R v University of Sydney [1943] HCA 11

67 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

THE KING

AGAINST

THE UNIVERSITY OF SYDNEY ;

Ex. parte JOHN McPHERSON DRUMMOND,

Constitutional Law—Defence—Scope of power—Universitics Commission—Control of admission to universities—The Constitution (63 & 64 Vict. c. 12), sec. 51 (vi.)— National Security Act 1939-1940 (No. 15 of 1939—No. 44 of 1940), sec. 5— National Security (Universities Commission) Regulations (S.R. 1943 No. 28— 1943 No. 58), regs. 4, 7, 15, 16—University and University Colleges Act 1900-1937 (N.S.W.) (No. 52 of 1900—No. 35 of 1937), secs. 15, 17, 310, 46—By-laws of the University of Sydney, ch. XX.

Reg. 16 of the National Security (Universities Commission) Regulations, purporting to make provision for the control of admission to universities, is not within the defence power of the Commonwealth and is invalid. So held by Rich, Starke and Williams JJ. (Latham 0.3. and McTiernan J. dissenting) on the return of a rule nisi for a writ of mandamus to admit to a faculty in the University of Sydney, and without deciding whether mandamus lies to the University to enforce admission to a particular faculty.

Orprr Nist for mandamus.

At the leaving examination held in November 1942, John McPher- son Drummond, then aged eighteen years, obtained a pass which satisfied the requirements for matriculation in the University of Sydney and for admission to the faculty of medicine or the faculty of dentistry in accordance with the University and University Colleges Act 1900-1937 (N.S.W.) and the by-laws made thereunder by the Senate of the University.

Upon making an application to that university for acceptance as a first year student in the faculty of medicine, or, alternatively, in the faculty of dentistry, he was informed by the registrar of the university that, in view of the limitation of numbers in both of those