Latest Legal Blogs
What Do the New Testamentary Trust Rules Mean for Your Family?
“So my will sets up a Testamentary Discretionary Trust on my death… what do the Government’s recent announcements mean for my family?” This is a question we are now increasingly being asked. Testamentary discretionary trusts (TDTs) have long been considered a gold?standard estate planning tool—providing flexibility, asset protection, and significant tax advantages for families after death. The Federal Government’s 2026–27 Budget initially proposed a major reform: a 30% minimum tax on discretionary trust income from 1 July 2028. That proposal raised serious concerns about the future of testamentary trusts. However, following strong industry feedback, the Government made an important announcement on 18 June 2026: Income from testamentary discretionary trusts will be excluded from the new 30% minimum tax—subject to important conditions. So where does that leave things? What Has Actually Changed? The big shift (in plain English) Originally, the proposal meant: All discretionary trusts (including TDTs) would effectively face a minimum 30% tax Now, following the 18 June announcement: TDTs are carved out of that minimum tax, at least in principle However, the carve out is not absolute. The Government has introduced new conditions that fundamentally reshape how testamentary trusts will operate. How Testamentary Trusts Work (Now vs. Future) Current position A typical TDT currently: Distributes income to beneficiaries Beneficiaries pay tax at their own marginal rates Allows flexible income splitting (including to minors) Position after 1 July 2028 (based on current announcement) For qualifying testamentary trusts: No 30% minimum tax applies Existing flow through taxation can continue But only if certain conditions are met. The Fine Print - Critical New Limitations “Genuine testamentary purpose” requirement The exemption only applies where the trust is established for “genuine testamentary purposes” What this means: The Government is targeting artificial or tax driven structures It creates a new integrity rule In practice: Standard will-based TDTs should qualify; But more complex or “recycled” structures may not. This introduces a new area of uncertainty and potential ATO scrutiny. Only applies to estate-derived assets The exemption is limited to income from assets of the deceased estate. Why this matters: If additional assets are later introduced into the trust, those assets may not qualify for the exemption Trustees may need to track and distinguish estate vs non-estate assets This creates real practical complexity in administration. New restrictions from 1 July 2028 For TDTs established after 1 July 2028 the concession will apply only if the trust benefits individuals and tax-exempt entities. Likely impact: Reduced use of corporate beneficiaries (“bucket companies”); Less flexibility in income streaming strategies. So What Does That Mean in Practice? If your will already includes a testamentary trust This is generally good news. The feared 30% tax does not broadly apply; Your trust is likely to remain effective; But: Future administration must consider: - Asset tracing - Integrity requirements If you are updating your will now Things are more nuanced. TDTs are still worth including; But drafting should now consider: - Ensuring a clear testamentary purpose; - How assets will be managed and possibly quarantined; - Future flexibility constraints; A “standard” precedent may no longer be sufficient. What about children and minors? One of the major advantages of TDTs remains: Minors can still access adult marginal tax rates (subject to existing rules) Because: The 30% minimum tax does not apply (for qualifying trusts) This means one of the key tax benefits of TDTs is largely preserved. Will testamentary trusts still be worth it? Yes - very much so. Even aside from tax TDTs still provide: Asset protection (bankruptcy, family law, creditors) Control and flexibility Intergenerational wealth planning The recent announcement confirms: The Government is regulating, not abolishing, testamentary trusts. What Has Not Changed It is critical to understand: The 30% minimum tax still applies to other discretionary trusts; The TDT carve-out: - Is not yet law; - Will depend on final legislation. There is still legislative risk and detail to come. Key Takeaways for Clients If your will includes (or is intended to include) a testamentary discretionary trust: Testamentary trusts are still very much alive The Government has confirmed their continued role in estate planning. But they will be more regulated New rules around: Purpose Asset source Beneficiary classes Will shape how they operate. Existing and future trusts need careful structuring Particularly: How assets flow into and within the trust; How flexibility is maintained under new constraints. Now is still the right time to review your will Even though the outcome is more favourable than first proposed: The rules have changed; Your estate plan should reflect this. Don’t rush unnecessary changes The announcement is: Policy only; Subject to refinement. Premature restructuring could create unintended consequences. Final Word The Government’s original proposal suggested a fundamental shift away from the traditional advantages of testamentary trusts. The 18 June 2026 announcement significantly softens that position. Testamentary discretionary trusts remain a core and effective estate planning tool—but they are moving into a more structured and regulated environment. Between now and 1 July 2028, there is a valuable opportunity to: Properly consider the proposals when the become law; Review existing wills; Refine drafting; Ensure your estate plan continues to deliver the outcomes your family expects. If you would like advice on how these proposed changes may affect your will or estate planning strategy, please contact us on (07) 4771 5664.
Understanding Jack’s Law in Queensland
Queensland has now permanently expanded police powers to conduct searches using metal detectors – commonly known as Jack’s Law. These laws significantly broaden the circumstances in which police officers may, without a warrant, stop, detain and require a person to submit to the use of a hand held scanner. It is important to understand what these powers mean, how they developed, and the possible consequences that might follow from a “wanding”. What is Jack’s Law and why was it introduced? Jack’s Law gives police officers the power to require a person to stop and submit to the use of a hand held scanner without a warrant. The legislation is named in honour of 17-year-old, Jack Beasley, who was tragically killed by a knife attack in December 2019 during a night out with friends in Surfers Paradise. His death sparked community concern about knife-related violence, particularly in safe night precincts and youth environments. In response, the Queensland Government introduced a trial of hand held scanners within the Surfers Paradise and Broadbeach Safe Night Precincts between May 2021 and April 2023. How did the law develop? Due to the trial’s reported success, in April 2023 the Queensland Government increased the areas where hand held scanners may be used to include all 15 Safe Night Precincts in Queensland, public transport stations and public transport vehicles. In August 2024, the Queensland Government again expanded the areas to be considered as relevant places under Jack’s Law to include public places such as shopping centres, retail premises, sporting and entertainment venues, licensed venues and rail lines, and extended the expiry of these provisions to 30 October 2026. Although the trial was set to end on 30 October 2026, the Queensland Government passed amendments in June 2025 making Jack’s Law permanent, expanding police powers even further, and removing previous safeguards regarding hand held scanners. What does the law currently say? Jack’s Law powers are set out in Part 3A of the Police Powers and Responsibilities Act 2000 (Qld) (‘the Act’). The purpose of the legislation is to detect or deter the commission of an offence involving the possession or use of a knife or other weapon.[1] Section 39BA(1) of the Act provides that a police officer may, without a warrant, require a person to stop and submit to the use of a hand held scanner in a public place at, in or on any of the following places (each a relevant place): Licensed premises; A public transport station; A public transport vehicle; Retail premises; A safe night precinct; A shopping centre; and A sporting or entertainment venue. This does not require a warrant, reasonable suspicion, or prior approval from a senior police officer. If a police officer starts to exercise a power in relation to a person while at, in or on a relevant place, the police officer may continue to exercise the power even if the person leaves the relevant place.[2] This means that if a police officer approaches you at a licensed premises and requires you to submit to a scan, you cannot avoid the requirement simply by leaving. The officer may still require you to submit to a scan outside the premises. A senior police officer (being an officer of at least the rank of inspector or senior sergeant) may also authorise the use of a hand held scanner in a public place other than a relevant place (that is, places not listed above).[3] Similarly, if a police officer begins exercising a power in a public place, they may continue to exercise that power even if the person leaves the area.[4] Safeguards for exercise of powers When exercising Jack’s Law powers, police must do so in the least invasive way practicable. They may also detain a person only for as long as is reasonably necessary to exercise the power. If requested, an officer must inform the person of their name, rank, and station, and produce their identity card for inspection (unless the officer is in uniform). The officer must also inform the person that they are required to allow the use of a hand held scanner, and that failure to comply may result in the person being searched without a warrant.[5] What happens if the hand held scanner detects metal? If a hand held scanner indicates that metal is, or is likely to be, present, a police officer may require the person to produce the item causing the detection, submit to a further scan, and comply with the confiscation of any knife or other weapon.[6] If a scan detects metal and the person fails to produce the relevant item when required, this may give rise to a reasonable suspicion that the person possesses a knife or other weapon. That suspicion then enlivens broader search powers under the Act, allowing police to detain and search the person, and anything in their possession, without a warrant. What happens if the search finds something unlawful? A wand scan itself is not an offence. However, if metal is detected and an unlawful item is identified, whether produced by you or discovered during a subsequent search, you may be charged with a criminal offence. This may include offences such as possessing a knife in a public place or unlawful possession of weapons under the Weapons Act 1990 (Qld). A wand scan may also lead to the detection of other offences, such as possession of dangerous drugs under the Drugs Misuse Act 1986 (Qld) or other offences under the Criminal Code Act 1899 (Qld). Key Takeaways Police may detain and scan you with a hand held metal detector at a relevant place or at a public place (with authority of a senior police officer) without a warrant; If you refuse to comply with a police officer’s requirement to submit to a scan, police may detain you and conduct a search of you and your possessions without a warrant; If metal is detected, police may require you to produce the item causing the detection, submit to a further scan, and surrender the item if it is unlawful; If metal is detected and you refuse to produce the relevant item, this may give police reasonable suspicion that you possess a knife or other weapon, allowing them to detain you and search you and your possessions without a warrant; and If an unlawful item is located, you may be charged with a criminal offence. [1] Police Powers and Responsibilities Act 2000 (Qld) s 39AA.[2] Ibid s 39BA(2). [3] Ibid s 39C. [4] Ibid s 39E. [5] Ibid s 39H. [6] Ibid s 39G. Get help from a criminal lawyer If you have been charged with a criminal offence following a wand scan, or if you believe your rights were breached during a search, it is important to obtain legal advice. At Connolly Suthers Lawyers, our experienced Criminal Law team provide clear and reliable advice, along with effective representation. If you have any questions or need assistance, please contact us on (07) 4771 5664. This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Connolly Suthers Criminal Lawyers.
How to Contest a Domestic Violence Order in QLD
This guide provides a framework for understanding DVOs in Queensland and the process for contesting one. If you are served with an Application for Domestic Violence Order, or a Police Protection Notice (PPN) it is very important that you do the following: Firstly, you are being served by the Queensland Police. The Police must independently serve you with the documents because they are directed to do so by the Court. The Police must personally serve these documents to you to ensure compliance with the Domestic and Family Violence Protection Act. It is important that you exercise caution when speaking to police as anything you say or do can be used by the Police against you. You need to exercise your right to silence and ensure you obtain legal advice before speaking to police. You do not need to do this if you simply wish to be served with the material. Secondly, you should obtain independent legal advice as soon as possible. In some cases, Police or Applicant Aggrieved’s can ask the Court to make a temporary protection order without the Respondent being present in Court. In these circumstances, the Court is considering to make a TPO in emergency circumstances. It is important you speak to a lawyer experienced in Domestic Violence Law so that you can get advice as to whether you need to prepare and file a cross-application, or whether you have to draft any material for Court. Finally, you must attend Court on the date specified in the notice of adjournment. Under the DVFPA if you do not appear in Court on the date specified in the notice, the Court is able to hear and determine the application in your absence. This means that if you do not attend Court, a final order can be made against you. This also applies if you are the applicant in a private application, if you do not appear in Court on the date specified, the Court can dismiss your application. If you intend to contest an application it is important that you obtain legal advice. Domestic Violence Proceedings are not like Criminal Proceedings, and the Court has a wide discretion on the evidence to make an order. What Should You Do When Faced With a Protection Order? If you have been served with an Application for a DVO, or you are subject to a Temporary Protection Order; it is important that you comply with the conditions of the order. The making of an order is not a criminal offence, however when the Court imposes conditions in a TPO or final DVO you must strictly adhere to them as breaching the order creates a criminal offence. Some of the conditions which can be included on a DVO will largely depend on the nature of the application and the circumstances raised by the Aggrieved. Typically, some of the conditions can include: - No contact conditions – preventing you as the Respondent from contacting or having any direct or indirect communication with the Aggrieved; No approach condition – a condition preventing your from approaching an aggrieved whether in public or any place for any reason; Distance condition – not be within a specified range of the Aggrieved. For example – a condition imposed stating you cannot be within 100m of the Aggrieved; Ouster condition – a condition where you must immediately or within a specified time, leave your residential premises and be unable to return. This can include the family home. These conditions all can have relevant exceptions imposed to assist you, however it is imperative you obtain legal advice because the effect of these conditions can have on hindering your individual liberty is significant. What happens in Court on the first occasion? One of the first things the Court must consider when going to Court is whether to impose a Temporary Protection Order (TPO). When an application is adjourned, the Court must consider making a TPO, in deciding whether to impose an order the Court must be satisfied that there is a relevant relationship and an act of domestic violence can occur. The bar is extremely low for the Court to consider making an order, and the Court must consider any submission and application in the context of the Aggrieved. This is why it is extremely important to speak to and engage a lawyer to represent you for these proceedings to get the best result possible. Options available to resolve DV Hearings Not every DV Application must be contested, and each response will be relevant to the individual requirements and circumstances of each case. In some cases, a party who does not agree with the application and supporting facts can still agree to an order to reduce legal costs and finalise the application in a timely manner. This process is where you consent to the making of an order, but you are not making admissions to the application. This is a process available to you, it is important that you carefully consider the effect that the making of an order will have. By agreeing to the DVO, you consent to the court’s decision to make the Protection Order permanent. You can agree to the DVO without admission to the domestic violence allegations - this is a way to avoid the time, cost, and stress of a contested hearing while ensuring no formal finding of domestic violence is made against you. A final Protection Order typically lasts for five years. Contest the order If you disagree with the conditions of a DVO, you can choose to contest it. This will initiate a hearing process where you can present evidence or bring witnesses to support the removal or amendment of the order. The court will then evaluate the case and make a final decision on the order. Ask for an adjournment You can also ask the court to postpone the hearing to a later date in order to seek legal advice for a proper response. If the adjournment is granted, a Temporary Protection Order will be made to ensure the safety of the aggrieved, which lasts till the next court date. Queensland Courts recommends DVO respondents get legal advice before deciding whether to agree or disagree with the application. Consulting a family lawyer will not only help you fully understand the consequences of the Protection Order, but also deliver a strategy to mitigate the impact of the order. In many cases, gathering and presenting evidence can still be useful in negotiating the conditions of a Protection Order - even if you plan on consenting to the order. Contact our Criminal Law team today via (07) 4771 5664 or submit a Criminal Law Enquiry via the form at the end of this page. The team at Connolly Suthers has extensive experience in Domestic and Family Violence matters and regularly appears in the Domestic Violence Specialist Court to assist clients navigating these complex issues.
Is It Legal to Record a Conversation in QLD?
In Queensland, the legality of a recorded conversation depends on whether the parties have provided consent, how it was recorded, and who recorded it. Whether you are considering recording a conversation for legal protection or as a future reference to quote verbatim, it’s important to understand how the law applies to the recording. In cases where the involved parties have given consent, recording a conversation is legal. This applies across all states and territories in Australia. However, each state treats secret recordings of conversations (without consent) differently. Is It Legal to Record a Conversation Secretly in QLD? In Queensland, you can record a conversation without the other party knowing as long as you are a participant in the conversation. The Invasion of Privacy Act 1971 (QLD) infers that you can record a conversation, as long as you are part of the conversation This law does not allow you to record conversations between other people. Doing so is illegal, even if the conversation contains matters you are concerned with. While it may be legal to record a conversation secretly in Queensland (as long as you are a participant), state law will restrict how the recording can be used or distributed. Recordings of any conversation, made with or without the consent of other parties, cannot be published or shared with a third party without the consent of all participants. The only legal exceptions to this rule are when the recordings are shared in a legal proceeding or are necessary to protect one’s lawful interests. The court will determine whether it is reasonable to share a recorded conversation with third parties. Can You Record Telephone Conversations in QLD? Yes - technically you can record telephone conversations, if you are participating in the conversation. The state law on recording conversations applies to telephone calls between parties in Queensland. However, the laws on recording interstate call conversations are not as clear due to how other states treat personal privacy. For example, in New South Wales, it is illegal to record a conversation without the consent of all parties, even if you are an active participant. It may not be legal to record a telephone conversation between someone in Queensland and New South Wales, depending on which state laws apply. Legal experts advise erring on the side of caution by seeking consent before recording. Certain phone applications allow calls to be recorded; Queensland law also applies to such recordings, including those made via device speakerphone. Can You Record a Workplace Conversation? It may be legal to record a private conversation in Queensland when you are a participant; however, recording in a workplace setting may result in breaches of trust and confidentiality. Workplaces are bound by additional codes of conduct and internal policies that often prohibit the recording of private conversations without consent. Employees who breach these policies can face dismissal. This outcome is also supported by the Fair Work Commission (FWC), which rules that secretly recording conversations erodes the relationship between employees and employers. One of the most common reasons for recording workplace conversations is to obtain evidence of bullying, discrimination, or unfair dismissal. However, the FWC has historically placed little value on such recordings due to their secretive nature - secret recordings are considered unfair to other participants who "have no opportunity to choose their words carefully". Instead, the FWC encourages employees to seek other ways of keeping records to support a claim, such as taking notes or bringing in a third party as a witness. If you are planning to record a conversation in Queensland or have a recorded conversation that can support a legal claim, we encourage you to seek legal advice from our lawyers in Townsville and Ayr before taking any action. It is a criminal offence to share recordings of a private conversation without the consent of others, and you may face fines of over $6,000 along with a maximum sentence of two years' imprisonment. Contact our Criminal Law team today via (07) 4771 5664 or submit a Criminal Law Enquiry via the form at the end of this page. If your matter relates to workplace issues such as unfair dismissal or bullying, our experienced team of business lawyers can assist you.
Understanding Criminal Records and Convictions in Queensland
Many people are unsure about what a criminal record actually is, when a conviction is recorded, and whether old offences must always be disclosed. These questions often arise when applying for a job, travelling overseas, or applying for licences or security clearances. Queensland law recognises that, whilst criminal convictions can have serious consequences, people are also capable of rehabilitation and moving on from past mistakes. Put simply, not all convictions follow you forever, and not all convictions need to be disclosed in every situation. This article explains how criminal records work in Queensland, including the recording of convictions, spent convictions, and when disclosure is required. What is a criminal record? A criminal record (also known as a criminal history) is an official record kept by police that shows offences for which you have been convicted. This can occur either because you have pleaded guilty or because you were found guilty by a court after a trial. Having a criminal record can have lasting consequences and affect many aspects of your life. Prospective employers may take criminal history into account when making hiring decisions. Convictions can also impact visa applications, international travel, and eligibility for weapons licences or blue cards for working with children. Recording of convictions Whenever a court makes a finding of guilt or accepts a plea of guilty, the offender is convicted.[1] However, the court does not always formally record that conviction. If a conviction is not recorded, it will generally not appear on most criminal history checks. It will, however, still be retained on police databases. If a conviction is formally recorded, it will appear on your criminal history though potentially not forever (see below). In Queensland, courts generally have a discretion to decide whether or not a conviction should be recorded.[2] If a conviction is not recorded, you will generally be allowed to say that you have not been convicted of that offence. There are, however, some exceptions to this non-disclosure rule whereby in some instances you must disclose all convictions (whether or not recorded) (see below). When will a court record a conviction? The decision about whether to record a conviction is governed by section 12 of the Penalties and Sentences Act 1992 (Qld) (the PSA). The court is required to consider all the circumstances of the case, including (but not limited to): the nature of the offence; the offender’s character and age; and the impact that recording a conviction will have on the offender’s economic or social wellbeing, or chances of finding employment.[3] There is no fixed formula. Courts weigh these factors, along with any other relevant considerations, depending on the circumstances of each case.[4] Relevantly, if a court imposes a sentence of imprisonment, whether that sentence is to be served immediately, suspended, or as an intensive correction order, the PSA requires that a conviction be recorded.[5] What is a spent conviction? Even where a conviction is recorded, it does not necessarily remain on your criminal record forever. Under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (the Act), certain convictions become “spent” after a specified rehabilitation period. Once a conviction is spent, it generally does not appear on most criminal history checks, and you are usually not required to disclose it. In Queensland, the rehabilitation period is generally: 10 years for adult convictions in the District or Supreme Court; or 5 years for other convictions, including those dealt with in the Magistrates Court or committed as a juvenile.[6] The rehabilitation period commences from the date of conviction. For a conviction to become spent, you must not be convicted of further offences during the rehabilitation period. If convicted of another offence, the rehabilitation period will restart from the date of the last conviction. However, minor or “simple” offences do not automatically reset the rehabilitation period unless the court orders otherwise.[7] In Queensland, once the rehabilitation period expires, the conviction is automatically spent (subject to no further conviction). Convictions that cannot become spent Not all convictions are eligible to become spent. Under the Act, a conviction cannot become spent if: the sentence involved imprisonment for more than 30 months, including wholly suspended sentences or immediate release to parole; the conviction was for an offence committed by a corporation (company); or the conviction is for certain excluded offences, for example those requiring ongoing disclosure for specific professions or positions. Convictions that have been quashed or set aside are automatically considered spent.[8] Disclosure obligations and exceptions Where the rehabilitation period for a conviction has expired and the conviction has not been revived, it is lawful to state that you have not been convicted of that offence.[9] In other words, you may lawfully deny the existence of the conviction. This includes under oath or affirmation and even in formal settings such as court proceedings, statutory declarations, or job applications. However, like most things in the law, there are some important exceptions to the non-disclosure rule. Section 9A of the Act lists these exceptions. Certain professions such as solicitors, teachers, police officers, and politicians require disclosure of spent convictions when applying for employment. Penalties for unlawful disclosure It is an offence to contravene any provision of the Act, punishable by up to 100 penalty units ($16,690).[10] This includes disclosing a person’s spent conviction without their consent (unless it is under authority or permit),[11] or considering a person’s spent conviction when assessing their fitness (unless expressly required by law).[12] Summary The law in Queensland relating to criminal convictions and their disclosure can be complex. In many situations, people are asked to disclose their criminal history. Care must be taken to understand exactly what is being asked, particularly where a conviction has not been recorded. In many circumstances, convictions that are not recorded do not need to be disclosed. Some organisations attempt to bypass these rules by framing questions differently. For example, you may be asked whether you have ever “pleaded guilty to” or “been found guilty of” an offence. This is a different question to whether you have a conviction. If you are unsure about your disclosure obligations, it is important to seek legal advice. Get help from a criminal lawyer If you are unsure how your past criminal history may affect your personal and professional life, our experienced Criminal Law team at Connolly Suthers can provide you with expert advice to help you better understand your rights and obligations. Get in touch with us to speak to our Townsville lawyers or learn more about how we can help you. If you have any questions or need assistance, please contact us on (07) 4771 5664 or law@cosu.com.au This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Connolly Suthers Lawyers. [1] Criminal Code Act 1899 (Qld) s 1. [2] Penalties and Sentences Act 1992 (Qld) s 12(1). [3] Ibid s 12(2). [4] R v Brown; ex parte Attorney-General [1994] 2 Qd R 182 at 185 (Macrossan CJ). [5] Penalties and Sentences Act 1992 (Qld) ss 111, 143, 152. [6] Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3. [7] Ibid s 11. [8] Ibid s 5(1). [9] Ibid s 8. [10] Ibid s 12. [11] Ibid s 6. [12] Ibid s 9.
Key Changes to Queensland Domestic and Family Violence Laws Effective 1 January 2026
The commencement of the new year brings significant changes to Queensland’s Domestic and Family Violence (DFV) legislative framework. Many of these reforms are designed to strengthen early intervention and improve protections for victims of domestic violence. We previously discussed several of these anticipated reforms in our 2025 article, Proposed Changes to Queensland Domestic Violence Law – What Do These New Changes Mean? (read here). One of the most notable changes taking effect from 1 January 2026 is the introduction of Police Protection Directions (PPDs). What Is a Police Protection Direction (PPD)? From 1 January 2026, Queensland Police will have the power to issue a Police Protection Direction (PPD) in certain domestic violence situations. A PPD is a legally enforceable direction that sets out conditions a respondent must comply with. Importantly, police can issue a PPD without first applying to the court for a Police Protection Order. Once served, a PPD can remain in force for up to 12 months. Failure to comply with the conditions of a PPD is a criminal offence, and a respondent may be charged for contravening the direction. When Can Police Issue a PPD? A police officer may issue a PPD where they reasonably believe that: The respondent and the aggrieved are in a relevant relationship; The respondent has committed an act of domestic violence against the aggrieved; The PPD is necessary and desirable; and It would not be more appropriate for a protection order application to be made directly to the court. The purpose of PPDs is to allow police—who are often the first responders—to provide immediate protection and support to victims of domestic violence. These directions are intended to streamline the protection process and reduce delays associated with court applications. When Can Police Not Issue a PPD? Although PPDs are designed to simplify the protection process, they are not intended to replace the court system in all cases. Police are prohibited from issuing a PPD in certain circumstances, including where: The aggrieved or respondent is a child or a police officer; The respondent should be taken into custody for the domestic violence incident; There is, or has previously been, a protection order or interstate order between the same parties; There is, or has previously been, a PPD against the respondent; The respondent has been convicted of a domestic violence offence within the past two years; There is an unresolved criminal domestic violence proceeding against the respondent; There is an unresolved application for a protection order before the court; The respondent used, or threatened to use, a weapon or object; Police believe both parties require protection but cannot determine who is most in need; or Police believe a child requires additional protection that cannot be adequately addressed by a PPD. When Does a PPD End? A PPD remains in force for 12 months from the date it is served or verbally issued by police. A PPD may end earlier if: Police or a court revokes the PPD; A Protection Order (DVO) or Police Protection Notice is issued for the same parties; An application for a protection order is filed in court for the same parties; or An application for a protection order is dismissed or adjourned without a temporary protection order being made. What Should You Do If You Are Served With a PPD? If you have been served with a PPD and do not agree with the direction or its conditions, you may seek a review in one of two ways: Police Review Court Review It is essential to obtain legal advice before choosing a review pathway, as each option carries different legal and practical consequences. Police Review A respondent may apply for a police review within 28 days of being served with a PPD. The application must be lodged with the Queensland Police Service using the approved form. If the application is filed outside the 28-day timeframe, an extension must be sought and will be considered at the discretion of the reviewing officer. Following the review, police may decide to: Confirm the PPD; Revoke the PPD with no further action (meaning it is taken never to have existed and will not form part of the respondent’s DV history); Revoke the PPD and issue a new PPD with amended conditions; Revoke the PPD and apply for a protection order or issue a Police Protection Notice; or Take other action under section 100(3) of the Domestic and Family Violence Protection Act. Court Review Alternatively, a respondent may apply to the Magistrates Court for a review of the PPD. During the court review process, the PPD remains in force, and all conditions must be strictly complied with. Once a court review application is filed, police will automatically file the PPD as an application for a protection order against the respondent. The court may then: Make a final protection order (typically for five years); Make a temporary protection order while the matter is determined; or Determine the outcome of the PPD review. In these circumstances, the PPD will end. The court may also: Order that the PPD end on a specified date (remaining on the respondent’s DV history); Set aside the PPD entirely (removing it from the respondent’s DV history); or Dismiss the review application, allowing the PPD to continue. Seek the Right Legal Advice Queensland’s Domestic and Family Violence laws are complex and have undergone substantial reform in recent years. If you have been served with a Police Protection Direction or approached by police regarding a domestic violence matter, obtaining timely legal advice is critical. While the issuance of a PPD or protection order is not itself a criminal offence, breaching the conditions is, and can result in serious criminal consequences. These orders may also impact employment, professional licensing, blue card eligibility, and weapons licences. Contact our Criminal Law team today via (07) 4771 5664 or submit a Criminal Law Enquiry via the form at the end of this page. The team at Connolly Suthers has extensive experience in Domestic and Family Violence matters and regularly appears in the Domestic Violence Specialist Court to assist clients navigating these complex issues.
Can you defend your home from an intruder? Understanding Queensland’s defence of dwelling
Home invasions are something no one wants to experience. With concerns about youth crime and property breaks-ins on the rise, many Queenslanders are asking: What can I legally do if someone breaks into my house? Can I fight back? And if so, how far can I go? The answer lies in section 267 of the Criminal Code Act 1899 (Qld) (‘the Criminal Code’) – commonly known as Defence of Dwelling. What is defence of dwelling? Under Queensland law, it is lawful for a person in peaceable possession of a dwelling, and any person lawfully assisting him or her or acting by his or her authority, to use force to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds— the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and it is necessary to use that force.[1] What does this mean in practice? In Queensland, an occupier may use force they believe is necessary, provided that belief is held on reasonable grounds. This is not the same as requiring the force itself to be “reasonable”. The question is whether the occupier actually held the belief, and whether there were reasonable grounds for it, even if others might think it was wrong or misguided. This threshold offers Queenslanders confidence in their rights to defend their home, however, it is not a free pass to slaughter every trespasser. History behind the defence The idea that “a man’s home is his castle” goes back centuries. It was famously recognised in Semayne’s Case in 1604, which described the home as a fortress.[2] Section 267 of the Criminal Code was modernised in 1997 in response to growing community concerns about home invasions. Before that, the law only applied to “forcible breaking and entering of the dwelling house”. The current version covers any unlawful entry or remaining in a dwelling, provided you believe the intruder intends to commit an indictable offence therein. More recently, there has been political debate about whether the law should go further. In 2024, the Criminal Code (Defence of Dwelling and Other Premises – Castle Law) Amendment Bill 2024 was introduced to Queensland Parliament. The objective of this Bill is to broaden the circumstances in which an individual can lawfully respond to a home invasion with such force that it may result in grievous bodily harm or death to the intruder. Whilst the Bill has not passed, it has sparked significant public interest and is likely to continue generating debate about the appropriate limits of force in defence of the home. Breaking down the elements of the defence There are 4 elements to defence of dwelling. Importantly, the defendant bears the evidentiary burden to raise or point to evidence capable of supporting the availability of the defence. This is assessed on the balance of probabilities, which is a lower standard of proof. Once this burden is met, the legal burden shifts to the Prosecution, who must then disprove at least one element of the defence beyond reasonable doubt, a significantly higher threshold. Element 1 The first element is satisfied where the defendant was in peaceable possession of a dwelling or was lawfully assisting or acting by the authority of a person in peaceable possession of a dwelling. The term “dwelling”, in its summarised terms, refers to a building or structure, or part of a building or structure, kept by the owner or occupier for their residence and that of their family.[3] An area under a high-set house, where the laundry was located, has been held to fall within the meaning of dwelling,[4] as has a motel unit occupied by a person for a week,[5] and a caravan used for residential purposes.[6] However, a concrete pad on the ground between a house with a carport attached and a rear shed has been held not to be a structure or part of those buildings or structures.[7] This means that, for example, if someone were in your yard and you reasonably believed they were attempting to enter your dwelling to commit an indictable offence, the law may allow you to use force necessary to stop them. However, it is important to remember that every situation is different, and proving that belief can be more difficult where, for instance, you live on a large acreage and the person is not near the dwelling. In reality, the best and safest first step is always to contact Queensland Police Service immediately. If it is safe to do so from a distance, recording the intruder may help support your defence should the matter proceed to Court. The term “possession” includes ‘having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.’[8] There is limited Australian authority on the meaning of “peaceable”. However, in determining whether possession is peaceable, Courts have considered factors such as whether the defendant was living in the dwelling in which the events occurred, and whether there is a dispute as to their entitlement to be there.[9] Element 2 The second element requires that the defendant used force for the purpose of preventing or repelling an intruder from unlawfully entering or remaining in the dwelling. If the victim is lawfully on the premises, defence of dwelling will not be available,[10] and the force used cannot be used as a form of vengeance. Regarding the degree of force used, it has been held that ‘section 267 might apply even if the defendant used more force than was reasonably necessary to make an effectual defence of his person or of others in the house against [the victim].’[11] In this way, defence of dwelling does not entrench a requirement of proportionality or reasonableness for the amount of force used. Elements 3 & 4 The third and fourth elements are often considered together given their subjective and objective components. The defendant must hold a subjective belief that the victim was attempting to enter or remain in the dwelling with intent to commit an indictable offence, and that their use of force was necessary to prevent this. The law further requires that the defendant’s subjective belief be based on reasonable grounds, thereby introducing an objective element.[12] Threatening violence has been found to be sufficient to form a reasonable belief.[13] Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are known as indictable offences, which may include stealing, unlawful use of a motor vehicle, or assault.[14] In determining whether the belief in the necessity of force was reasonably held, the jury must consider the circumstances as a whole; including the level of force used and the reality that a person defending their home may not be able to precisely weigh the best course of action.[15] It must also be acknowledged that ‘reasonable people in the accused’s situation might have held a variety of beliefs ... about the relevant state of affairs.’[16] Ultimately, Courts assess reasonableness based on the situation as it appeared to a person at the time, not with hindsight. The law also recognises that a person defending their home is not required to retreat from a threat, even where retreat might otherwise appear a reasonable option.[17] However, approaching an intruder should only ever be considered as a last resort. Protecting your own safety, and that of others in the dwelling, is paramount, and you can never know whether an intruder may be armed or in company. Scope of defence of dwelling Defence of dwelling is broader than self-defence and other property defences. It does not require the force used to be proportionate, and it does not exclude cases where grievous bodily harm or even death results.[18] Importantly, a person does not need to fear death or grievous bodily harm themselves to rely on the defence.[19] The absence of a proportionality requirement, while extending the ambit of the defence, may be justified on the basis that an occupant faced with a sudden home invasion cannot be expected to exercise fine judgment as to the exact level of force required. In principle, this means the defence can extend to lethal force, though only in the most significant circumstances. If an owner/occupier of a dwelling reasonably believes lethal force is necessary to prevent or repel an intruder from entering or remaining in the dwelling (provided they also reasonably believe the intruder intends to commit an indictable offence in the dwelling), the law can justify that use of force. The key question for the Court or jury is whether that belief was reasonable in all the circumstances and whether the force used was reasonably necessary. In R v Spajic [2011] QCA 232, the Queensland Court of Appeal dismissed an appeal against a conviction for manslaughter, on the ground that the jury could reasonably have found that the appellant did not believe, on reasonable grounds, that it was necessary to stab the deceased to prevent entry into the dwelling. After a trial, the jury acquitted the appellant of murder and instead convicted him of manslaughter. The evidence showed that the deceased had accompanied a friend to the appellant’s residence to help her recover property she believed was inside. Although the deceased was on the appellant’s verandah and knocking loudly on a window, he neither entered nor attempted to force entry into the appellant’s house, nor did he step inside when the appellant opened the door. An altercation arose, however, the deceased was unarmed, and it was the appellant who escalated the confrontation by arming himself with a knife and confronting the group on the verandah. Violence only broke out after the appellant threatened the deceased with the knife. In those circumstances, the requirements of defence of dwelling were not satisfied, and the appeal was dismissed. Get help from a criminal lawyer Whilst Queensland law recognises Defence of Dwelling, it applies in limited circumstances. If someone is on your property or attempting to enter your home, the safest and most appropriate course of action is to contact the Queensland Police Service immediately. If you have been charged with a criminal offence, it is important to seek timely and accurate legal advice from a lawyer who can advocate effectively for you in Court. At Connolly Suthers Lawyers, our experienced Criminal Law team provide clear, reliable advice and strong representation at every stage of the process. If you have any questions or need assistance, please contact us on (07) 4771 5664. This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Connolly Suthers Criminal Lawyers. [1] Criminal Code Act 1899 (Qld) s 267. [2] Semayne’s Case (1604) 77 ER 194, 195. [3] Criminal Code Act 1899 (Qld) s 1. [4] R v Bartram [2013] QCA 361, [19]-[20]. [5] R v Halloran and Reynolds [1967] QWN 34. [6] R v Rose [1965] QWN 35. [7] R v Richards [2023] QCA 7, [20]-[21]. [8] Criminal Code Act 1899 (Qld) s 1. [9] R v McMartin [2013] QCA 339, [23]. [10] Ibid. [11] R v Spajic [2011] QCA 232, [35], citing R v Cuskelly [2009] QCA 375, [27]. [12] R v O’Neill [2009] QCA 210, [16]; Murray v Grieve [2014] QDC 18, [58]. [13] R v Cuskelly [2009] QCA 375; R v Bartram [2013] QCA 361. [14] Criminal Code Act 1899 (Qld) s 3. [15] R v McMartin [2013] QCA 339, [23]. [16] R v O’Neill [2009] QCA 210, [16]. [17] R v Cuskelly [2009] QCA 375, [29], citing R v Hussey (1925) 18 Cr App R 160, 160-2. [18] R v McMartin [2013] QCA 339, [26]. [19] R v Cuskelly [2009] QCA 375, [27].
Is a Stepchild Eligible to Contest a Will in Queensland?
Is a stepchild eligible to contest a Will in Queensland? Eligibility criteria In Queensland, a stepchild has the same rights as a biological or adopted child to contest a Will provided the stepparent and the child’s natural parent did not divorce before the death of the stepparent. To be a stepchild (and eligible to contest the Will of the stepparent), the child’s natural parent and stepparent don’t have to be married. It applies if they are in a civil partnership or de facto relationship as well. In 2017, the law was amended to confirm that the child of a deceased’s civil partner or de facto partner falls within the definition of a stepchild. It is important to note that a stepchild remains eligible to contest the Will of the stepparent even when the stepparent remarries or enters into a de facto relationship or civil partnership after the death of the child’s natural parent provided that prior to the death of the child’s natural parent their relationship was not legally dissolved. Time frames for a stepchild to contest A stepchild who intends to contest a Will must do so within statutory time limits. The stepchild must notify the executor in writing of their intention to contest the Will within 6 months of the deceased’s death and they must file their Family Provision Application and commence proceedings within 9 months of the deceased’s death. Factors considered in a Family Provision Application While a stepchild in Queensland is eligible to contest a Will regardless of their age or dependence on the deceased, being successful in their claim for further provision from the deceased’s estate is a separate issue. The courts will look at a variety of factors when undertaking a Family Provision Application, such factors include: the financial and personal situation of the stepchild, the length, nature and closeness of the relationship between the stepchild and the deceased, the degree to which the stepchild was dependent on the deceased, competing claims (the claims and needs of other beneficiaries or applicants) and deceased’s reasons for excluding or minimising the stepchild’s share and the size of the deceased’s estate. Superannuation death benefits and stepchildren As to the eligibility of a stepchild to receive superannuation death benefits direct from the superannuation fund, a stepparent cannot nominate their stepchild as a beneficiary of their superannuation death benefits when the natural parent has predeceased or has divorced the stepparent. In such circumstances, the ATO has said that a stepchild is no longer entitled to receive death benefits directly from the superannuation fund unless the stepchild meets another definition as a dependant. Dying without a Will and stepchildren If a person dies without a Will, under Queensland’s Intestacy Laws, stepchildren are not automatically recognised as beneficiaries unless they qualify as a dependant in a Family Provision Application. If you would like assistance with any of the above information, please contact our Wills and Estates team via (07) 4771 5664.
Crimes Against The Elderly
Unconscionable, Criminal and Invisible Taking advantage of the old, frail and vulnerable members of society is more prevalent now than it ever was. People are living longer, they have more money and many are developing mental illnesses such as Alzheimer’s Disease.