A court case attempting to shut down a non-government school has been rejected. The constitutional grounds for the challenge, including an allegation that the funding being provided by the Commonwealth Government 'established' a religion, were rejected by the judge in a recent decision.
Malek Fahd Islamic School (the School) is a non-government school. In 2011, it established a campus at Hoxton Park, in NSW.
In June 2014, an association called the 'Hoxton Park Residents Action Group Inc' (the Residents Action Group) brought a Supreme Court challenge. The presiding judge, Justice Pembroke, said that by the 'lengthy, muddled and unsatisfactory litigation', they 'effectively seek, for all intents and purposes, to bring the operation of the School.... to an end'. Justice Pembroke went on to describe the grounds of the challenge as 'tenuous'.
The Residents Action Group had submitted to the Court that the funding of the school 'has given effect to the establishing of the Islamic faith in Australia and Hoxton Park'. It went on to say that this would 'otherwise not be possible as [the Hoxton Park campus] is heavily dependent for its existence on Commonwealth funding'. Justice Pembroke found that this was 'sorry logic'.
Justice Pembroke commented that 'the school's essential features were no different in any material sense to those of other independent non-government religious schools'. His Honour went on to find that the time spent on religious education at the school (Islamic studies) was consistent with Board of Studies, Teaching and Education Standards (BOSTES) requirements. Further, 'a significant percentage' of the teachers were non-Muslim, and for two years, the School had a Catholic Executive Principal.
The School itself is open to students of all faiths. In fact the Court said that:
- 'Although the enrolment policy specifies that one of the criteria that is taken into account is ‘a commitment from the family to support the School’s Islamic ethos and values’, there is no formal requirement for admission that pupils be Muslims. And the Constitution of the [School] provides that one of its objects is to establish the School to provide ‘a balanced general education in an Islamic environment to Muslim and other children’.
- 'It is pertinent to note that one of the traditions of the School is the hosting of a School Interfaith and Cultural Exchange with a school of a different faith. In 2013 that event lasted three days and involved students from Brigidine Christian College. The School ‘welcomes students from other religious organisations and schools for a cultural exchange’.
On the grounds for constitutional challenge, the Court found that the Commonwealth funding did not 'establish' religion, 'impose religious observance' or 'prohibit' religion. The arguments, as they were advanced, were found to lack logic. The entire case was dismissed.
Although Justice Pembroke stated that 'it is not necessary for me to consider the motivations of the plaintiffs in bringing these proceedings, whatever they may be or whatever one might think of them' in relation to the legal determination, it is clear that the litigation was brought in opposition to the School's religious ethos.
This is not the first time that the School has been subject to litigation, and from this group. In 2010, the establishment of the Hoxton Park Campus was also opposed by the same group.