Ex parvis magna — great things grow from small beginnings: apt for a code that began as one judge’s review of a fragmented body of law.

The Griffith Code: Origins and Application Across Australia

A Judge’s Solution to Scattered Law

In 1893, Sir Samuel Walker Griffith was appointed Chief Justice of Queensland, having already served twice as the colony’s Premier and having co-drafted, with Andrew Inglis Clark, the working draft that became the Australian Constitution. Around this time he began the task of codifying Queensland’s criminal law, then scattered across roughly 250 Acts of Parliament and common law authorities. In an explanatory letter to the Attorney-General accompanying his draft, Griffith wrote that it seemed strange “that in the present stage of civilisation a great branch of law, by which everyone is bound… should not be reduced to writing in such a form that any intelligent person able to read can ascertain what it is.”

The result, delivered in 1897 after approximately five years’ work, was a 733-section draft code. The Queensland State Archives records this as covering more than a thousand distinct offences; that specific figure comes from the Archives’ own account rather than a peer-reviewed source, so it’s worth treating as their institutional estimate rather than an independently verified count. Because England had never enacted a comprehensive criminal code of its own, despite repeated nineteenth-century attempts, including Sir James Fitzjames Stephen’s 1878 draft, Griffith drew on comparative sources: the Indian Penal Code, Stephen’s draft, and the 1889 Italian Penal Code (the Zanardelli Code), a language Griffith had been fluent in since adolescence, along with elements of the New York Penal Code. Parliament passed the Criminal Code Act 1899 (Qld), and the Code took effect on 1 January 1901.

The Structural Innovation

Griffith’s Code set out general principles of criminal responsibility, ignorance of the law and honest claim of right, unwilled acts, accident, mistake of fact, emergency, insanity, intoxication, immature age, and duress, in a single dedicated chapter, applying across every offence in the Code by default, unless displaced by the Code itself or by another statute. This was the genuine structural departure from the common law approach: general principles stated once, in the Code’s own text, rather than derived case by case from precedent.

Adoption Beyond Queensland, Precisely Stated

Western Australia adopted Griffith’s Code directly in 1902, later consolidated as the Criminal Code Act Compilation Act 1913 (WA), which remains in force today, extensively amended but structurally the same instrument. Tasmania and the Northern Territory took a different path worth stating accurately: both adopted their own criminal codes, the Criminal Code Act 1924 (Tas) and the Criminal Code Act 1983 (NT), and both were genuinely influenced by Griffith’s work, but neither is a direct adoption of the Queensland Code in the way Western Australia’s is. They are related, comparable instruments, not copies.

Beyond Australia, the Code’s clearest influence runs through Papua New Guinea, which inherited Queensland-derived criminal law during the period of Australian administration prior to independence, rather than adopting it as a separate, external choice. It also shaped colonial-era codes in parts of Africa: Northern Nigeria’s chief justice, H.C. Gollan, drafted a penal code directly based on the Queensland Code, which came into force in 1904, and this was extended across a unified Nigeria in 1916 following the amalgamation of the Northern and Southern protectorates. Botswana adopted a Queensland-model penal code as late as 1964, replacing Roman-Dutch common law. These are the specific, documented instances; broader claims about wider adoption across British Africa are harder to pin down to particular jurisdictions and are better left unstated than generalised.

The Griffith States Against the Common Law States, More Precisely Drawn

The real distinction is not simply “code states” against “common law states,” since New South Wales and Victoria both have extensive statutory criminal offences, and Commonwealth criminal law is itself codified under the Criminal Code Act 1995 (Cth). The precise distinction is narrower: which jurisdictions have a comprehensive code governing the general principles of criminal responsibility, applying by default across offences, against those where general principles remain primarily governed by common law presumption, chiefly He Kaw Teh v The Queen (1985) 157 CLR 523, supplemented by statute. On that narrower and more accurate test, Queensland, Western Australia, Tasmania, and the Northern Territory have comprehensive codes for general principles; New South Wales, Victoria, and South Australia do not, notwithstanding that South Australia, too, has numerous statutory criminal provisions of its own.

This affects live litigation directly. In Western Australia, sections 22 and 24 of the Code address distinct concepts, ignorance of the law and honest claim of right on the one hand, mistake of fact on the other, and the High Court’s decision in Ostrowski v Palmer (2004) 218 CLR 493 held they must be read together to understand how they interact, rather than treating section 24 alone as the sole determinant of strict liability. A defendant relying on this framework in Perth is working from a different textual source than a defendant relying on the common law presumption from He Kaw Teh in Sydney, even where the practical result might look similar.

A Federation-Era Instrument, Still in Force

More than 125 years after Griffith completed his draft, his Code remains the operative criminal law of Queensland and Western Australia specifically, with Tasmania and the Northern Territory operating related, independently drafted codes it directly influenced, and Papua New Guinea and, briefly, Nigeria and Botswana having adopted versions of it during the colonial period. Its defining structural choice, stating the general principles of criminal responsibility once, in dedicated statutory text, rather than assembling them case by case from precedent, remains a genuine and practically significant point of division within Australian criminal law today.

Sources

• Griffith, Sir Samuel Walker, Draft of a Code of Criminal Law: prepared for the Government of Queensland (Government Printer, 1897), QUT Digital Collections.
• Criminal Code Act 1899 (Qld); Criminal Code Act Compilation Act 1913 (WA); Criminal Code Act 1924 (Tas); Criminal Code Act 1983 (NT).
• Criminal Code Act 1995 (Cth).
• He Kaw Teh v The Queen (1985) 157 CLR 523.
• Ostrowski v Palmer (2004) 218 CLR 493.
• Bardo Fassbender and Anne Peters (eds.), Codification: History and Present Significance, and Swanepoel, “A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa,” Journal of African Law.
• Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (2008), on the Nigeria adoption specifically.
• Queensland State Archives, Legal Heritage Collection.

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