Dr Pennefather’s Criminal Code for South Australia

Abstract

South Australia, like England and the two largest Australian States of New South Wales and Victoria, retains the common law of crime, merely modifying various aspects of it, as the need arises, by statute. There has been only one serious attempt to codify the common law of crime in South Australia. Early in the twentieth century, a draft Criminal Code was produced by an Anglo-Irish lawyer who had been Professor of Laws at the University of Adelaide. Although the draft was commissioned by the government of South Australia, that government took no steps towards its enactment. Analysing the primary sources, this article shows that the failure of the Code was due to inertia on the part of the government rather than any serious defects in the Code itself (as Castles proposes). The legislative process is not well adapted to considering lengthy codes, and the political process is too oriented towards short-term goals rather than the long-term benefits which are thought to flow from codification.