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Statement of Compatibility with Human Rights Criminal Code Amendment Bill 2018 (Serial 69)



Statement of Compatibility with Human Rights Criminal Code Amendment Bill 2018 (Serial 69)

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Tabled paper 921


Tabled Papers for 13th Assembly 2016 - 2020; Tabled Papers; ParliamentNT




Tabled by Natasha Fyles


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2 Section 189A of the Criminal Code It should be noted that mandatory sentencing already applies to section 189A and the amendments contained in this Bill are not creating new mandatory sentencing provisions. The existing mandatory sentencing provisions in the Sentencing Act will continue to apply to the section 189A offence in its amended form however, for completeness, the human rights implications of mandatory sentencing are addressed below. Mandatory sentencing provisions apply to section 189A of the Criminal Code and provide a minimum period of imprisonment on conviction. Section 189A carries a maximum penalty of five years imprisonment for unlawfully assaulting a police officer in the course of duty; seven years if the police officer suffers harm; and 16 years if the police officer suffers serious harm. These penalties will continue to apply to the amended offence which covers emergency workers. Mandatory sentencing is likely to engage article 14(5) of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to have a sentence reviewed by a higher tribunal. In addition, article 9 of the ICCPR protects the right to security of the person and freedom from arbitrary detention. An offence provision to which mandatory minimum sentencing applies will engage the right to be free from arbitrary detention. The notion of 'arbitrariness' under international human rights law includes elements of inappropriateness, injustice and lack of predictability. Detention may be considered arbitrary where it is disproportionate to the crime that has been committed. Although these rights are relevant, the Sentencing Act contains safeguards that protect against the imposition of a sentence of