Recently, the Federal Court of Australia handed down interlocutory orders in favour of Malek Fahd Islamic School in its case against the Commonwealth Minister for Education and Training. The Court ordered that the Commonwealth restore funding leading to a payment to the School of about $6.5 million.
The Federal Government had utilised its vast resources in an effort to secure the shutting down of the School due mainly to the failure by past boards (which had been a nasty and volatile mix of AFIC and School directors). The prevailing political winds in Australia and in other parts of the world appear to have undoubtedly swayed the government. With a team of two Queens Counsel, two barristers and team from HWL Ebsworth Lawyers as well as a special section of the Department of Education dedicated to the matter, the Commonwealth marshalled all its forces for the battle with the School.
The School was represented only by my firm and one SC. We fought several court battles over the last two years with the Minister and the Department of Education. The School has enjoyed success in these battles with the Department and despite a loss at the Administrative Appeals Tribunal, we soldiered on and lodged an appeal to the Full Court of the Federal Court. We are still waiting for that decision and hope and expect that it will be in our favour.
The Federal Court commented during the hearing about the failure to amend the Statement of Claim in the matter of MFISL v AFIC to seek orders for amendment of the rental clause of the lease. Perram J noted that he did not understand how if the School was “successful in demonstrating that the increased rental payments in the past were in breach of fiduciary duty, how, unless the people who were acting for you fell asleep at the bar table, you wouldn’t be relieved of that obligation in the future” and asked why the summons hadn’t yet been amended to “plead the obvious” (page 15-16 of the Transcript).
As I had been agitating for almost the whole of 2016, this should have been done before the hearing of the appeal before the AAT. It always has and continues to be a fundamental and pivotal requirement of the Minister in his consideration of re-instating School funding. The Minister’s delegate has referred to it on a continuous basis in her decision to delay funding. Had it been done before the AAT hearing, it could have gone into evidence and would have probably ensured a decision in favour of MFISL. More on this below.
Justice Mortimer of the Federal Court asked, during the hearing of our Appeal, “how many individuals are holding the School to ransom in this way?”. Justice Wigney queried why the claims were not against the directors of AFIC in their personal capacity and why it was purely against AFIC. He was of course referring to directors of past Boards. Justice Griffiths asked why this important matter from a political and legal point of view was managed over the last couple of years by a junior delegate rather than by the Minister himself.
What I ask is why weren’t these questions asked by the so-called leaders of the Australian Lebanese community, in particular the Muslim community? It horrified me when I heard these so-called leaders of the community saying that the School should be put into administration. These doomsayers were supposed leaders who should have given the School community encouragement, support, and hope. Instead they were in hiding, absent without leave.
Instead they gave advice from a distance rather than being on the front line of the battles. Instead of watching from afar, they should have had the courage to go to the front lines and take the battle up to AFIC as the judges of the Federal Court have. They should have insisted that the AFIC Board at the time agree to an amendment of the rental clause. On the contrary, they hid and were missing in battle and so allowed members of the AFIC Board to hang on to their petty seats of power and to say things like “who cares, we’ll turn the School into a warehouse” as well as “if the students are on the street, the government will find somewhere to put them”.
On the brink of extinction, the School was faced with the possibility that up to 2400 students and 250 teachers and support staff would be devoid of a School and a workplace. The Government had gone to the extent of formulating an evacuation plan. The parents were panicking, students were distressed, vultures were circling, pillagers were planning and chaos was looming…… but the battle was won!
The courage and perseverance of the parents, students and staff from the outset was admirable. We were fighting the war on several fronts, the battle against the Commonwealth Minister for Education and Training, the State of NSW, and AFIC, as well as the battle against a negative mindset and fear of failure. AFIC was holding the School to ransom and refusing to agree to anything that would help the School become compliant with governments regulations, even refusing to agree to a fair market rent. Because of the noxious mix of AFIC Board members also appearing on the previous School Boards, the School had been used as a milking cow and rent was being charged at four times its market rate as well as charging rent in advance. A “troubled history” for the School, as observed by Griffiths J in his judgment last week.
It was only the determination of a select few to soldier on that kept the Schools spirits strong. Despite the fact that many students had to seek counselling for their anxiety and that local doctors were contacting me to inform me of the recent spike in young students seeking treatment for stress. The true grit of the parents, the teachers and the body of students was praiseworthy. Much more so because it was maintained in the face of community doomsayers and schadenfreude, that is, pleasure derived by someone from another persons misfortune, from the very beginning.
In the face of adversities, the “leaders” were AWOL, nowhere to be seen.
I recently saw an article written by Mr Jihad Dib, the Member for Lakemba and State Opposition Spokesperson for Education in which he compounds the doomsayer talk by starting the article with the words “time is running out for Malek Fahd Islamic School Community (sic) with the Federal Government failing to reach an agreement with the Malek Fahd School Board to extend funding to allow the School to remain open…” Not only is this spruiking doomsday, but it is also incorrect. There was no agreement ever contemplated by the Federal Minister for Education. A delegate of the Minister had simply decided that the School was not complying with the Australian Education Act and was determined to delay funding to the School.
I am advised that Mr Dib was from the very beginning suggesting that the School succumb to administration. This could do nothing but cause deep concern within the School community and place them in a negative mindset. This should never have happened. This created a new battle front and that is “fear of fear itself”. I found fighting this battle front was one of our most difficult battles.
In his article, Mr Dib states the obvious in saying that “closure of the School will profoundly impact all students…” and shares the deep concern of the parents as to neighbouring schools being unable to accommodate the students of the School should closure occur. But what action was taken to prevent this? Griffiths J himself, in his judgment last week, noted the obvious urgency and importance of the matter. This has never been in dispute. But what action, rather than platitudes, was taken in the face of this impending closure by Mr Dib and his ilk?
In his article Mr Dib states that he lobbied with other Labor MPs the Liberal Minister for Education asking that the Minister “put in place interim measures to allow the School to operate for at least the remainder of the school year”. How far did they expect to get with that feeble late effort? Why didn’t they insist publicly and privately that the Minister himself manage the case rather than delegate it to a delegate, a minor functionary in the department ? The Federal Court stated that this was an important case on the political, social and community level and required better representation than just a delegate. Why didn’t these MPs complain that the delegate had little regard to the ramifications of the school closure? Why were there no adequate contingency plans in place?
How can the MPs lobby for the School to remain open only until the end of the school year? This, in itself, is mind boggling. The School deserved to have the decision to delay funding overturned and funding be restored permanently, not merely until the end of the School year.
After a long drawn out battle with the Federal government we won last week’s Federal Court judgment in the Schools favour not only restored funding to the School that had been delayed by the Minister, but also prevented the Minister from being able to delay payments until further order of the Court. It also restored hope, faith and confidence in the students and a new courage to face the future.
Mr Dib says he was lobbying the State Minister for Education, however the State continues to prosecute its case against the School as vigorously as ever.
Whilst Mr Dib notes that the School board is addressing the governments concerns and is committed to “achieving the necessary lease agreement to enable the School to remain open”, he makes no mention that it was AFIC stood in the way of that achievement. He also makes no mention that he pressured AFIC to do otherwise. AFIC was the school’s nemesis and the MPs and community leaders were failing to address this front. They would have heard that AFIC was prepared to dispose of the school to the highest bidder, and that as afar a AFIC was concerned that could turn the School into a warehouse and the government could find somewhere for the children to be placed.
The recent election of Dr Rateb Jneid as AFIC president was a breath of fresh air for the school. It was my relentless pressure to convince the School and new AFIC Board to meet at my office and come to a heads of agreement that lit the way forward. I and the cautiously optimistic school are grateful to Dr Jneid, who is genuinely concerned about the school’s plight, for facilitating the way forward in every way required. This after many years of pillaging of the school by past AFIC boards.
At the Federal Court of Appeal hearing, Perram J was, with respect, correct when he questioned whether he was “right in thinking that, if the people standing behind AFIC put their hand up, that would solve all of your problems effectively, wouldn’t it?” Rather than pressuring AFIC to put their hand up, Mr Dib and the other so called community leaders were missing in action, shying away from the front line when their community needed them most.
Now Mr Dib and other community representatives have vacuously said they continue to offer support for the students, parents and staff. Jumping on the bandwagon of success bitterly fought for and won by others. This is long after the battle had been won and the dust of the battle had settled. Far too little, too late.
Fortunately, we with the School Board were able to fight the good fight ourselves with strength from the unwavering spirit of a strong body of students, parents and staff. I commend them.