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Wednesday, 19 April 1972
Page: 1211

Senator BROWN (VICTORIA) - Is the AttorneyGeneral aware that in a Melbourne County Court yesterday Judge Hewitt, in dismissing Mr Ken McLelland's appeal, k reported as having said that he was of the opinion that the National Service Act gave him no discretion at all in the matter and 'although 1 loathe to do so 1 must confirm the sentence"? In the interests of justice I ask the Minister whether he will examine the transcript of this hearing and if necessary consult Judge Hewitt to ascertain what deficiencies exist, if any, in the National Service Act which prohibit or inhibit a judge from exercising his judicial judgment and discretion based on the evidence placed before him.

Senator GREENWOOD (VICTORIA) (Attorney-General) - 1 have read the Press reports of what was said yesterday when Mr McLelland chose to go to gaol rather then enter into a recognisance to undertake his national service. I think it should always be appreciated that when persons offend against the National Service Act in the circumstances in which Mr McLelland has it is a voluntary act on the pan of those people. They are given the choice of either entering into a recognisance to undertake their national service or go to gaol. Mr McLelland chose to go to gaol. 1 can well understand a judge, or any person, feeling a reluctance in those circumstances to have to sentence a person to gaol. But. as the judge said, the Act allows him no discretion. lt should never be forgotten that the National Service Act requires for our defence preparedness that a cetain number of young persons undertake 18 months service. It would be totally unfair - to use the honourable senator's expression, it. is a matter of justice - that those who seek to escape scot free from their obligation in the belief that they do not have to obey the National Service Act should not be subjected to .a penalty because of the attitude they adopt. It is a matter of being fair for one and fair for all. I shall examine the transcript but I am not prepared to enter into a consultation with the judge as the honourable senator suggests. I do not think it is proper that the Executive arm should consult with the judicial arm in that way.

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