Re Nolan; Ex parte Young

This matter concerned an application for a writ of prohibition brought by Sergeant Young, the prosecutor, against Lieutenant Colonel J.A. Nolan and the Commonwealth of Australia. Sergeant Young faced seven charges under section 55(1)(a) of the Defence Force Discipline Act for falsifying a service document, specifically a pay list. He also faced seven charges under section 135(2) of the New South Wales Crimes Act, as applied in the Australian Capital Territory and extended to defence force members by section 61 of the Defence Force Discipline Act, for uttering a forged document. The core of the dispute revolved around the validity of section 61 of the Defence Force Discipline Act.

The High Court was required to determine the validity of section 61 of the Defence Force Discipline Act, which extended the application of certain New South Wales criminal offences to defence force members. The applicant argued that the charges under the New South Wales Crimes Act, as applied through section 61, were improperly laid, suggesting an overabundance of civilian offences covered the alleged conduct. The Attorneys-General for South Australia, New South Wales, and Queensland intervened, with the former two seeking to argue the validity of section 61, and Queensland intervening in support of the prosecutor. The Commonwealth initially raised a preliminary issue regarding the appropriateness of naming the Commonwealth as a respondent in prohibition proceedings, suggesting an order under Order 55 rule 12 to name it as a respondent, a course previously adopted by the Court.

The Court's reasoning, as indicated by the submissions of counsel, focused on the constitutional validity of section 61 of the Defence Force Discipline Act. The applicant contended that the charges were substantively covered by existing defence force discipline provisions, implying that the extension of state criminal law was unnecessary or invalid. The intervening states presented arguments concerning the validity of section 61, with some supporting the prosecutor and others taking a position that its validity was questionable. The Court ultimately needed to decide whether section 61 validly conferred jurisdiction for the charges brought under the New South Wales Crimes Act.