Legal Matters: Self-Defence, Defending Others and Estate Planning
Self-defence in Queensland is about stopping an unlawful assault, not punishing the person who started it. In Episode 35 of Legal Matters, Andrew Bell and Colin Balewski examine reasonable force, when defensive action becomes retaliation, helping another person and the stricter limits on force used only to protect property.
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
- Section 271 addresses unprovoked assault, while s 272 applies a stricter framework where the defender provoked the conflict.
- There is no automatic entitlement to return a blow merely because another person struck first.
- 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.
- Once force is no longer needed for defence, the justification ends. Anger, intoxication and retribution do not extend it.
- Section 273 allows a person acting in good faith to use a like degree of lawful force to aid someone under assault.
- Calling 000, moving to safety and observing carefully may be safer than entering an uncertain confrontation.
- Sections 274 and 277 permit limited force in property and trespass situations, but do not authorise grievous bodily harm under those provisions.
- 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.