-Bike Laws Queensland 2026

Segment, Does Family Law Only Apply to Married Couples?

Topic: The three relationship categories and child support Legislation: Family Law Act 1975 (Cth); administered via Services Australia⁴

[Colin]: If you’d like to ask a question just like John did we’d love to hear from you. We’ve moved into family law now and we were just talking about the definition of de facto. We’re going to move in and say to the next question, does family law only apply to married couples?

[Andrew]: No. So it applies to any married relationship, de facto relationship, or if there is a child, even if there wasn’t a legal de facto relationship, then it covers all of those instances. There are three definitions.

[Colin]: Right, three definitions. Okay. Alright. And what isn’t family law?

[Andrew]: I guess if there’s a parenting matter or a relationship matter, that’s what’s covered by family law. Domestic violence is covered by a completely separate regime, which does relate to people in relationships and we might counter that in a week at the end of this series and that’s Queensland legislation. So domestic violence rules are different everywhere, but if we’re looking at property settlements and parenting orders which is the main areas of family law, yeah it’s married and de facto and relationships where children are involved.

[Colin]: Alright. Child support, it’s always a big one. How does that work?

[Andrew]: Okay, well child support is administered by what used to be called the Child Support Agency which is now part of Services Australia. You can’t contract out of child support. So you can’t come up with your own agreement, well, you can come up with your own agreement, but if either parent wants to enforce child support they can go to Services Australia and have it arranged. And child support is where a formula will be assessed on where children are living, the relative incomes and assets of both parental parties, and then they will make a determination of what needs to be paid and those are legally binding requirements.

📎 See also: De Facto Relationships in Queensland

Caller 2, Brian | Senior Rider Licensing

Legislation: Transport Operations (Road Use Management) Act 1995 (Qld)³

[Colin]: We’re going to move now to Brian. Brian, ask your question of Andrew.

[Brian]: Yes, my name is Brian. Um, I turned 80 last year and I was going to get a gopher but I haven’t done that because they’re just a bit slow from where I live to the shops. So I wanted to think about getting an e-bike. Because I handed my licence in, I don’t have one, can I still get an e-bike?

[Andrew]: Well you could buy one, but you can’t ride it on the road or the footpath without at least a learner’s permit Brian, after the 31st of August. So you’ll have to get yourself to Transport and Main Roads and then I believe you’ll also need an annual letter from your GP saying that you’re fit to drive.

[Brian]: Okay, yeah, right. Yeah okay, I just wanted to know that because I was going to get a gopher and I don’t need any of that.

[Andrew]: No. Great question though, I hadn’t actually thought of that one myself.

[Brian]: Because the gopher’s too slow. It’s about two to three kilometers from our nearest shop and if I want to go and get a loaf of bread or something like that.

[Andrew]: Oh, an e-bike’s very very convenient for that sort of thing and you can park it straight out the front and put a chain on it. So it sounds like a good idea, but as I said, from the 31st of August you’re going to need a licence to be able to do that.

📎 See also: E-Bike Laws Queensland 2026

Caller 3, Jeff | Theme Park Refund Rights

Legislation: Australian Consumer Law, Competition and Consumer Act 2010 (Cth) Sch 2⁵

[Colin]: Alright, we’re moving now on to Jeff. Jeff, ask your question of Andrew.

[Jeff]: Yes uh, I really enjoy your show and I’ve got a question regarding when you’re buying a ticket like to a theme park and if you don’t follow the instructions, is there any consequence? Like I went to a water slide park and every slide had a thing that you with my condition wouldn’t be allowed to ride the slide. So wondering whether they should have given that information before I bought the ticket or if I ignore their sign and say well my risk management says I should be able to ride it, is there any consequences there?

[Andrew]: Okay, well normally they’d be doing these things for insurance purposes. If there’s medical or other conditions and they’re worried about people using the equipment in a way that might cause them damage, they may be found liable and they may stop you from using it. Typically there’d be terms and conditions at these parks and I’m sure you could ask them for it beforehand. Also, if you’re not aware of something that would have changed your decision, Australian Consumer Law may kick in. If you bought it, turned up, couldn’t use it, you may be eligible for a refund on the basis that you wouldn’t have purchased it had you known the other information at the time of purchase.

[Jeff]: Right. So if I just ignore their sign and nothing happens, there’s no real consequences but if I did something…

[Andrew]: Well if they don’t kick you off the ride and you’re not injured, then no one would ever know. If you are injured or they do kick you off the ride, they may kick you off the ride because they’re very worried about you injuring yourself and they’re fully within their rights to ask you to leave their premises if they think you’re being dangerous to yourself or someone else.

[Jeff]: I just think that all the conditions seem to be excessive but I suppose they’re probably saying doing insurance.

[Andrew]: It’s all about safety. After Dreamworld they went very risk averse at all of the theme parks.

📎 See also: Bell & Senior Lawyers Consumer Law Resources

Caller 4, Amy | Six-Year Executor Claim

Legislation: Succession Act 1981 (Qld)⁶

[Colin]: It is now a very good morning to Amy. Amy, you’re there, ask your question of Andrew.

[Amy]: Yes, it’s about my husband’s will. He died in 2020. He was an ex-policeman, he was in the force for nearly 30 years. My ex-son-in-law had his will… I know I should have got the money out of Maurice’s super.

[Andrew]: Okay so super is outside of the will generally, and that would be on the terms of whatever death benefit he had named. Have you seen a copy of the will Amy?

[Amy]: Yeah I have. I’ve even got a copy of the will.

[Andrew]: So are you concerned that it hasn’t been given out properly or what is your concern?

[Amy]: It hasn’t been given out properly I know.

[Andrew]: Okay well you have six years from the date of death to be able to claim against the executor if it hasn’t been done properly. We’re getting very close to six years. So I would…

[Amy]: I know, well yeah, it’ll be six years in August.

[Andrew]: Okay, well I would urgently suggest that you actually seek paid legal advice to have a look at the will if you’re looking at any concerns about it not being distributed properly or you’ll limit your time to be able to do anything about it.

[Amy]: Yeah I know that it’s not done properly. I was the beneficiary. But if I did not have sound mind, I’m in my 80s, and I have got sound mind, I found out that the will was given, if I didn’t have sound mind my two grandsons, who are his sons, would get the money, so to speak. He has never given me anything from the court or whatever. I’ve tried to get in touch with him and all I got was an answer but no phone number and no address.

[Andrew]: Okay well your time is rapidly running out on this matter. I strongly recommend you can get any of the probate information from the Supreme Court. You do have six years from the date of death to be able to challenge if it hasn’t been distributed properly, and I think a professional’s going to have to look at the actual terms of the will and what’s been distributed because that executor would be personally liable if they haven’t followed the rules properly.

[Amy]: Um, could I get the police just to charge him?

[Andrew]: No. No. They’ll say it’s a civil matter.

[Amy]: Okay, because I thought that would have been easier with poor me for my age and that, you know.

[Andrew]: Yeah, even if you take it to community legal on a Thursday night at Robina and they can have a look at the will there. But unfortunately without the specifics I can’t really give you more advice on that Amy.

📎 See also: Wills and Estates

Caller 5, Trish | Protecting Inheritance After Separation

Legislation: Family Law Act 1975 (Cth)⁴; Domestic and Family Violence Protection Act 2012 (Qld)⁷

[Colin]: We’re going to move now to Trish. Trish ask your question of Andrew.

[Trish]: Yes, yes, thank you. Just a quick one. My son left his wife beginning of 2024. Owing to his wife being involved with drugs, alcohol and gambling, left him pretty much with nothing. Came to live with me for 12 months but he sort of moved out and now renting with other family. My question is that he is actually afraid to file for a divorce based on the company that she keeps. My question is if my husband or I pass away is there any time frame within which she could possibly claim a portion of inheritance?

[Andrew]: So they’re separated but not divorced. They weren’t in a de facto relationship. So they’ve got 12 months to do a property settlement after the divorce. And it’s whatever was in the possession of the two parties at that date where the percentage split is decided by the courts or agreed by them. So if he were to inherit a million dollars and they’re married, she may be able to claim a significant portion of that. So I would advise that he gets divorced even if he needs to notify the police, and if anything bad happens apply for a domestic violence order. But a divorce would be what I would recommend if he’s worried about protecting his assets long term.

[Trish]: Oh it’s not really his assets, he hasn’t got anything neither has she, but it’s more about my husband’s and my assets if we pass away because he’s a beneficiary.

[Andrew]: Well if they’re legally his, then they can be divided up in a property settlement. So a property settlement will be 12 months from the date of divorce. If they’ve already been separated for 12 months he could apply for a divorce imminently and then that would start the clock ticking for when she could come up with a property settlement claim. Outside of that 12 months she’d have to go to the court and have extenuating circumstances. But I’d advise he gets divorced sooner rather than later.

[Trish]: Thank you very much.

[Colin]: Well thank you Trish. We’ve got another caller on the line but we’re going to have to run off to our local news bulletin and we’ve run out of time this morning. If you were hoping to get some free legal advice, Andrew joins us again next week at 9am on a Tuesday. Please don’t leave it too late to make those calls and we’d love to hear from you. Andrew great show, great information.

[Andrew]: It was great and great participation by the audience. Thank you for calling in.

Announcer: You’ve been listening to Legal Matters proudly brought to you by our trusted sponsor Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programs and all relevant resources will be available for you to replay or download on bellsenior.com.au and 4crb.com.

📎 See also: De Facto Relationships in Queensland

Related Episodes

• Episode 18: AI Law in Australia , legal privilege, AI copyright and automated decisions
• Episode 4: Blended Families , wills and family structures relevant to separation and inheritance
• Episode 3: Wills and Estates , probate, executor duties and challenging a will
• Episode 7: QCAT and Disputes , resolving consumer disputes including refunds and deposits
• Episode 11: Debt Collection and EPOA , recovering money from non-performing suppliers

Footnotes

Key Topics Covered This Episode

• ChatGPT and legal privilege: The United States v Heppner ruling confirmed AI-generated documents carry no attorney-client privilege, Does Talking to ChatGPT Attract Legal Privilege in Australia?
• AI waiving existing privilege: Uploading a privileged document to a public AI tool may permanently destroy that protection, Can Uploading Documents to ChatGPT Destroy Legal Privilege?
• AI hallucination in Australian courts: Three lawyers referred to regulators after AI documents contained fabricated citations, AI Hallucination and Fake Case Citations
• AI and copyright: Entirely AI-generated content has no copyright protection under Australian law, Who Owns AI Generated Content in Australia?
• Automated decisions: New Privacy Act transparency obligations from 10 December 2026, Your Rights When an Algorithm Makes a Decision About You
• James’s caller dispute: Verbal agreement, $500 deposit, supplier substituting a different product, Are Verbal Agreements Legally Binding in Australia? · Door to Door Sales and Your Cooling Off Rights

ChatGPT Cannot Be Your Lawyer: The Landmark Heppner Ruling

Legal professional privilege is one of the oldest and most fundamental protections in the common law.¹ When a client communicates with a qualified lawyer in confidence for the dominant purpose of obtaining legal advice, that communication is protected from compelled disclosure. The protection exists because the justice system depends entirely on clients being completely frank with their legal advisers.

The critical question in 2026 is whether the same protection applies when someone types a legal question into an AI chatbot rather than picking up the phone to a solicitor. A federal judge in the Southern District of New York answered that question definitively on 10 February 2026 in United States v Heppner.² The defendant, Bradley Heppner, faced fraud charges and had used Anthropic’s Claude AI tool, acting without any direction from his lawyers, to prepare documents outlining his defence strategy and his analysis of the government’s likely case. He later shared those documents with his defence counsel. Prosecutors sought to compel production of the 31 AI-generated documents. Judge Jed S Rakoff granted the application and refused any claim of privilege.

Judge Rakoff’s ruling rested on three findings. First, Claude is not a lawyer and no recognised privilege can exist without a trusting human relationship with a licensed professional who owes fiduciary duties and is subject to discipline. Second, the documents were not confidential because Heppner had communicated with a third-party platform and had consented to Anthropic’s privacy policy, which disclosed that user data could be shared with third parties including government regulatory authorities. Third, Heppner had not used Claude to obtain legal advice because he did so without any direction from counsel, and Claude itself explicitly disclaims any ability to provide legal advice and recommends consulting a qualified attorney.³

The Australian Position: Federal Court Warnings and Regulatory Referrals

While Heppner is an American decision, the Australian legal position is heading in exactly the same direction and in some respects has moved faster. The Federal Court of Australia issued Practice Note GPN-AI requiring all practitioners and parties to verify AI-generated citations independently, to disclose any AI use in document preparation, and to confirm that AI-generated propositions are supported by real authority.⁴ Paragraphs 4.13 and 4.14 of that Practice Note explicitly warn that inputting confidential or privileged information into a public AI tool may compromise confidentiality and waive privilege.

In December 2025, an Australian court referred three lawyers to their respective state regulators after AI-prepared court documents were found to contain inaccurate and erroneous citations. The court’s judgment flagged the risk that inputting draft documents into a public AI program could lead to privacy violations, breaches of obligations regarding subpoenaed materials, and waiver of legal professional privilege.⁵

Clayton Utz confirmed in April 2026 that the same principles apply under Australian law: legal professional privilege requires confidentiality as a key ingredient, conduct inconsistent with maintaining confidentiality may waive privilege objectively regardless of the user’s intent, and public AI tools threaten both the confidentiality and dominant-purpose requirements that Australian privilege law demands.⁶

The distinction that matters is this: when a qualified lawyer directs and supervises the use of AI as part of their advisory or litigation work, with proper confidentiality controls in place, Australian courts are more likely to regard the resulting communications as privileged. When an individual uses a public AI tool of their own accord without legal supervision, as Heppner did, no privilege arises and no existing privilege survives.

AI Hallucination: When the Machine Invents Cases That Do Not Exist

AI hallucination is the term used when a large language model generates entirely fabricated information with complete confidence. It has occurred with ABN lookups, business names, email addresses, and most dangerously in legal proceedings, court case citations that do not exist, citations attributed to the wrong courts, and legislative provisions that have been repealed or never existed.

In Australia, the December 2025 referral of three lawyers to regulators is a watershed moment.⁷ The Federal Court’s Practice Note GPN-AI makes clear that lawyers must verify the existence of every legal authority cited before filing any document, regardless of how that citation was produced.⁸ For self-represented litigants, the risk is equally serious: citing a non-existent case misleads the court, which may constitute contempt and can result in adverse cost orders or a strongly worded rebuke that damages the remainder of the case.

Andrew Bell noted on air that the same problem arises with legislation. AI tools regularly describe provisions from the wrong version of an Act, cite sections that have been amended, or apply American or United Kingdom law as though it were Australian law, often with no indication that the jurisdiction has changed. The output reads as authoritative while being substantively wrong in ways that are dangerous for anyone without the legal training to identify the error.

Who Owns AI Generated Content? Copyright and the Human Authorship Requirement

Copyright in Australia arises automatically the moment a human being creates an original work that reflects their independent intellectual effort.⁹ It requires no registration, no fee, and no formality. It protects literary works, artistic works, musical compositions, photographs, films, and other original material for 70 years after the calendar year in which the author dies.¹⁰ The owner of copyright has the exclusive right to reproduce, publish, and communicate the work to the public.

The difficulty with AI-generated content is that Australian copyright law has always required a human author.¹¹ Content generated entirely by an AI tool from a single prompt has no copyright protection because no human author has contributed the required independent intellectual effort. That means any competitor, any third party, or any member of the public who obtains access to that content can reproduce it, publish it on their own website, distribute it to their clients, or otherwise use it without infringing any copyright. The business that paid for the AI subscription and generated the content has no exclusive rights in it whatsoever.

Andrew Bell illustrated the human authorship principle on air with two analogies that reflect the correct legal logic. Courts in various jurisdictions have considered whether works produced by non-humans, including paintings attributed to elephants given a brush and photographs taken by animals operating cameras without human direction, can attract copyright. In each case the principle applied is the same: copyright vests in the human who makes the creative choices, not in the animal or the machine.¹² If a human presses the shutter, copyright belongs to that person. If the animal presses it unattended, no copyright exists in anyone. The same logic applies to AI: if a human author makes genuine creative choices and contributions beyond a single prompt, copyright may vest in them. If the AI generates the work autonomously, there is no copyright owner.

The practical implications for Gold Coast businesses are significant. Marketing copy, website content, product descriptions, blog articles, and social media posts produced entirely by a single AI prompt can be freely copied by any competitor. Businesses wishing to protect their content need either to produce it themselves with genuine human creative effort, or to ensure that a human author makes sufficient original contributions to the generation process to satisfy the independent intellectual effort requirement.

Automated Decisions: When an Algorithm Controls Your Life

The 2026 federal budget included a funding commitment to automate decisions made by Services Australia, the Department of Veterans Affairs, and other Commonwealth agencies using artificial intelligence, with the stated objective of reducing the human workforce required to process Centrelink claims, Medicare payments, NDIS eligibility determinations, and pension applications.

Andrew Bell described this development as deeply concerning for two reasons. First, large language models and AI decision systems do not produce deterministic results. The same input does not reliably produce the same output, meaning a system making eligibility decisions about pensioners or NDIS participants may produce inconsistent outcomes that have no rational basis and no human accountability. Second, the models underlying these systems have been trained predominantly on historical data drawn from English language sources. Historical data encodes historical biases. An automated decision system may be rejecting applications based on factors including surname, postcode, age, or other demographic characteristics that no human reviewer would consciously apply and that no member of the development team may have identified as a problem.

What the Law Currently Provides and What Is Changing

The most effective current avenue for challenging an automated government decision is to request the reasons for the decision in writing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or, in Queensland, the Judicial Review Act 1991 (Qld).¹³ If the automated system failed to take a relevant consideration into account, the decision may be susceptible to judicial review. As Andrew noted on air, this process is difficult, slow, and provides no guarantee of a different outcome.

A significant new protection is arriving. The Privacy and Other Legislation Amendment Act 2024 (Cth) introduces mandatory transparency obligations for any organisation, including government agencies, that uses personal information in automated or substantially automated decision making that could reasonably be expected to significantly affect a person’s rights or interests.¹⁴ These provisions come into force on 10 December 2026. From that date, organisations must update their privacy policies to disclose the kinds of personal information used, the types of decisions made by automated systems, the logic applied, and the most influential factors in those decisions. The Office of the Australian Information Commissioner has stated that “the algorithm decided” will not be an acceptable explanation.¹⁵

There remains no general right in Australia to require that an automated decision be reviewed by a human being. This right exists in several overseas jurisdictions and has been recommended by the Australian Human Rights Commission.¹⁶ It is expected to be legislated in Australia in coming years but has not yet been enacted.

Caller: James and the Door to Door Battery Dispute

James called in with a dispute that began when salespeople arrived uninvited at his door selling batteries. He agreed verbally to purchase a 10 watt battery for $500, paid a deposit, and signed nothing. The supplier subsequently communicated only by email, which went to James’s junk folder. The supplier is now attempting to substitute a 9.3 watt battery instead of the agreed 10 watt product and is demanding full payment in advance before commencing installation.

Andrew Bell’s advice addressed two distinct legal issues.

The verbal contract. The absence of a signed document does not mean there is no contract. James made a verbal agreement with sufficiently certain terms, being a specific product at a specific price, and paid a deposit. That combination is almost certainly sufficient to constitute a binding contract.¹⁷ The supplier is now proposing to deliver something different from what was agreed, which is a breach of contract. James’s options are to accept the substituted product by negotiating a variation, or to treat the supplier’s inability to deliver the agreed product as a frustration of the contract and demand a full refund of the deposit.

The demand for full upfront payment. While requiring upfront payment is not inherently a sign of fraud, it is a legitimate concern in the context of a door to door sale where the supplier had already been difficult to contact. Andrew’s practical recommendation was direct: request the deposit back and engage a different provider in what is a competitive market.

Key Takeaways

1. AI conversations are not protected by legal professional privilege in Australia. Judge Rakoff in United States v Heppner confirmed that AI tools are not lawyers, communications with them are not confidential, and no privilege arises. Australian courts and the Federal Court’s Practice Note GPN-AI are aligned with this position.

2. Uploading privileged documents to a public AI tool may permanently waive privilege. Waiver of legal professional privilege in Australia is assessed objectively under Mann v Carnell (1999) 201 CLR 1. Conduct inconsistent with maintaining confidentiality destroys the protection regardless of what the user intended.

3. AI-generated case citations must be verified on AustLII before any use. Three Australian lawyers faced regulators in late 2025 for submitting AI-prepared documents with fabricated citations. Every citation must be independently confirmed before filing or relying on it.

4. AI-generated content has no copyright protection in Australia. Copyright requires a human author who contributes independent intellectual effort under IceTV. Content produced entirely by a single AI prompt can be freely copied by any competitor or third party.

5. New automated decision transparency rights commence 10 December 2026. The Privacy and Other Legislation Amendment Act 2024 (Cth) will require organisations to disclose the logic, data, and key factors behind automated decisions. “The algorithm decided” will not be acceptable.

6. A verbal agreement plus a deposit is a binding contract in Queensland. If a supplier cannot deliver what was agreed, they have frustrated the contract and you are entitled to a refund of the deposit. The absence of a signed document does not eliminate the agreement.

7. Door to door sales attract a 10 business day cooling off period under Australian Consumer Law. This right cannot be contracted out of and applies to any unsolicited agreement entered into at a consumer’s home.

8. AI tools carry no warranty for accuracy and there is currently no legal recourse in Australia. Every major AI provider expressly disclaims liability for the accuracy of outputs. There is no successful Australian precedent awarding damages against an AI company for inaccurate information.

9. Algorithmic bias is a real and unresolved risk in Australian government decisions. AI systems trained on historical data may discriminate by surname, postcode, age, or other factors in ways that are very difficult to detect or challenge under current Australian law.

10. Enterprise AI used under legal supervision is safer for privilege, but not risk-free. If a qualified lawyer directs and supervises AI use with proper confidentiality controls, Australian courts are more likely to treat resulting communications as privileged. Public AI tools used without legal supervision provide no such protection.

Listener FAQ: Deep Dive Articles

The following resources expand on the legal topics discussed in this episode. Each article provides a detailed explanation with relevant Australian case law and legislation.

Related Episodes

This Technology Law Series

• Episode 16: Technology Law Part 1, Business, Cyber and the Digital Economy , internet law, safe harbour provisions, DMCA, cyber security obligations for Queensland businesses
• Episode 17: Technology Law Part 2, Consumer AI, Safe Harbour and Internet Law , what AI actually is, how LLMs work, consumer rights in the digital economy

Related Blog Articles

• Legal Risks of AI for Business, Australia, US and UK , the definitive guide comparing Australian, US and UK AI regulatory frameworks, with a practical checklist and December 2026 compliance deadlines

Also Relevant

• Episodes 13 and 14: Administrative Law , the administrative law framework for challenging government decisions, directly applicable to automated Centrelink and NDIS decisions
• Episode 11: Debt Collection and EPOA , recovering deposits paid to non-performing contractors
• Episode 12: Loan Agreements and Debt Collection , contractual obligations and consequences of failure to perform
• Episode 7: QCAT and Disputes , practical process for resolving consumer disputes including deposit recovery

Next Week

Andrew flagged that the AI law series may be set aside for a different topic next week, depending on listener demand. Colin and Andrew have further AI material prepared and may return to it if listeners call in with questions. Tune in to 4CRB every Tuesday at 9am or visit bellsenior.com.au for resources and show notes published during the week.

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Annotated Transcript

Segment 1, Introduction & AI Law Recap 📎 See also: AI Legal Privilege Australia

Announcer: 4CRB now presents Legal Matters, proudly brought to you by Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. This program provides general legal information only. It’s not personal legal advice. Everyone’s situation is different, so please seek independent advice for your own circumstances.

Colin Balewski: Well, it’s a very good morning to Andrew Bell from Bell and Senior Lawyers. Good morning Andrew.

Andrew Bell: Good morning Colin. Thanks for having me back yet again talking more about technology law.

Colin Balewski: We are indeed. Well this is your show, it is Legal Matters. This is your opportunity this morning to get some free legal advice live on air. We’d love to hear from you this morning. Do not leave it to the end of the program, 07 5520 8888 is the number. 5520 8888. And we’d love to hear from you this morning. Last couple of weeks we’ve been talking AI law and we’ve had some great feedback from people on the topic. We’ve enjoyed, I’ve enjoyed the conversation because it’s what I studied way back when and uh this is a very interesting topic as to where the law sits in all of this or where it’s potentially going to sit if it hasn’t made up its mind yet. Maybe we’ll start with that recap Andrew as to what we discussed in the last couple of weeks.

Andrew Bell: Sounds good. Yeah, I agree. AI is now being woven into every part of everything that we do. So while it wasn’t a big consideration a few years ago, it really is becoming important that we understand what we can and can’t do. So two weeks ago we talked about internet law and why Google and Facebook etc can host what they can host and seemingly get away with it. The… these were the safe harbor provisions that came from America through the Digital Millennium Copyright Act or DMCA, and then got incorporated into Australian law via the US free trade agreement. And then last week we started talking about what AI actually is. And my central point was that large language models aren’t thinking machines, they’re really sophisticated auto completes. So they look at the statistically most likely word that comes next and they’re programmed to always produce an answer even when they genuinely don’t have one behind the scenes, which can create all sorts of chaos.

Segment 2, Legal Privilege & ChatGPT (United States v Heppner) 📎 See also: AI Waiving Legal Privilege

Colin Balewski: Absolutely. Well this is your program. 07 5520 8888 is the number. We are talking AI law this morning, but that doesn’t preclude any legal question you may like to pose this morning. 07 5520 8888. Andrew, prior to us going on air, we talked about a case decided in New York in February this year that you said every single person who has ever typed a legal question into ChatGPT needs to hear.

Andrew Bell: Exactly. So Colin, in Australia and in America, if you go and see a lawyer and tell them that you might have a problem, that conversation is protected. We call it legal professional privilege. So your lawyer can’t be forced to reveal what you’ve told them, and it’s one of the oldest and most fundamental protections in our legal system. And it exists because people need to be completely open and honest with their lawyers. Um, however, what happens if you’re treating something like your lawyer, but they’re actually an AI robot? Okay, this is an interesting one. So in February this year a federal judge in New York City handed down a decision in a case called the United States against Heptner. And in this case, the defendant had used a similar program to ChatGPT called Claude to research and work through his own legal position. He later picked up those documents and shared them with his defense lawyers. Prosecutors then tried to get a subpoena, which means that Claude was forced to hand over the information that they had about him. And that was granted by the judge. The defense argued that they were protected documents because they were relating to his legal defense and that he had shared them with counsel, and the judge rejected it. He said the documents went straight to, there is no basis for any claim of attorney-client privilege. And the documents went straight to the prosecutors. So the defendant’s own AI research was used against him in court.

Colin Balewski: Okay, so let’s be really clear about this. The moment you type a legal problem or a legal question into ChatGPT instead of ringing a solicitor or a lawyer, your protection is gone.

Andrew Bell: Well that’s definitely the case in America. So yeah, if this now this does exist with other online platforms already. If you Google things, I believe the Baden-Clay example and there’s been a number of other high-profile murders and things where people have Googled things and it’s been used against them. However people treat their AI like it’s a person and they talk to them and trust them, and they tell them things that they probably wouldn’t tell anyone else. And now it turns out they definitely shouldn’t be telling anyone else.

Colin Balewski: Yeah, okay. That’s something that we hadn’t considered because I notice every day we ask ChatGPT or any of the AI bots out there more and more extensive questions surrounding business, surrounding personal efforts. It does a lot for you, but you’ve got to be careful about what it is that you’re discussing, even if it is a legal problem because it may end up being something that’s held against you.

Andrew Bell: It may. I’d treat it like a postcard. Don’t put anything into it that you don’t want anyone else to be able to read on the other side.

Segment 3, AI Hallucination & Fake Cases 📎 See also: AI Hallucination Courts Australia

Colin Balewski: All right, this is your program. 07 5520 8888. If you’d like to pose a question to Andrew Bell from Bell and Senior Lawyers this morning, and do not leave it to the end of the program, we’d love to hear from you. All right, moving right along, we’re talking AI law and oh dear, oh dear Andrew, when I start to think about what you put forward there, um there’s lots of things that you could be asking. You could be asking about a contract. I’m thinking of selling something, I’m thinking of willing something. All of these protections, or all of these… and again we also have that issue that we talked about last week, is it giving you the correct advice?

Andrew Bell: Well it’s it’s very difficult to tell if it’s giving you the correct advice Colin, because it’s programmed to give you what… because it doesn’t know anything and it doesn’t independently check things… although some services are starting to do that, it’s just giving you what it thinks the most likely answer is going to be. Um it comes up all the time, particularly in more narrow fields. It may give you an answer for Australian law, for example, and says it’s Australian law, but it’s actually American law. And our laws differ substantially in some areas and they’re very similar in some areas. Um yeah, what you put into it and what you get out the other end, you need to have the skills to be able to validate that it’s correct and look at it with a very keen eye. And even though you normally trust it and it might be 95% right, that 5% could be really detrimental to you.

Colin Balewski: So you need to check it for reasonableness is probably what you’re saying. Maybe the practical message in all of this is use AI, but make sure that you’ve then gone and done your homework afterwards, maybe it’s a good starting point. But again, don’t share with it things that you wouldn’t be happy if someone else was to put it up um and display it in front of your boss, your wife, your colleagues, etc. All right, for the last couple of weeks we have been discussing this topic, but we would love to hear from you this morning. 07 5520 8888 is the number. Pose any legal question you like and have it answered live on air. So for the last couple of weeks we have been talking AI and it invents legal cases that do not exist. Has this actually happened?

Andrew Bell: So yes, it’s happened overseas and it’s happened in Australia. So what we were saying last week Colin, you used the example of searching for an ABN on ChatGPT and it told you very confidently the business’s ABN, but when you went to look for it, the ABN didn’t exist. And the same thing happens with Australian cases. So there’s been a number of times where lawyers have got themselves in serious trouble, and my understanding is that self-represented people are facing the same problem, they’re turning up to court quoting a case that doesn’t exist. Now that is worse than losing a case, because you are misleading the court which is contempt. You have an obligation to be completely frank with the court and you’ve obviously put no effort into ascertaining whether that actually existed. Now a lawyer can be struck off and lose their practicing certificate for doing that, and if you’re self-represented you may receive the wrath of the judge, adverse cost orders, or even further sanction. So, this is called hallucination where the AI completely makes things up, and if it makes up a quote or an ABN or an email, that’s one thing. If it makes up a completely fake High Court case and relies on it, you’re in a whole lot of trouble.

Colin Balewski: Okay, that is uh a trap for young players. We have heard a lot of these stories, um and some of them are quite strange indeed. But I think it comes down to the bottom line Andrew, I one of the early ones as uh AI was coming out, someone said, write me a a contract uh to sell a product from one to the other. Um and protect my business and so forth. And then after the AI had generated it, he took it to a solicitor and said check this for me and tell me what you think. The solicitor came back and said, yeah, great, probably couldn’t have written it any better than what this one has, there’s probably a couple of clauses I could add. But when it goes wrong, who are you going to turn to? You can’t ring AI or talk to AI and have him solve that problem. And then where do you stand when you turn up at a solicitor’s door and say, hey I wrote my own contract, and now I’m in trouble?

Andrew Bell: Well unfortunately, you have nothing to fall back on. They all say, there’s if you read the terms and conditions that most people don’t, they all turn around and say that they have no warranty for any of this stuff that they produce. Um, it is being tested at the moment because people are suing AI companies um particularly in the states related to mass shootings or other things that it’s encouraged them to do, but there is no comeback. You use AI and you get what you get, it’s similar that if you go to some random website and copy information off it and then rely upon it. If you’ve got no contractual relationship with those people, you probably have very few grounds to do anything about it.

Colin Balewski: And that’s uh that’s probably coming back to one of those golden rules, it’s all good until it’s not. And you need to have backup when those things happen. We might go to a word from our sponsor, but before we do, uh we’d love to hear from you. 15 minutes left in the program. This is your opportunity to get some free legal advice live on air. Doesn’t have to be to do with what we’re talking about today, it can be any topic you like. 07 5520 8888.

Announcer: Wills, probate, powers of attorney, or property matters are legal issues that can feel overwhelming. Don’t put off dealing with them. Call our trusted sponsors, Bell and Senior Lawyers. They explain everything in plain English and guide you through every step of the way. For caring, experienced advice, phone 07 5532 8777 or head to bellsenior.com.au today. Bell and Senior Lawyers, making legal matters simple.

Segment 4, Copyright and AI Generated Images/Content 📎 See also: AI Copyright Australia

Colin Balewski: All right, we might move on to AI and copyright now, uh, and this is a a very broad discussion. I know that it’s been followed uh very closely by not only a number of uh my friends, but a lot of the volunteers have been talking about it around the uh the table. Uh all right. A number of Gold Coast business owners will be interested in this one. Who owns the generated copyright and images? Before we get into AI specifically, can we explain what copyright actually is for listeners uh who are not familiar with it and then we’ll dive into the uh the minutiae, let’s call it.

Andrew Bell: Sounds good. Well yeah, copyright um is very important and AI is a great tool to generate ideas, and I’m not saying don’t use AI, I’m just saying we need to be careful what we do use it for. But copyright is a form of intellectual property and it gets generated automatically the moment you create something original. In Australia we don’t need to register copyrights, so you might be familiar with the ‘C in a circle’ you’ll see on stuff, in other countries you do need to register it. You don’t need to pay for it, and it just exists for about 70 years. Literary works, artistic works, music, pictures… so all the sorts of things you might want to put on a website, Colin.

Colin Balewski: Yes.

Andrew Bell: And so that’s original information and that needs to be legally protected. So the creator of the work owns the copyright, that means you have the exclusive right to reproduce it, publish it, or communicate it to the public. Uh if a business puts an original photo on their website, they own the copyright because they created it, and you can assign those rights, and you can also protect other people from using them. So copyright is a very valuable tool for businesses to make sure that what they put out there into the world, that they’ve got some control over. Now, where AI comes into the picture, um might shock people. But a generated a document that’s generated entirely by Claude or ChatGPT from a single prompt, under Australian law is not protected by copyright. So anyone can copy it freely if they can get access to it. And this is completely different to things that you’ve written yourself. You own it because you’re the human author. The copyright law requires a human author in Australia, not a machine. If AI writes an entire report for your business, your competitor can lift it, publish it on their site, or you know, print it out and give it to their clients, and under copyright law there isn’t a lot you can do about it.

Colin Balewski: So that’s the minutiae. Does that include AI generated photos and images?

Andrew Bell: Yes, there’s a there’s a number of cases that that have gone through quite some substantial courts that that relate to copyright pre-AI where it was determined that machines and animals can’t own copyright. So there is a a famous case relating to elephants that were creating art, given a paintbrush, let them choose the colors, people pay for that art. And then other people were reproducing it and they got sued saying we own the copyright to this. Well, it was determined that it wasn’t an original piece of art because it wasn’t created by a human and therefore there was no copyright. There’s been similar cases about monkeys taking photos with with a camera. And again, the monkey can’t have the copyright, but if I press the button the copyright would vest in me. So yeah, you’ve got to be really careful depending on on what you’re doing, if you’re going to rely on that for anything major.

Segment 5, Automated Decisions by Algorithms 📎 See also: Automated Decisions Australia

Colin Balewski: All right, we might move on to another component of AI, but first again, 8 minutes left in the program. 07 5520 8888, do not leave it any longer. Ring now to ask your question or legal question of Andrew this morning. Uh, when AI makes decisions about you… Now I know we had a caller a couple of weeks ago that posed something similar to this, their bank used an algorithm to refuse their home loan with no explanation. What can they do and is the law changing in this area?

Andrew Bell: So the law in this area is going to change fast, but we don’t exactly know how it’s going to change. But um, AI is able to make decisions and is being used to make decisions already. The most recent budget handed down in May has taken that very seriously. The government committed millions of dollars to grants to um make sure that Services Australia, who do Centrelink and Medicare, Department of Veterans Affairs, and a number of other departments, to start automating decisions made around people using AI so they can reduce their human workforce. Now I find this very concerning. Um, last week we talked a little bit about how these large language models and AI don’t create what’s called deterministic results. You can put the same info in and get a different output out the other side. So the problem is, if they’re making a decision whether you’re eligible for NDIS, whether you’re eligible for a pension, whether they want to cancel or give you something that you’ve applied for, and then they reject it, on what grounds are they doing so? Now AI models take in lots of large amounts of information and produce an answer out the other side, but how do we actually know why they made that decision? Um, at the moment, all you can really do, if we go back to the weeks we discussed about administrative law, is ask for the reasons for the decision. And if they didn’t take everything into account that they should have taken into account, you might be able to get it reversed. But that’s going to be quite a difficult long process, and these decisions are going to be automated all the time.

Colin Balewski: One of my favorite things to do with these types of situations, whether it’s call centres overseas or whether it is automating processes or uh utilising software to make deterministic solutions is that while it may be faster and it may be uh easier for the company that is selling you the product or service, it really isn’t great for us. We end up spending a lot more time in involved in either getting that product or service or being completely frustrated by it, and hence some of the uh the Centrelink call uh numbers where you’re forever being told your call is important to us, please wait, but meant to be more uh more streamlined and efficient and it not and it isn’t.

Andrew Bell: Absolutely. And overseas some people at least have the right for a human to review an automated decision, we don’t have that here. It’s something that’s been recommended, and I think we’re going to find some things go horribly wrong before that then comes in here as well. Um, but as someone who’s built systems to make large amounts of decisions around approving credit, turning off people’s mobile phones and all sorts of other bits and pieces, there’s only so much information that you can take on board. And um how these decisions work is very difficult to actually describe to someone. But if you see the person next to you get approved and you get knocked back, why is it? Now I also think that discrimination and other things are going to come into it as well. A lot of these large language models have been trained on English language systems, trained on historical data. So it may have rejected you because of your surname, or because of your age, or other perceived biases that are built into the model that no one even is aware that they exist. So this is a rapidly developing area of law and not one where there’s a lot of actual guidance that the law gives us.

### Caller 1, James | Door to Door Battery Sales 📎 See also: Verbal Contracts Australia & Door to Door Sales

Colin Balewski: We’ve got our first caller, it is a very good morning to James. Ask your question of Andrew, James.

James (Caller): Good morning Andrew, how are you?

Andrew Bell: I’m good thank you James, how are you?

James (Caller): Yeah, great. Now um, I just want to know, I um had some people come in off the street uh selling batteries. Mm-hmm. Now now um, we spoke to them and we probably didn’t do our homework properly, but anyway um, we organized to buy a battery from them. Now we never signed nothing, um we tried to get in touch with them uh since. Mm-hmm. Now what’s happened is uh they don’t answer their phone, um anyway we managed to get in touch with them just recently and they said that um they sent us an email. Now we didn’t receive the email, although we thought we didn’t, but then it was in the junk mail, so we did receive the email. But we paid them $500 um for the battery, for a 10-watt battery. Now they want to give us a a 9.3 battery instead of a 10-watt. Mm-hmm. Um and we’re we’re really not happy with that. Um we ordered, now we never signed nothing to these blokes, so we ordered a 10 uh watt battery and that’s what we want. So how do we stand legally?

Andrew Bell: Well you keep saying you didn’t sign anything, but you did agree verbally and you have paid them some some money, so normally it would be considered that you have actually entered into a contract. You’ve gone beyond the negotiation stage. If it was sufficiently certain around what you’re ordering, and they can’t provide that, then you’d typically say that they’ve frustrated the contract and you should be able to get any deposit you paid back. You either get what you agree that they’re going to give you, or you negotiate a change to the contract. Um, but if you don’t want to negotiate the change to the contract, you can give them an the ultimatum. You either need to do what you said you’re going to do or you need to return my deposit.

James (Caller): Yeah, well these people also want the money up front before they do the job. Mm-hmm. And I’m I’ve been caught before by people where we’ve paid the money and we’ve we’ve just never got the job done.

Andrew Bell: Well I mean, anything can be negotiated in a contract. You can do it either way around, it doesn’t necessarily mean they’re a scammer. But I did also recently put in batteries and only paid after it was complete to make sure that it was um done to a high enough standard and it was signed off um, and the solar rebates came through. But again, you that this is to do with what you’ve agreed. So if you want to give them if you’ve already paid a deposit, I’d be questioning why you need to pay the rest of it up front. James, did you get any paperwork at all um describing uh what they were promising?

James (Caller): Yes, we did yes, we did get some uh paperwork what they were promising and they keep they just keep sending us an email now um, we need this money three or four days before we do the job. And I sort of think, well you know like, why should I have to pay up front to do a job um when the job mightn’t even be done or mightn’t be done properly?

Andrew Bell: I I think you’re right, but it does depend if there was any written contract or terms and conditions that you agreed to that said it would be paid up front. I can see why they may be asking for that, but it’s a very competitive market, I’d be recommending that you just ask for your money back and go and and go and speak to another provider.

James (Caller): Thank you very much Andrew. I certainly appreciate your time and what a great program you’ve got there.

Colin Balewski: Thank you James.

James (Caller): All the best. Thank you, bye.

Segment 6, Closing

Colin Balewski: All right, well that went very very quickly and I noticed we’ve got a text message there as well which I can’t read across the room so we’ll do that off air. We didn’t get to the end of our program again. But that’s okay, we do enjoy your phone calls. Thank you to James who called in today. We would like to hear from more of you next week. And uh Andrew, thank you very much again for your time this morning.

Andrew Bell: Thank you Colin. I think we might might shelve we’ve got more AI stuff, if people pop bring it back by popular demand we might, but we might move on to a different topic next week.

Colin Balewski: I’m excited by uh the questions we didn’t get to, but we’ll negotiate that out Andrew. All right.

Andrew Bell: Thank you.

Colin Balewski: All right, thank you very much for your time this morning. This was Legal Matters and it is heard every Tuesday morning at 9am. And uh you can call in at that time, same time next week.

Announcer: You’ve been listening to Legal Matters, proudly brought to you by our trusted sponsor Bell and Senior Lawyers. Call them today for all your legal needs on 07 5532 8777. A copy of this and past programs and all relevant resources will be available for you to replay or download on bellsenior.com.au and 4crb.com.

Footnotes

Key Topics

• Last Week’s Recap: A brief summary of the DMCA safe harbour framework, the CompuServe/Prodigy paradox, and Australia’s narrower safe harbour provisions for carriage service providers.
• Australia, US Free Trade Agreement in the News: The current tariff dispute and its relevance to the AUSFTA’s IP provisions.
• What Is Artificial Intelligence? The government’s difficulty defining AI, the distinction between traditional deterministic programming and statistical machine learning, and Andrew’s background developing credit-scoring and fraud-detection algorithms.
• How Large Language Models (LLMs) Work: LLMs as sophisticated, non-deterministic autocomplete systems, predicting statistically likely word sequences rather than independently verifying facts.
• AI Hallucinations in Legal Practice: Why AI tools confidently invent case names, citation numbers, and legislative sections that do not exist, and the serious professional risks of filing those references in court.
• Caller Robert, Retaining Wall Responsibility: Who bears responsibility for a retaining wall on or near the boundary between two properties under Queensland law?
• AI as “Sophisticated Autocomplete”: The distinction between a Google search (relevance-ranked) and an LLM (statistically generated), and why asking ChatGPT for an ABN can produce a confidently wrong answer.
• Caller John, Inter Vivos Gifts: Can family members challenge gifts of money made during a person’s lifetime after that person dies?
• Caller Anna, AI in Medical Consultations: A patient was asked whether her specialist could use AI note-taking software in their consultation. What happens to that health data? Is it shared? Can it be used for AI training?
• Closing Announcements: Andrew’s personal tribute to his sister Catherine Bell (1987, 2026), who passed away of bowel cancer, with a call for early screening; and congratulations to Ross Lee, awarded the Medal of the Order of Australia in the King’s Birthday Honours for founding My Community Legal.

Listener FAQ Highlighted in This Episode

• Can I use AI to write legal documents or arguments in Australia?
• Who owns the copyright in AI-generated content in Australia?
• What privacy rights apply when AI is used in my medical consultation?
• Who is responsible for a retaining wall in Queensland?
• Can a lifetime gift be challenged as part of a deceased estate?

Listen to the full discussion above.

Recap: Last Week’s Technology Law Discussion

📢 Topic: Summary of Episode 16, DMCA safe harbour provisions, the CompuServe/Prodigy cases, and Australia’s narrower safe harbour framework.

[Colin] We had a fantastic response to last week’s programme, via email, phone, and text. Some listeners even said it was so interesting that they missed their turn-off! Where would you like to pick things up, Andrew?

[Andrew] For those who weren’t listening last week, technology law is a favourite of mine given my long background designing large, complicated computer systems and my PhD in cybersecurity law. I serve on a number of national-level committees around AI and technology law. What we covered last week were the DMCA safe harbour provisions, the Digital Millennium Copyright Act, and why platforms like Google and YouTube are able to host content that many people find objectionable without being held legally responsible for it. It really comes down to two competing philosophies that emerged in the United States in the 1990s: either platforms needed to curate everything, or large publishers would be treated like a library, not responsible for what is on their shelves. The law came down firmly on the library side, and that framework was then incorporated into Australian law through the Free Trade Agreement that John Howard’s government signed with the United States.

[Colin] The Free Trade Agreement is in the news again right now, America is accusing Australia of allowing slave-traded products and wants to tariff our businesses.

[Andrew] That will be an interesting one. I think that particular dispute will get unwound like most of the other tariffs have been. But it does illustrate how those foundational agreements shape what law applies here decades later.¹

📎 See also: Episode 16: Technology Law Part 1 | Safe Harbour Provisions in Australia

What Is Artificial Intelligence?

📢 Topic: Cutting through the hype, what AI actually is, what LLMs do under the bonnet, and why “thinking machines” is a misleading description.

[Andrew] So today we were going to talk about artificial intelligence law. This is a rapidly developing area. But to start with, what is actually artificial intelligence?

Artificial intelligence is a suite of computer programmes, and everyone has a different definition of what it is. Even the Australian government struggles to define it.² A lot of what we see being called artificial intelligence at the moment I would not say properly meets the definition. But for what we are talking about today, that may not matter.

I have a long background in what is called machine learning and data science across large datasets. That is using statistics to determine what comes next, a field that has been used heavily across industry for the last 15 to 20 years. I have done things like write the machine learning algorithms used to assess credit applications for Coles Myer Mastercard, GE Finance, and 3 Mobile, determining whether applicants were creditworthy and whether they posed a fraud risk. Nowadays we would probably class that as artificial intelligence.

But the most recent AI that everyone is focused on is ChatGPT, Claude, Copilot, and similar tools.

How Large Language Models Work

[Colin] When you ask ChatGPT a question, it searches the entire internet for a consensus answer, is that a fair way of looking at it?

[Andrew] Mostly no, and this is a critical misunderstanding. LLMs are trained at a particular point in time. They are not looking at live data when you ask them a question. They are better understood as a very sophisticated autocomplete.

The way they are built is very different from a traditional computer program. A traditional program is deterministic: you put in some input, it does mathematics, and you get a predictable output. A Large Language Model is non-deterministic, both in the way it is trained and the way it produces output.

Here is a simple example: an LLM gets trained on enormous volumes of text, and it builds a probability model of any combination of words, what are the statistically likely next words in a sequence. If you give it the words “Ron” and “Hermione,” “Harry Potter” is statistically likely to follow. It does not know Harry Potter is a book series. It has simply learned that those words are associated.

[Colin] So it is giving you a statistically likely answer, not an independently verified one?

[Andrew] Exactly. And there is another serious problem: these models are programmed to always give an answer. They are not rewarded for saying “I don’t know.” So they will always try to answer your question, which can be genuinely dangerous, because what they produce is a statistically plausible answer, not a confirmed factual one. Some of the large models have been trained on every book ever written that could be scanned. They work very well in many contexts, but they do not actually know what they are talking about.

[Colin] I tested this myself yesterday. I asked ChatGPT to find the ABN for a company I deal with. It came back with a confident answer, business name, suburb, address, everything looked right. But when I checked the first two digits, something felt wrong. I went to the ABR directly and the ABN was completely incorrect.

[Andrew] And that is the core problem. If the model had been trained on current, complete ABN data, it may have given a good result. But if it was drawing fragments from different websites, the training signal for ABN data would be weak and what it “remembers” may be entirely wrong. It does not know it is wrong. It just gives you the most statistically likely sequence of characters.

📎 See also: AI-Generated Content Copyright in Australia | Technology Law Practice Area, Bell & Senior

AI Hallucinations and the Legal Profession

📢 Topic: Why AI tools fabricate plausible-sounding but non-existent legal authorities, and the professional consequences of filing them. Relevant law: Copyright Act 1968 (Cth) s 32 , human authorship requirement; Legal Profession Act 2007 (Qld) , professional conduct obligations

[Andrew] This brings me to one of the most serious problems in law right now: AI hallucinations in legal practice. A lot of people, both lawyers and non-lawyers, are using ChatGPT and similar tools to write legal arguments. And when you write a legal argument, you say things like “this position is supported by the case of Derry v Peek” or “see section 2 of the Defamation Act.” The problem is that the large language models in common use are predominantly trained on overseas legal materials. They are not reliably trained on Australian law.

What happens is that the model will generate something that looks exactly like a correct Australian case citation, it will have a case name, a year, a court, a citation number. It will look completely credible. But when you go to find it in AustLII or a law reporter, it does not exist. The model invented it because it was the statistically most likely sequence of words to follow a legal argument about that topic.

This is not a minor error. Courts in Australia and overseas have already sanctioned lawyers for filing written submissions containing non-existent authorities.³ In one well-publicised US case, a firm filed a brief citing six entirely fictitious decisions. In Australia, Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCA 44 has already been cited in discussions about AI and originality, and the courts are acutely aware of the risk.⁴

What the Law Requires

Under the Legal Profession Act 2007 (Qld) , a Queensland solicitor is under a duty of candour to the court, they must not make submissions they know to be false, and they must not cite authorities they have not verified.⁵ Filing a hallucinated case citation, even inadvertently, may constitute a breach of that duty and could result in costs orders, disciplinary referral to the Legal Services Commission, or conditions on a practising certificate.

For self-represented litigants, filing a fabricated authority may be treated as a contempt of court in egregious cases, or may simply result in the argument being dismissed entirely.

The bottom line: AI tools can be a useful starting point for legal research. They can identify the right general area of law and suggest relevant concepts. But every single case name, citation, and section number they produce must be independently verified by a qualified Australian lawyer before it is used in any document filed with a court, tribunal, or government body.

📎 Relevant legislation: Legal Profession Act 2007 (Qld) , solicitor’s duty of candour; Legal Profession Uniform Conduct (Barristers) Rules 2015 See also: AI and Legal Documents FAQ | Technology Law Practice Area

AI and Copyright, Who Owns AI-Generated Content?

📢 Topic: Does copyright protect images, articles, or code produced entirely by an AI system in Australia? Relevant law: Copyright Act 1968 (Cth) s 32 ; IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14

Although this specific question was not raised by a caller this week, it is directly connected to the broader AI discussion Andrew opened, and is one of the most common questions received by the programme following Episode 16.

Under s 32 of the Copyright Act 1968 (Cth) , copyright subsists in original literary, dramatic, musical, and artistic works, but only if there is a human author.⁶ The High Court in IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14⁷ confirmed that Australian copyright requires the exercise of independent intellectual effort by a human being. Purely mechanical or algorithmic outputs, where no meaningful human creative judgment was exercised, are not “original” in the copyright sense.

Applying that principle to generative AI: a raw image produced by Midjourney in response to a one-word prompt, or a document generated by ChatGPT with minimal human direction, very likely does not attract copyright protection in Australia. It falls into the public domain and anyone may copy it freely.

However, the position becomes more nuanced where a human meaningfully contributes through prompt crafting, selection, editing, arrangement, or refinement of the AI output. In those cases, copyright may subsist in the human’s creative choices, even if the underlying output was AI-assisted. This is an area of law that is developing rapidly and formal legislative reform is expected.⁸

Practical implications:

• If your business creates marketing materials using AI image generators, you may not own copyright in those images and competitors may be free to copy them.
• If you are copying AI-generated content from a competitor, you are unlikely to be infringing their copyright, but check whether any accompanying human-created text, layout, or branding is independently protected.
• If you are selling or licencing AI-generated content, be transparent with clients about the copyright status: they may not receive the exclusive rights they expect.

📎 Relevant legislation: Copyright Act 1968 (Cth) s 32 , original works; s 35 (ownership of copyright); s 10 (definitions) Case law: IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 https://www.hcourt.gov.au/cases-and-judgments/judgments/judgments-1998-current/icetv-pty-limited-v-nine-network-australia-pty-li See also: AI-Generated Content Copyright FAQ | Who Owns Code Generated by AI?

Caller Questions

Caller 1, Robert | Retaining Wall Responsibility

âš, ️ Topic: Robert’s neighbour purchased a vacant lot next to his block and developed it, building up the soil level above Robert’s property. Robert was required to put up a retaining wall as a result. Who bears legal responsibility for that wall? Relevant law: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ; Gold Coast City Council retaining wall policies

[Andrew] It depends on the height of the retaining wall and whether it sits on a common boundary or not.

[Robert] My neighbour came in later and built up above me. Are we responsible half each?

[Andrew] Is it on the actual boundary between both properties?

[Robert] Yes, on the border.

[Andrew] If it is not on the border, the responsibility rests with the owner on whose property it sits. But where a retaining wall is on or near the common boundary, responsibility generally rests with the owner who directly benefits from it, it is not automatically shared 50/50.

So if the wall was built to create a level yard for the property above yours, and its primary purpose is to prevent their soil from falling down onto you, the responsibility rests with the upper neighbour. If, on the other hand, you had cut into the slope to level your own yard, and the wall is holding back your own excavation, the responsibility rests with you.

There are also different rules depending on whether the wall is over 90 centimetres in height.

The other important point: QCAT does not have direct jurisdiction to hear retaining wall disputes unless there is also a dividing fence on top of the wall, and the fence needs to be removed or replaced as part of the retaining wall works. If there is no fence component, you may need to pursue the matter through QCAT’s minor civil dispute jurisdiction or through the Magistrates Court, depending on the amount in dispute.

Council is also a good avenue, Gold Coast City Council regulates retaining walls and will sometimes issue notices to fix if a wall is in disrepair and poses a risk.

[Robert] So if I had to put it up because they built up above me, I’m responsible?

[Andrew] If you put it up to prevent their soil falling onto you, I suspect the question of who benefits is more nuanced. But practically, if you constructed the wall, the responsibility for maintaining it likely sits with you unless you can reach an agreement with your neighbour or obtain a council order. This is a situation where getting specific legal advice early, before you have spent money, would be worthwhile.

What the Law Says

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) primarily deals with dividing fences and trees overhanging a boundary.⁹ It does not directly regulate retaining walls. As a result, retaining wall disputes sit in a legal grey area.

The general common law principle is that a retaining wall on or adjoining the boundary is the responsibility of the party who benefits from the wall retaining the soil on their side.¹⁰ If the upper owner elevated their land after the lower owner’s land was already established, the upper owner is generally responsible for containing their own fill. If the lower owner excavated, the lower owner created the condition requiring the wall.

Where both parties have contributed to the conditions requiring the wall, a shared responsibility arrangement may be negotiated. Council approval requirements for walls over 90 cm also introduce regulatory obligations that may include engineering certification.

📎 Relevant legislation: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) See also: Retaining Wall Responsibility FAQ (QLD) | Gold Coast City Council, Retaining Walls

Caller 2, John | Inter Vivos Gifts, Can Family Challenge Them After Death?

âš, ️ Topic: If a person with capacity gives money or assets to their children or other family members during their lifetime, can other family members challenge those gifts after the person dies? Relevant law: Succession Act 1981 (Qld) , family provision; general property law principles

[John] If someone is alive, has capacity, and gives money to their family members, is there any comeback from other family members after they die?

[Andrew] If someone is a competent adult, they can make decisions about their property the way they want to make them. If they give assets or money freely and clearly as part of their adult decision-making process, that is free and clear and there should not ordinarily be any comeback on those gifts.

Now, if they were coerced, if there was undue influence, or if there are other factors that call the capacity or voluntariness into question, then potentially there could be a challenge. But free and voluntary gifts made by a person with capacity? Those should stand.

[John] Do they need paperwork behind it?

[Andrew] I would definitely document it, particularly if it is a significant amount or something you are worried might be questioned later. If it could be queried, I would want a written record of the rationale for the gift, what was given, to whom, why, and the circumstances at the time.

What the Law Says

In law, a gift made during a person’s lifetime is known as an inter vivos gift, “between the living.” The fundamental principle is that a mentally capable adult has an absolute right to dispose of their assets as they choose during their lifetime, and those decisions generally cannot be overridden by disappointed potential heirs after death.

However, there are circumstances in which an inter vivos gift may be vulnerable to challenge:

1. Undue influence: If the donor’s free will was overborne by a person in a position of trust or power, equity may set the gift aside. The High Court in Bridgewater v Leahy (1998) 194 CLR 457¹¹ confirmed this principle in the context of a substantial property transfer by an elderly person to a family member.

2. Lack of capacity: A gift made by a person who lacked the mental capacity to understand its nature and effect may be void or voidable.

3. Notional estate provisions: Queensland’s Succession Act 1981 (Qld) does not currently include the “notional estate” provisions available in New South Wales, which can claw back certain assets disposed of before death for the purposes of a family provision order.¹² In Queensland, a family provision claim is generally limited to assets forming part of the deceased’s estate at the time of death.

Practical advice: For significant gifts, particularly where there are multiple potential beneficiaries who might later dispute them, have a solicitor prepare a simple deed of gift, obtain a contemporaneous medical capacity assessment if there is any risk of later challenge, and keep a clear written record of the donor’s reasons.

📎 Relevant legislation: Succession Act 1981 (Qld) , Pt 4 (family provision claims); Property Law Act 2023 (Qld) See also: Family Provision Claims FAQ (QLD) | Wills & Estates Practice Area

Caller 3, Anna | AI in Medical Consultations, What Happens to Your Health Data?

âš, ️ Topic: Anna attended a medical consultation where her specialist asked permission to use AI note-taking software. She consented, but wants to know: where does that health data go? Is it used to train the AI? Can it be shared? Relevant law: Privacy Act 1988 (Cth) , Australian Privacy Principles (APPs), in particular APP 3 (collection), APP 6 (use and disclosure), APP 8 (cross-border disclosure), APP 11 (security)

[Anna] I had a medical consultation yesterday afternoon with a specialist I hadn’t seen before. He asked whether I’d mind if he had AI turned on, I think it was taking notes. I said that was fine. But I’m wondering: does what was recorded get out to anybody else? Could it be used generally?

[Andrew] It all depends on the plan he has set up. When you use AI note-taking software, your conversation is being processed on someone else’s computer, that is, on the software provider’s servers. There are two critical questions you should ask any health professional who uses AI in a consultation:

1. Is the data stored in Australia, or does it go overseas? My firm uses dedicated legal transcription software, and one of our requirements is that the data is retained within Australia. The reason is practical: if something goes wrong, you can pursue the matter through Australian law. If data is sent overseas, that legal protection becomes much harder to enforce.

2. Is the data used for AI training purposes? As I explained earlier, LLMs are trained by ingesting large amounts of data. If the software provider is using clinical consultation recordings as part of their training dataset, your private health information could effectively be feeding an AI model that other people will use. Most reputable medical AI software providers have contractual restrictions against this, but it is worth asking.

If the data stays in Australia and is not used for training, it is functionally equivalent to a doctor dictating notes into a secure audio recorder that is then transcribed by trusted software. The practical privacy risk is very low. The notes will be used to accurately document your consultation, which actually produces better medical records than scribbled handwriting or post-visit dictation.

I know dentists doing the same thing, making running commentary throughout a procedure with AI recording in the background, so they have a complete record of every step.

[Anna] I think my main concern was just the privacy, I didn’t want it getting out generally.

[Andrew] Absolutely, and that is a very reasonable concern. Asking those two questions, data location and training use, will give you a good picture of the actual risk.

What the Law Requires

Under the Privacy Act 1988 (Cth) , health information is classified as sensitive information and attracts the highest level of privacy protection.¹³ The Australian Privacy Principles (APPs) impose the following obligations on health service providers and their software vendors:

• APP 3, Health information may only be collected if it is reasonably necessary for the primary purpose of the service (the consultation), and consent must be obtained for collection of sensitive information.
• APP 6, Health information collected for one purpose (clinical notes) may not be used or disclosed for a different purpose (AI training) without the patient’s consent, unless an exception applies.
• APP 8, Before disclosing personal information to an overseas recipient (such as a cloud server located outside Australia), the organisation must take reasonable steps to ensure the overseas recipient handles the information in accordance with the APPs.
• APP 11, The organisation must take reasonable steps to protect the information from misuse, interference, loss, and unauthorised access.

A medical practitioner who uses AI note-taking software without ensuring it complies with the APPs, or who has not disclosed the AI use clearly to the patient, risks a complaint to the Office of the Australian Information Commissioner (OAIC) .

Patients always have the right to ask their doctor to turn off the AI at any point, and to request access to any notes generated from their consultation under APP 12.

📎 Relevant legislation: Privacy Act 1988 (Cth) APPs 3, 6, 8, 11, 12 See also: OAIC, Guide to Health Privacy (May 2025) | AI Medical Consultation Privacy FAQ | Technology Law Practice Area

Closing Announcements

In Memory of Kathryn Bell (1987, 2026)

Before closing, Andrew shared some important personal news:

“I have some sad news and some happy news. The sad news is that my sister Kathryn passed away of bowel cancer on Monday evening. She was 38, and only 11 months from diagnosis. Her message was that she wanted to make sure that everyone gets checked early, so they don’t have to go through what she did. She was an incredibly kind person, and what she wanted to be remembered for was being kind. So if everyone can do something kind today without expectation of return, I would really appreciate that as a memory of Kathryn.”

Bowel cancer is the second most common cancer diagnosis in Australia. Early detection dramatically improves outcomes. If you are over 45, or have a family history of bowel cancer, please speak to your GP about a bowel cancer screening test. The National Bowel Cancer Screening Program provides free home testing kits to eligible Australians at cancerscreening.gov.au .

Congratulations to Ross Lee OAM

Andrew also congratulated his friend and colleague Ross Lee of Lee Lawyers , who was awarded the Medal of the Order of Australia (OAM) in the King’s Birthday Honours for founding My Community Legal , a free legal advice service operating out of Robina and Southport at which Andrew volunteers his time every Thursday evening. Congratulations, Ross. A well-deserved recognition.

Key Takeaways

1. AI is sophisticated autocomplete, not intelligence. Large language models predict statistically likely word sequences. They do not independently verify facts. They are programmed to always produce an answer, even when that answer is wrong. Understanding this limitation is essential for anyone using AI tools in a legal, medical, or professional context.
2. AI hallucinations are a serious risk in legal practice. AI tools regularly generate plausible-sounding but entirely fictitious case names, citation numbers, and section references when asked about Australian law. Every AI-generated legal authority must be independently verified before use. Filing unverified AI-generated references in court proceedings carries professional conduct consequences for lawyers and adverse cost risks for all parties.
3. AI-generated content is generally not protected by copyright in Australia. Under s 32 of the Copyright Act 1968 (Cth) and following IceTV [2009] HCA 14, copyright requires human authorship and independent intellectual effort. Purely AI-generated images, articles, or code without meaningful human creative input fall into the public domain and are freely copyable.
4. Retaining wall responsibility follows the benefit, not the boundary. The owner who benefits from the wall retaining soil on their side generally bears responsibility for it in Queensland. QCAT does not have direct jurisdiction over retaining wall disputes unless a dividing fence is also in dispute. Council can be an alternative avenue for enforcement.
5. Inter vivos gifts by a person with capacity are generally final. A competent adult can freely give away their assets during their lifetime, and those gifts cannot ordinarily be reclaimed through the estate after death. Document significant gifts with a deed of gift, a record of reasons, and if appropriate, a capacity assessment.
6. Your health data has strong legal protections when AI is used in a consultation. Under the Privacy Act 1988 (Cth) , health information is sensitive information subject to the Australian Privacy Principles. You have the right to ask your doctor where AI-generated notes are stored, whether your data is used for AI training, and to access any records generated about you.
7. Get bowel cancer screening done early. In memory of Kathryn Bell, please speak to your GP or visit cancerscreening.gov.au .

About This Programme

Legal Matters is broadcast live on 4CRB every Tuesday at 9:00 AM and is hosted by Colin Balewski. Legal insights are provided by Andrew Bell of Bell & Senior Lawyers, Southport, Gold Coast.

A recording of this programme and all resources discussed are available at bellsenior.com.au and 4crb.com .

Bell & Senior Lawyers, (07) 5532 8777, bellsenior.com.au

Footnotes

Key Topics

• Technology Law, The Big Picture: What technology law actually covers and why it is one of the most rapidly evolving areas of Australian law.
• Andrew Bell’s Technology Background: Andrew’s dual career as a large-scale computer systems designer and solicitor, his role on the Queensland Law Society’s Privacy, Data, Technology and IP Law Committee, his position on the Australian Computer Society’s AI Committee, and his current PhD in cybersecurity law.
• The Internet’s Legal Origins: The 1991 Cubby v CompuServe decision (the “library” model) and the 1995 Stratton Oakmont v Prodigy decision (the “publisher” model), and the impossible paradox they created for online platforms.
• Section 230 of the Communications Decency Act 1996 (US): How US Congress resolved the CompuServe/Prodigy paradox, and why Andrew argues Facebook, Twitter, and YouTube could not have existed without it.
• The Digital Millennium Copyright Act 1998 (US): How s 512 introduced the “notice and takedown” system for copyright-infringing content.
• Australia’s Safe Harbour Provisions: How the 2004 Australia, United States Free Trade Agreement required Australia to incorporate DMCA-style provisions, but only for carriage service providers, leaving the status of large online platforms in a legal grey area.
• Caller Tracy, Online Auction Car Dispute: Buying a car online listed as a top-of-the-range model that turned out to be a lower variant, and the practical limits of “as is, where is” auction conditions.
• Caller Joanne, Different Pens on a Will: A self-drafted Will where the two witnesses used different-coloured pens, the testator now has dementia, and whether the Will is still valid.
• Caller John, Dementia and Legal Capacity: Who has the authority to diagnose dementia, and how does a legal capacity assessment differ from a medical one?
• Caller Debbie, Suspected Will Tampering: A terminally ill woman’s niece allegedly obtained a blank-signed Will with the intention of filling in the contents herself, leaving the entire estate to herself.

Listener FAQ Highlighted In This Episode

• Can I challenge a Will signed by someone with dementia?
• What are the witnessing requirements for a valid Will in Queensland?
• What are my rights when buying at an auction in Queensland?
• What is undue influence and can it invalidate a Will?
• How does Australia’s safe harbour law protect online platforms?

Listen to the full discussion above.

Key Takeaways

1. Technology law is broad and still evolving. From data privacy and cyber security to AI liability and online defamation, technology law affects every Queensland business and individual who uses the internet. The rules are not settled and are developing rapidly.
2. The foundational cases matter. The 1991 Cubby v CompuServe and 1995 Stratton Oakmont v Prodigy decisions created an impossible paradox for online platforms. The US resolved this with s 230 of the Communications Decency Act 1996. Australia has not enacted an equivalent.
3. Australia’s safe harbour provisions are narrow. Safe harbour protections under Part V, Division 2AA of the Copyright Act 1968 (Cth) apply to telcos and ISPs, not to large social media platforms and general websites. If you operate a platform where users post content, seek legal advice about your exposure.
4. Buying at auction is "as is, where is." Auction houses disclaim liability for descriptions where buyers have had a reasonable opportunity to inspect before bidding. Always inspect in person, read the terms and conditions carefully, and verify vehicle specifications against the roadworthy certificate.
5. Will witnessing formalities are more important than they appear. Minor technical irregularities, different pen colours, missing staples, or any doubt about whether witnesses were physically present, can attract scrutiny at probate or become grounds for challenge. Have your Will professionally drafted by a solicitor.
6. Dementia does not automatically invalidate an existing Will. A Will signed before a diagnosis, when the testator had capacity under the Banks v Goodfellow test, remains valid. But once dementia is diagnosed, executing a fresh Will becomes extremely difficult to defend. Obtain supporting letters from witnesses and medical professionals while memories are fresh.
7. Capacity is decision-specific and time-specific. Legal capacity is not a diagnosis, it is a snapshot assessment at the time a specific document is signed. For Enduring Powers of Attorney, a written medical opinion from a geriatrician remains the most reliable evidence a court will accept.
8. A blank-signed Will filled in afterwards is not valid, and may be criminal. Under the Succession Act 1981 (Qld) , a Will must be complete before it is executed. Completing a blank-signed Will with intent to benefit oneself may constitute forgery of a testamentary instrument under s 488 of the Criminal Code Act 1899 (Qld) , carrying a maximum penalty of 14 years imprisonment.
9. If you suspect Will fraud or undue influence, act before probate is granted. The window to contest a probated Will in Queensland is approximately six months from the date of the grant. Obtain legal representation immediately.

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Annotated Transcript

Technology Law, Setting the Scene

📢 Topic: What is technology law and why does it matter for Queensland residents and businesses? Relevant law: Legal Profession Uniform Law Application Act 2021 (QLD) , governing the use of terminology like specialist

[Colin] Andrew, you have a background in technology as well as law. Can you set the scene?

[Andrew] Absolutely. To give a sense to those who may not know, I cannot describe myself as having a specialisation in this area, because there are strict rules under the Legal Profession Uniform Law governing the use of that term, but I spent a large part of my career designing large, complex computer systems before I became a solicitor, and I am still developing software right now. I sit on the Queensland Law Society’s Privacy, Data, Technology and Intellectual Property Law Committee, and on the Australian Computer Society’s Committee for Artificial Intelligence, and I am doing a PhD in cybersecurity law.

Technology law is a whole suite of things: what happens if you get hacked, how you can responsibly use AI, what protections exist over software and content you put online. One of the great advantages of computers is that they can automate and help lots of people very quickly. At the same time, when something goes wrong, it can go wrong for a lot of people very quickly. It is a very emerging area of law and it is not particularly settled.

The Internet’s Legal History: From CompuServe to Section 230

📢 Topic: How did courts determine who is liable for what users post online? The foundational cases. Relevant law: Communications Decency Act 1996 (US) s 230; Digital Millennium Copyright Act 1998 (US) s 512

[Andrew] When the internet first emerged, you had to dial up to individual computers. Banks had dial-up modems. Companies like CompuServe, Prodigy, and AOL effectively launched their own curated mini-internets in the United States. AOL was famously mailing floppy disks, and later CDs, to anyone who would take one.

What happened when users started posting content that was potentially defamatory? Two foundational cases emerged in America in the early 1990s that created a serious legal paradox.

The Library Model: Cubby, Inc v CompuServe, Inc (1991)

In Cubby, Inc v CompuServe, Inc, 776 F Supp 135 (SDNY, 1991),¹ a New York federal court considered a claim against CompuServe for defamatory content posted in a user-run forum called “Rumorville.” CompuServe had no editorial control over that forum, it was operated independently. The court held that CompuServe was analogous to a library or bookstore: a passive distributor of information rather than a publisher. Just as a library is not liable for the content of every book on its shelves, CompuServe was not liable for the defamatory posts of its users.

The Publisher Model: Stratton Oakmont, Inc v Prodigy Services Co (1995)

Then, in 1995, the opposite result was reached in Stratton Oakmont, Inc v Prodigy Services Co, 23 Media L Rep 1794 (NY Sup Ct, 1995).² Prodigy had marketed itself as a Christian, family-friendly platform. It had community guidelines, content filters, and blocked parts of the internet it disagreed with. When an anonymous user posted defamatory content about a stockbroking firm on Prodigy’s financial message boards, the court found that because Prodigy exercised editorial control, it was no longer a passive distributor. It was more like a newspaper. And newspapers, as publishers, are responsible for what they publish. Prodigy was held liable.

[Andrew] So now we had two conflicting rules: do nothing and you are safe; try to moderate your platform and do the right thing, and you are liable. The industry found this impossible to operate on. Knowing American politics, there would have been significant lobbying behind the scenes.

Section 230 of the Communications Decency Act 1996 (US)

Eventually, the United States Congress resolved the paradox by enacting the Communications Decency Act 1996 (US), 47 USC § 230.³ Section 230 declared, in plain terms, that no online platform would be treated as the publisher or speaker of third-party content. They sided firmly with the library model. I would argue that Facebook, Twitter, and YouTube, none of which yet existed, could not have come into existence without that single piece of legislation. It gave platforms the freedom to operate at scale without facing liability for every user’s post.

The Digital Millennium Copyright Act 1998 (US) and the Notice-and-Takedown System

Two years later, the United States enacted the Digital Millennium Copyright Act 1998 (US) (DMCA).⁴ Section 512 is the provision most relevant to Australian users and businesses. It provides that if a user uploads content that infringes someone’s copyright, the platform hosting it will not be liable, provided it complies with a formal notice of takedown when one is received. You may have seen “DMCA” referenced on Facebook posts or YouTube videos: this is the mechanism by which the copyright owner can report infringing content. If the platform receives a valid takedown notice and does not act, it can then be held liable. But the system allows platforms to host vast amounts of user-generated content without pre-screening every upload.

[Colin] We have a real-world example here at 4CRB. We invite local not-for-profit organisations to post their community events on our website. If someone uploads a copyrighted photograph, who is in trouble?

[Andrew] Potentially 4CRB. If you comply with a DMCA-style takedown notice you may be able to limit that liability, but once you are exercising any editorial control over the site, your exposure increases. It is a live issue that has affected us before and we had to make some apologies and sort ourselves out.

📎 See also: Online Defamation in Queensland | Technology Law Practice Area

Australia’s Safe Harbour Framework

📢 Topic: Did Australia adopt the same protections for online platforms as the United States? Relevant law: Copyright Act 1968 (Cth) Part V, Division 2AA , safe harbour provisions for carriage service providers

[Colin] Has Australia followed the American example, or have we had to develop our own approach?

[Andrew] Partially. You may recall that the Australia, United States Free Trade Agreement was signed in 2004 under the Howard Government.⁵ One of the requirements of that agreement was that Australia incorporate elements of the American DMCA into domestic law. We did, but we did not incorporate them completely, which is a significant limitation.

Australia has safe harbour provisions in Part V, Division 2AA of the Copyright Act 1968 (Cth) , broadly modelled on the US system. However, the Australian provisions explicitly apply only to what is defined as a carriage service provider, that is, telcos (such as Telstra and Optus) and internet service providers (the companies that connect you to the internet). The safe harbours do not explicitly cover the large platforms: Facebook, YouTube, Google, and similar services.

This means that the position of major online platforms under Australian copyright and defamation law is not completely settled, and it has real implications for any Australian business or individual who uses those platforms to host user-generated content.

📎 Relevant legislation: Copyright Act 1968 (Cth) Part V, Division 2AA , limitation on remedies against carriage service providers See also: Online Defamation FAQ (QLD) | Technology Law Practice Area

Caller Questions

Caller 1, Tracy | Online Car Auction Dispute

âš, ️ Topic: Car purchased at online auction described as top-of-range variant; delivered vehicle was a lower model. Roadworthy certificate confirmed lower variant. No photos of the missing feature (sunroof) were included in the listing. Relevant law: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law, consumer guarantees and auction exemptions)

[Colin] We’ve got our very first caller this morning. Good morning to Tracy.

[Tracy] This is a done deal already, it’s completed. But I purchased a car at online auction and the model they quoted isn’t what they sold me. I won the auction, paid for it, picked it up, then went to look for my sunroof and it wasn’t there. When I got home, I looked at the receipt, which said it was top of the range, but the roadworthy said it was one model down. It had some features of the top-of-range, but not all.

[Andrew] Was the sunroof visible in the photos?

[Tracy] They didn’t have any photos of the sunroof area. That’s why I didn’t pick up on it. And because I didn’t go to the auction to check it out first, it didn’t register.

[Andrew] So unfortunately, if you buy at auction, it is generally “as is, where is”, the auctioneer takes no liability for descriptions, provided they have given you the opportunity to inspect beforehand. If it was through Pickles or one of the large auction groups, they typically allow a number of days where you can go in and physically inspect the vehicle. Whether you did or didn’t take them up on that opportunity, if it was available, your ability to seek a remedy is quite limited. I would strongly suggest you look at their terms and conditions. Have you asked them whether they would take it back and re-auction it?

[Tracy] Yes, they would, but they wouldn’t pay the expenses of getting it back there.

[Andrew] Well, it is what you have got to decide, whether that is worth it to you. But I think that is fairly generous of them, because I do not think they are strictly obligated to offer it. Auctions are a special category of sale: similar rules apply to property auctions, where you receive disclosure material beforehand and then take it “as is” once your bid is accepted and the hammer falls.

What the Law Says

Under the Competition and Consumer Act 2010 (Cth) Sch 2 , the Australian Consumer Law (ACL), consumer guarantees apply broadly to most retail sales. However, s 64A of the ACL provides that those guarantees can be excluded or modified in auction sales of second-hand goods conducted by a genuine auctioneer who is not the manufacturer of the goods.⁶ More relevantly, auction houses routinely incorporate express “as is, where is” conditions in their terms, and courts have consistently upheld those terms where the buyer has been given a reasonable pre-auction inspection opportunity.

If the listing had positively and unambiguously warranted the vehicle as a specific top-of-range model and that representation was false, a stronger argument might arise under s 18 of the ACL (misleading or deceptive conduct in trade or commerce). However, where photographs of the exterior were provided, a physical inspection window was available, and the specific missing feature was not depicted or expressly warranted, that case becomes significantly harder to sustain.

Tracy’s situation, where she accepted the auction house’s offer to re-list the vehicle, represents a practically sensible outcome, and likely reflects the full extent of the available remedy in the circumstances.

📎 Relevant legislation: Competition and Consumer Act 2010 (Cth) Sch 2 , s 18 (misleading conduct); s 56 (guarantee as to correspondence with description); s 64A (modification of guarantees at auction) See also: Online Shopping Refund Rights in Queensland | Consumer Law Practice Area

Caller 2, Joanne | Will Witnessing, Different Coloured Pens

âš, ️ Topic: Self-drafted Will re-typed from a deceased parent’s Will. Two witnesses signed, one in black pen, one in blue pen. Testator has since been diagnosed with dementia and cannot sign a new Will. Relevant law: Succession Act 1981 (Qld) s 10 , formal requirements for execution of a valid Will

[Colin] We have Joanne on the line.

[Joanne] You’re probably going to tell me off for doing this, but…

[Andrew] That’s not a nice way to start the conversation, Joanne. If everyone did everything perfectly, I wouldn’t have a job.

[Joanne] I retyped my mother’s Will and got her GP to sign as a witness, and the nurse. Then I found out the doctor signed it in black pen and she signed it in blue pen. Is that a problem?

[Andrew] It is potentially a problem. In Queensland, anyone can draft a Will, and you need two adults who are not beneficiaries under the Will to sign as witnesses, all present together in the same room when the Will is signed. Typically everyone uses the same pen, so there is no question whether they were genuinely all present at the same moment. If different pens were used, the Registrar may raise the issue when you apply for probate. You may need to provide an affidavit or statutory declaration from the GP or the nurse confirming they were in the same room. Using different pens is not technically unlawful, but it can appear suspicious if someone decides to dispute the Will.

[Joanne] Should I get the GP to do that now, or wait?

[Andrew] Is your mother still with us?

[Joanne] Yes, but she has dementia now.

[Andrew] Ah. In that case she cannot sign a fresh Will. I would ask the doctor to write a letter now, while the memory is fresh and while the doctor is still available, confirming the circumstances and who was present when the Will was signed. Keep that letter with the Will. When you eventually have to submit the Will for probate, include it as supporting evidence. That is the best protection you can get at this point.

What the Law Says, Will Execution Formalities

Under s 10 of the Succession Act 1981 (Qld) , a Will is formally valid if it is in writing, signed at the foot by the testator (or by another in the testator’s presence and at the testator’s direction), and that signature is made or acknowledged in the simultaneous presence of at least two witnesses who each then sign in the testator’s presence.⁷ There is no statutory requirement for a particular pen colour. However, the simultaneous presence of all parties is the key legal requirement, and different pen colours can give rise to a factual inference that witnesses did not all attend at precisely the same time.

On dementia and re-execution: a diagnosis of dementia does not automatically invalidate a Will signed while the testator still had capacity. Testamentary capacity is assessed at the date of execution, not the date of death. Under the common law test in Banks v Goodfellow (1870) LR 5 QB 549,⁸ a testator has capacity if they understand (1) the nature and effect of making a Will; (2) the extent of the property they are disposing of; and (3) the claims of those who might reasonably expect to benefit. A Will made before a dementia diagnosis, when the testator demonstrably had capacity, remains valid. However, once dementia has been diagnosed, executing a fresh Will becomes extremely difficult to defend against challenge.

📎 Relevant legislation: Succession Act 1981 (Qld) s 10 , execution of Wills See also: Will Witnessing Requirements FAQ | Will Kits vs Solicitor-Drafted Wills | Episode 3, Wills & Estates

Caller 3, John | Dementia and Legal Capacity, Who Decides?

âš, ️ Topic: Who has the legal and medical authority to determine that someone has dementia? What is the difference between a medical diagnosis and a legal capacity assessment, and what happens to a driver’s licence? Relevant law: Powers of Attorney Act 1998 (Qld) , capacity to give an Enduring Power of Attorney; Guardianship and Administration Act 2000 (Qld)

[Andrew] It all depends on the context. For a medical diagnosis of dementia, it is typically a geriatrician or a panel of clinicians who specialise in older medicine. Legally, the test is different. A solicitor witnessing a document does not diagnose dementia. They ask enough questions to be satisfied that you meet the legal capacity test, that is, whether you understand the nature and consequences of the particular decision you are making at that moment.

Capacity can come and go. I was involved in a significant case that went to the Supreme Court that discussed exactly that point. Someone may understand what is happening today but not next week. For the purpose of an Enduring Power of Attorney, the Powers of Attorney Act 1998 (Qld) provides that the EPOA becomes operative when a medical professional certifies in writing that in their professional opinion the principal has lost capacity. That certification is generally accepted by the courts as triggering the attorney’s authority to act.⁹

[John] Who decides, a solicitor, a doctor, or a specialist?

[Andrew] My advice to clients who want to enact an Enduring Power of Attorney, often because they are concerned about a parent, is to see a geriatrician who specialises in capacity assessments and to have the full suite of tests conducted. There are shorter screening tools: the MoCA (Montreal Cognitive Assessment) and the MMSE (Mini-Mental State Examination) indicate cognitive decline, but for a definitive determination, you want the full geriatric assessment. If you or a family member disagrees with a medical finding, you are always entitled to seek a second opinion.

[John] But what about when a doctor tells someone on the spot that they’ve lost their licence?

[Andrew] Dementia is a slippery slope, John. I have seen a number of cases involving this, around the station and in my family. If you want a second medical opinion, you are entitled to seek one. But the doctors do know what they are talking about, and their obligation to report to the transport authority is a public safety matter.

What the Law Says, Capacity Assessments and Driving

Legal capacity is not a binary diagnosis. Under Queensland law, capacity is decision-specific and time-specific: a person may retain capacity to decide where they want to live but lack capacity to execute a Will or Power of Attorney on the same day. The leading Queensland authority, Frizzo v Frizzo [2011] QCA 308,¹⁰ confirms that capacity assessments must focus on the individual’s mental state at the time the specific transaction occurred, and that brief periods of clarity (“lucid intervals”) during an otherwise deteriorating condition can be legally sufficient.

On driving licences: under s 131 of the Transport Operations (Road Use Management) Act 1995 (Qld) , a medical practitioner who forms the opinion that a patient is unfit to drive has a statutory obligation to notify the Department of Transport and Main Roads.¹¹ The Department may then suspend or cancel the licence. This is a medical and public safety decision, not a legal capacity determination, and while it can be devastating for the person affected, it is entirely separate from any assessment of capacity to execute legal documents.

📎 Relevant legislation: Powers of Attorney Act 1998 (Qld) s 41 , when enduring power of attorney becomes operative; Guardianship and Administration Act 2000 (Qld) , assessment of capacity; Transport Operations (Road Use Management) Act 1995 (Qld) s 131 See also: Enduring Powers of Attorney FAQ | Episode 2, Enduring Powers of Attorney

Caller 4, Debbie | Alleged Will Tampering and Undue Influence

âš, ️ Topic: A terminally ill woman’s niece obtained her aunt’s signature on a blank Will. The niece has since filled in the Will leaving the entire estate to herself, excluding another surviving niece overseas. Three witnesses are prepared to say the deceased wanted the estate divided equally. Relevant law: Succession Act 1981 (Qld) , validity, undue influence, and intestacy; Criminal Code Act 1899 (Qld) s 488 , forgery of a testamentary instrument

[Colin] We’re moving on to Debbie.

[Debbie] A very dear friend of mine passed away a few months ago. She had a niece here in Queensland looking after her. She was very sick and nearly bedridden. The niece got her to sign a blank Will and said she had a policeman friend in New South Wales who would sign it as a witness. She told her aunt: "You tell me what you want to put in the Will and I’ll write it in." The lady has since passed away. The other niece overseas has contacted me. They don’t think this Will is legal. The niece here has filled it in leaving everything to herself.

[Andrew] Has the Will been submitted for probate yet?

[Debbie] No, not yet.

[Andrew] Then I would strongly recommend both parties obtain legal representation immediately, before it is submitted. Once probate is granted, there is a strict timeframe, approximately six months, to dispute the Will. Under the Succession Act 1981 (Qld) , if no valid Will exists and there was no earlier Will, the rules of intestacy apply. If there are two equal surviving relatives, the estate would typically be divided equally between them.

[Debbie] There are three people who heard her say, before she signed it, that she wanted the estate divided equally. But the niece here has made it out entirely to herself.

[Andrew] You cannot fill in a Will after it has been signed. There are strict rules about modifying Wills, and any alteration must itself be executed with full formalities, signed by the testator and witnessed by two adults. A blank-signed document filled in by someone else after the fact is not a valid Will. On the face of what you have described, this could be challenged on the grounds of:

1. Formal invalidity, the document was not complete at the time it was signed;
2. Undue influence, a seriously ill, dependent testator may not have been acting freely;
3. Forgery of a testamentary instrument, filling in a blank-signed Will with intent to benefit oneself may constitute a criminal offence carrying up to 14 years imprisonment.

I strongly recommend that both parties seek legal advice before this proceeds any further.

What the Law Says, Will Tampering, Undue Influence, and Intestacy

Under s 488 of the Criminal Code Act 1899 (Qld) , forgery of a testamentary instrument, whether the testator is living or dead, is a crime carrying a maximum penalty of 14 years imprisonment.¹² Forgery includes making a false document with intent to defraud. Completing the contents of a blank-signed Will after the testator’s death, with the intention of conferring a benefit on yourself, is squarely within conduct that provision is designed to capture.

Separately, a Will obtained by undue influence is voidable. Undue influence arises in equity where the testator’s independent will was overborne by pressure from a person in a position of trust or power. The classic pattern, a vulnerable, seriously ill person living under the control of a sole carer who stands to benefit under the Will, is precisely what courts scrutinise most carefully. The leading Queensland case on undue influence in testamentary matters is Bridgewater v Leahy (1998) 194 CLR 457,¹³ in which the High Court confirmed that the presumption of undue influence can arise from the nature of the relationship itself, even without direct evidence of threats or coercion.

If the Will is declared invalid and no earlier valid Will exists, the estate is distributed under the intestacy rules in Sch 2 to the Succession Act 1981 (Qld) . Where two nieces are the nearest surviving relatives in equal degree, the estate would ordinarily pass to them in equal shares.

📎 Relevant legislation: Succession Act 1981 (Qld) s 10 , formal requirements; Sch 2 , intestacy rules; Criminal Code Act 1899 (Qld) s 488 , forgery of a testamentary instrument See also: What is Undue Influence in a Will? (QLD) | Intestacy, Who Inherits Without a Will? | Episode 3, Wills & Estates

About This Programme

Legal Matters is broadcast live on 4CRB every Tuesday at 9:00 AM and is hosted by Colin Balewski. Legal insights are provided by Andrew Bell of Bell & Senior Lawyers, Southport, Gold Coast.

A recording of this programme and all resources discussed are available at bellsenior.com.au and 4crb.com .

Bell & Senior Lawyers, (07) 5532 8777, bellsenior.com.au

Footnotes

Episode Introduction

Episode 15 of Legal Matters on 4CRB is dedicated to legal myths, those confident assertions made in coffee shops, at barbecues, and in pub conversations that sound plausible but turn out to be wrong. Andrew Bell chose the theme because the law changes over time, popular culture often misrepresents it, and what seems logical or fair is not always what Parliament has enacted. The result is a generation of Australians who believe they understand their rights but are working from outdated or incorrect information.

Legal Myths Covered This Episode

1. Myth 1: “If you win in court, the other side automatically pays all your legal fees.” Reality: Costs orders rarely cover the full amount spent, and collecting on them requires further effort. Relevant law: Uniform Civil Procedure Rules 1999 (Qld), general costs discretion principles.

2. Myth 2: “A barrister and a solicitor are basically the same thing.” Reality: Queensland has a split profession. Solicitors manage client work and strategy; barristers focus on court advocacy and specialist advice. Relevant law: Legal Profession Act 2007 (Qld).

3. Myth 3: “You cannot represent yourself in court.” Reality: Self-representation is legally permitted in any court in Australia, though courts expect self-represented parties to comply with all procedural rules.

4. Myth 4: “If your lawyer gives bad advice, you automatically get your money back.” Reality: A successful claim against a lawyer requires proof of negligence and that the negligence caused an actual loss.

5. Myth 5: “There is no point complaining about a lawyer because nothing happens.” Reality: The Legal Services Commission in Queensland investigates all complaints and has the power to suspend, fine, or remove a legal practitioner from practice.

6. Myth 6: “You have to prove fault to get divorced in Australia.” Reality: Australia has had a no-fault divorce system since 1975. Twelve months of separation is the only requirement. Relevant law: Family Law Act 1975 (Cth) s 48.¹

7. Myth 7: “After living together for two years, de facto partners automatically get half of everything.” Reality: Two years establishes eligibility to apply for a property settlement; it does not create an entitlement to 50 per cent. Relevant law: Family Law Act 1975 (Cth) s 90SB.²

8. Myth 8: “If a parent does not pay child support, the other parent can stop them seeing the children.” Reality: Child support and parenting arrangements are legally separate. Withholding children is not a lawful enforcement mechanism. Relevant law: Child Support (Assessment) Act 1989 (Cth); Family Law Act 1975 (Cth) pt VII.³

9. Myth 9: “A parenting plan is legally binding just like a court order.” Reality: A parenting plan is not enforceable. Only consent orders approved by the court carry legal force. Relevant law: Family Law Act 1975 (Cth) s 63C.⁴

10. Myth 10: “The mother automatically gets custody of the children.” Reality: Australian family law applies a best-interests test. No automatic presumption in favour of either parent exists. Relevant law: Family Law Act 1975 (Cth) s 60CA.⁵

11. Myth 11: “If you die without a will, everything goes to the government.” Reality: Intestacy rules distribute the estate to eligible relatives. Government inheritance is a last resort only. Relevant law: Succession Act 1981 (Qld) pt 3.⁶

12. Myth 12: “You can make changes to your will by writing on it and initialling them.” Reality: Handwritten margin notes can confuse or invalidate a will and trigger expensive litigation. Relevant law: Succession Act 1981 (Qld) s 10.⁷

13. Myth 13: “Your will controls everything you own.” Reality: Superannuation and jointly held property often pass outside the will entirely. Relevant law: Succession Act 1981 (Qld); Superannuation Industry (Supervision) Act 1993 (Cth) s 59.⁸

14. Myth 14: “If you are left out of a will, there is nothing you can do.” Reality: Eligible persons can make a family provision claim if adequate provision was not made for them. Relevant law: Succession Act 1981 (Qld) pt 4.⁹

15. Myth 15: “A will kit is just as good as seeing a lawyer.” Reality: A correctly executed will kit is legally valid, but complex circumstances such as blended families or business interests often produce problems that a lawyer would have anticipated.

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Annotated Transcript

Court Costs and the “Loser Pays” Assumption

One of the most widespread beliefs about litigation is that winning in court means a complete financial recovery, including every dollar paid in legal fees. Andrew explained that while the principle “costs follow the event” does have a basis in Australian civil procedure, it does not mean full reimbursement. A costs order is typically calculated on a standard or indemnity basis and will rarely match what a client actually paid their own solicitor throughout the proceedings.¹

The situation in QCAT is even more stark. Colin noted from earlier episodes that QCAT operates without any costs recovery at all: each party pays its own costs regardless of the outcome, with only the initial filing fee forming part of the process. Andrew confirmed this, noting that parties going to QCAT need to understand from the outset that a win on the merits does not come with a cheque to cover their trouble.

Barristers and Solicitors: A Split Profession

Many Australians assume that all lawyers perform the same function regardless of their title. Andrew clarified that Queensland retains a split profession, unlike some other states where the two roles have been fused. A solicitor is the professional who works directly with the client, manages documentation, develops legal strategy, and can appear in court including at Supreme Court level. A barrister is engaged for specialised court advocacy or detailed advice in a specific area of law and does not typically hold a direct relationship with the client.¹⁰

The distinction has practical implications for cost and workflow. Engaging a barrister for a complex matter adds a layer of specialist expertise but also adds expense. Andrew noted that solicitors can and do appear in court regularly and that barristers are not always necessary, particularly in matters that do not require specialist advocacy.

Self-Representation in Court

The myth that a person has no right to represent themselves in court is simply incorrect as a matter of law. Andrew confirmed that self-representation is permitted in any court in Australia. The practical problem is not the right but the expectation that follows from it: courts treat self-represented parties the same as any other litigant, which means full compliance with procedural rules, evidence rules, filing deadlines, and court etiquette.

Suing a Lawyer for Bad Advice

The belief that poor legal advice automatically entitles a client to their money back misunderstands the law of professional negligence. To succeed in a claim against a solicitor, a claimant must establish that the solicitor fell below the standard of care expected of a reasonably competent practitioner in that area, and that this failure directly caused a quantifiable loss. Losing a case does not, by itself, demonstrate either element.¹

Andrew pointed out that pursuing such a claim typically requires engaging another solicitor, obtaining expert opinion on the standard of care, and running what can become protracted litigation. The practical burden means that only genuinely strong cases are worth pursuing.

Complaining About a Lawyer

A common piece of cynicism holds that lodging a complaint about a lawyer is pointless because nothing will happen. Andrew firmly rejected this. The Legal Profession Act 2007 (Qld) establishes the Legal Services Commission as an independent body with a statutory obligation to investigate complaints about any Queensland legal practitioner.¹⁰ The Commission’s powers extend to disciplinary proceedings, fines, conditions on practice, suspension, and removal from the roll.

No-Fault Divorce in Australia

The belief that divorce in Australia requires evidence of wrongdoing, such as adultery or cruelty, is a remnant of the pre-1975 legal landscape and of American television drama. The Family Law Act 1975 (Cth) abolished fault-based divorce entirely.¹ The sole ground for divorce in Australia is irretrievable breakdown of the marriage, demonstrated by twelve months of continuous separation.¹

Andrew noted that Australia’s shift in 1975 was a deliberate policy decision to remove the court from the role of adjudicating marital fault, which had created incentives for fabrication and significant emotional damage. Some jurisdictions, including parts of the United States, still attach financial consequences to fault, but Australia has taken the position that the decision to end a marriage is a personal one and the state’s only role is to confirm that the separation is genuine and durable.

De Facto Property Rights After Two Years

The myth that two years of cohabitation automatically entitles a de facto partner to half of all assets is persistent and potentially damaging. Andrew explained that the two-year threshold in Australian family law serves a different function: it establishes the minimum duration of a de facto relationship needed to trigger eligibility to apply to a court for a property settlement.² Whether any order is made, and for what amount, is then determined by a detailed assessment of contributions (financial and non-financial), future needs, the presence of children, and any disparity in earning capacity.

The court retains broad discretion and applies no formula that guarantees a 50/50 outcome. A partner who entered the relationship with substantially greater assets, or who made the dominant financial contribution throughout, may well see that recognised in a settlement that departs significantly from equal division.

Child Support and Parenting Arrangements: Two Separate Systems

The belief that a parent can lawfully withhold children from the other parent as a response to unpaid child support is one Andrew said he encounters regularly and which causes significant harm. Australian law treats child support and parenting arrangements as entirely independent legal frameworks. Non-payment of child support is addressed through the Child Support Agency and, if necessary, through enforcement proceedings in the Federal Circuit and Family Court.³ It has no bearing on a parent’s legal entitlement to spend time with their children.

Caller: John, Separation, Surnames and a Delayed Divorce

John called in with a cluster of practical questions arising from his son’s marriage breakdown. His son had separated from his wife roughly twelve months earlier but had not yet started the formal divorce process, and John was concerned about his own estate being exposed to a claim by the estranged daughter-in-law.

Andrew explained that people are not compelled to divorce even after separating, but that delay creates ongoing legal exposure. While the couple remain married, the estranged spouse retains the potential to make a family provision claim against the estate of a parent-in-law if she can establish that she was in a relevant relationship and had an expectation of benefit. Andrew’s practical advice was for John to clearly document his intentions in his own will and for his son to begin the divorce process if the marriage is genuinely over.

John also raised questions about his daughter-in-law retaining the family surname after separation, which Andrew clarified is entirely her right. A person can choose to keep, discard, or adopt a surname at marriage and again after divorce, and no other party has standing to require a change.

John’s second question concerned a no-win no-fee personal injury claim his son had been pursuing for years without resolution. Andrew noted that personal injury litigation, governed in Queensland by the Personal Injuries Proceedings Act 2002 (Qld), involves a structured pre-litigation process that both parties must follow before court proceedings can be issued.¹¹ While the delay was frustrating, the appropriate response was to seek an update from the lawyers and, if the process had been completed, to instruct them to commence proceedings rather than continue waiting for a voluntary settlement.