Self-Defence Laws in Queensland: The Section 271 Test Explained

Queensland does not have one self-defence test: the Criminal Code Act 1899 splits an ordinary unprovoked assault into two different tests under section 271, adds a narrower retreat-based test under section 272 for a person who started the fight, and layers a separate partial defence under section 304B on top for people who kill an abusive partner.

This page covers Queensland only. For how the two-limb approach compares with the rest of the country, most of which uses a single belief-and-reasonable-response test rather than splitting it in two, see self-defence laws in Australia. It is part of our broader guide to everyday law in Australia.

Section 271: The Two Tests for an Unprovoked Assault

Section 271 covers a person who did not provoke the assault against them, and it sets two different tests depending on how much force they used.

Section 271(1) applies to force that is not intended to cause, and is not likely to cause, death or grievous bodily harm: that force is lawful if it is 'reasonably necessary' to make effectual defence against the assault. Queensland's Criminal Directions Benchbook describes this as an objective test, a matter for the jury's own assessment rather than a question of what the defendant believed.

Section 271(2) applies once the nature of the assault causes reasonable apprehension of death or grievous bodily harm. The test is different in kind: it asks whether the person using force believed, on reasonable grounds, that they could not otherwise preserve themselves or the person they were defending from that outcome. Queensland's benchbook, and two Court of Appeal decisions, R v Wilmot and R v Saxon, are explicit that this is a subjective belief test assessed on reasonable grounds, not the objective necessity standard used in section 271(1); a direction telling a jury the Crown can defeat section 271(2) simply by showing the force was objectively unnecessary is a misdirection.

Neither limb of section 271 imposes a retreat requirement. That is a real difference from section 272, discussed next, which does.

Section 272: Provoked Assault and the Retreat Condition After Dayney v The King

Section 272 is a narrower version of the defence, available only to a person who started the confrontation. It applies once the counter-assault the person faces raises a reasonable apprehension of death or grievous bodily harm, and only if three conditions in section 272(2) are met: the person did not begin the assault intending to kill or cause grievous bodily harm, they did not themselves try to kill or cause grievous bodily harm before the necessity to defend arose, and they first declined further conflict and retreated as far as practicable.

The High Court's 2024 decision in Dayney v The King [2024] HCA 22 resolved a live dispute about how that retreat condition operates: is it an independent, standalone requirement, or does it only modify the two exclusions above it? The Court held it is independent. The retreat and de-escalation condition applies to any person who provoked a confrontation and then used force causing death or grievous bodily harm, regardless of whether they also had an intent to kill or cause grievous bodily harm when the fight began. Queensland's Court of Appeal decisions below had already reached this reading; the High Court confirmed it is correct. Whether the same retreat condition binds on section 272 facts where the resulting force stayed short of death or grievous bodily harm was not fully resolved in the research behind this page, and this page does not assume an answer either way.

Defending Your Home and Property: Section 267 vs Section 277

Queensland treats a dwelling differently from other premises. Section 267 lets an occupant use force to defend a dwelling with no textual limit on how much, and the Queensland Court of Appeal held in R v McMartin that it is a misdirection to tell a jury the defence is unavailable just because the defendant intended to kill or cause grievous bodily harm; on the right facts, section 267 can extend to lethal force.

Section 277 covers defending other premises against a trespasser, and it is explicitly capped: the defence does not apply if the force causes grievous bodily harm. The two provisions are not the same rule under different labels. A dwelling gets a materially wider defence than a shed, a shop, or vacant land.

Family Violence: Section 304B's Partial Defence

Section 304B, killing for preservation in an abusive domestic relationship, can reduce a murder charge to manslaughter where the deceased committed serious domestic violence against the defendant within an abusive domestic relationship, the defendant believed it necessary for their own preservation from death or grievous bodily harm, and there were reasonable grounds for that belief given the relationship and all the circumstances, including a history of incidents that were individually minor or trivial.

Queensland's benchbook is explicit that section 304B is not the same defence as section 271 or section 272, and it works differently: it is a partial defence to murder only, reducing the charge to manslaughter, and it is not available as a defence to manslaughter itself. A defendant can raise section 271 or section 272 first, seeking a full acquittal, and fall back on section 304B if that fails, since the two are not mutually exclusive on the same facts.

Family violence protection orders sit alongside this criminal defence rather than replacing it; see domestic violence order, AVO, laws in Australia for the civil protection-order side.

Onus of Proof

Queensland's Code does not contain a separate numbered onus provision for section 271 or section 272, but the benchbook's suggested jury directions for both are explicit: the prosecution must prove beyond reasonable doubt that the defendant was not acting in self-defence. Nothing shifts that burden onto the person raising the defence.

Intoxication

Queensland's general intoxication provision, section 28 of the Code, is keyed to section 27, unsoundness of mind, and to offences requiring a specific intent, not to self-defence directly. Involuntary intoxication is treated under section 27; voluntary intoxication is not, though it can be weighed on whether a specific intent existed. No Queensland source found in the research behind this page addresses how voluntary intoxication interacts with the reasonable-grounds elements of section 271(2) or section 272, and nothing here should be read as resolving that question.

Weapons and Self-Defence

Carrying an item because it might be useful for self-defence is not, on its own, a lawful excuse to possess it in Queensland. Capsicum spray is a Category R, most restricted, weapon here, and tasers are prohibited for civilians outright. Sections 271, 272, 267, 277 and 304B are about whether using force was lawful, not about whether carrying a weapon was. See self-defence weapons in Australia for what is and is not legal to carry.

After You Have Used Force

Successfully raising self-defence is a legal outcome a court decides, not something a person can be certain of in the moment. What happens immediately afterwards, arrest, police questioning, the right to silence, and whether Queensland police must let a person attempt to contact a lawyer, is covered separately in Miranda rights in Australia, which explains how Queensland's Police Powers and Responsibilities Act compares with the other states. This page describes the tests that can make force lawful; it is not advice on what to do or say if force has already been used.