A case involving a suggested ambiguity of the Bankruptcy Act 1966 (Cth) whereby civil proceedings were stayed on bankruptcy and whether the Act should be interpreted so as to exclude any applications to public law proceedings brought for the vindication of a public (as distinct from private) right 37 .
A case concerning imputed bias by reason of a judge’s earlier retainer, whilst a barrister, for a party to litigation in suggested breach of the requirement in article 14.1 of the ICCPR that a person have a “fair and public hearing by a competent independent and impartial tribunal established by law” 38 .
A case concerning whether the common law provides an enforceable right to speedy trial 39 having regard to the terms of article 14.3 of the ICCPR .
A case concerning a right of a mute person to have an interpreter assist her understanding of evidence and argument given in open court in proceedings concerning her, having regard to the terms of articles 14.1, 14.3(a) and (f) of the ICCPR 40 .
A case involving the right of a litigant in person to have, as costs, expenses necessary for attending court by reason of the promise of “equality” before the courts and tribunals under Article 14.1 of the ICCPR 41 , notwithstanding earlier court decisions to the contrary in England.
A case involving the imposition of a fine upon a bankrupt, invalid pensioner prisoner of $60,000.00 as punishment for contempt of court, having regard to the prohibition on “excessive fines” in the still applicable Bill of Rights 1688 (GB) 42 .
An appeal by a convicted contemnor involving an asserted denial of his right to have his conviction and sentence reviewed by a higher tribunal according to law as article 14.5 of the ICCPR requires, when all that was provided was an entitlement to seek special leave from the High Court of Australia to appeal against conviction 43 .
There are many other Australian cases which could be mentioned in this context, including cases in the Federal Court of Australia 44 , the Family Court of Australia 45 and in the Court of Criminal Appeal of New South Wales 46 . In many of the lastmentioned decisions, a feature of the reasoning is the reference by the judges, not only to the text of a relevant international instrument, but also to the development of the jurisprudence by courts, tribunals and committees – particularly the European Court of Human Rights – which elaborate and explain the fundamental norms.
In New Zealand, the vehicle of the New Zealand Bill of Rights Act , although not constitutionally entrenched, gives an established framework for the reference to analogous jurisprudence developed around similarly expressed provisions in international law. The same is true of India Sri Lanka and countries of the “new Commonwealth” which have written constitutions incorporating a detailed Bill of Rights. In Australia and England there is no similar charter of enforceable rights although a Bill has been introduced into the United Kingdom Parliament to incorporate the European convention into domestic law. Meanwhile, the absence of a constitutional charter has not stopped the courts, in the manner suggested in the Bangalore Principles , from utilising international law where a relevant gap appears in the common law where a statute falls to be construed which is ambiguous.
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THE ROAD FROM BANGALORE THE FIRST TEN YEARS OF THE BANGALORE PRINCIPLES ON “THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS“
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