A legal bid to block federal funding for an Islamic primary school in Sydney’s west has been thrown out by the New South Wales supreme court.
The litigation, which judge Michael Pembroke described as “lengthy, muddled and unsatisfactory”, was the latest round in a five-year campaign by former One Nation candidate Marella Harris and the Hoxton Park Residents Action Group to close the Malek Fahd Islamic school, which has operated a campus in the area since 2011.
The school received close to $19m in federal funding in 2013, which the plaintiffs said contravened a constitutional ban on the government “mak[ing] any laws for establishing any religion, or for imposing religious observance, or for prohibiting the free exercise of any religion”.
They argued that without federal money the school’s Hoxton Park campus could not have been built, and thus the commonwealth had “given effect to the establishing of the Islamic faith in Australia” and the area.
It was also claimed that the school, which had around 87 students in 2013, imposed religious observance on its pupils by the “saying of prayers liturgy, the wearing of clothes, and livery of a particular kind associated with the religion”.
Lawyers for Harris stressed they did not seek to cut funding to other schools linked to religious institutions, only this one.
Pembroke said the case, which was opposed by the NSW crown solicitor and the Australian government solicitor, rested on “sorry logic”. He awarded costs against Harris and the action group.
He said the school had “a significant percentage” of non-Muslim teachers and a former principal had been a Catholic. Time spent on Islamic studies was in line with NSW board of studies guidelines, he said.
Even if the school did impose religious beliefs on students, parents had chosen to send their children there, he added. “No law or action by the commonwealth operates to compel any person to attend the school or its Hoxton Park campus.”
The case was argued by solicitor Robert Balzola, who has featured in campaigns against building mosques in Bendigo and Canberra and acted for Bernard Gaynor, a former army intelligence officer dismissed for airing anti-gay sentiments.
The action group managed to have the school’s development approval overturned in a separate lawsuit in 2012, which briefly threatened to shut the campus down.
The Malek Fahd Islamic school, which is linked to the Australian Federation of Islamic Councils, had its federal grants frozen in 2013 after allegations of financial mismanagement, but the funding has since resumed after the issues were resolved.
This article has been amended to remove an incorrect reference to Marella Harris being a member of the Q-Society.
