Forum Article Category: Article

Planned litigation is a form of litigation used by human rights organisations around the world. However, the full scope of this method is not widely known in Australia. This article outlines the full scope of what is known overseas as planned litigation. It also undertakes a preliminary review of litigation in the High Court by Australian human rights organisations and finds both that there are some indications of a lack of success in such litigation and that there is little evidence of the use of planned litigation. It then argues that its outline of the details of planned litigation along with such preliminary data forms a basis to begin a discussion in Australia about whether Australian human rights organisations should experiment with greater elements of planned litigation. Finally, it outlines ways in which planned litigation might improve the effectiveness of High Court litigation by Australian human rights organisations and factors that might affect the viability of such a use of planned litigation.

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‘[c]ertainty generally is illusion…’ [1]

In pondering the High Court’s 2016 constitutional law term it is hard to ignore the broader commentary of the year. For The Economist, 2016 was the ‘year of shocks’.[2] The Sydney Morning Herald noted that 2016 had been given the inauspicious and not easily obtained title of the ‘worst year ever’, citing any number of events from Brexit and the war in Syria to the loss of countless musical and acting legends as well as the likes of Justice Antonin Scalia and Muhammad Ali.[3]

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