This article argues that human-caused climate change reveals previously unrecognised or overlooked aspects of the liberal concept of private property. It suggests that the concept of private property facilitates the ʻclimate-change relationshipʼ, a connection between human activities, the natural world and the human consequences of climate change. Based upon this link, the article offers four reflections on private property and its role in global phenomena like climate change: first, that the ʻideaʼ of private property (the popularly held belief about what it is) is a primary culprit; second, that private property is ʻsovereigntyʼ, power over others, which gives its holders global reach; third, that because the idea informs the exercise of sovereignty, private property makes eco-colonialists of individuals; and finally, that the future of private property may require us to give greater attention both to a shift in the idea and a global focus regarding the concept. While these ruminations are preliminary and programmatic, what they necessitate is further research and a willingness to rethink and reconceive the liberal foundations of the way we live with and relate to others.
This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action.
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