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A Pyrrhic victory for miners as Moylan gets suspended sentence

Jonathan Moylan deserved the sentence he got — do the crime, do the time. But the bigger lie is the one spread by the coal industry — that we can continue to rely on fossil fuels.

Non-violent protest against coal is not going away, and the miners cannot win, no matter how much money they spend pushing doubt and reaction or how many newspapers are on their side. In fact, every victory they notch up — defeating the mining and carbon taxes, securing vast new coal mine approvals  — only ups the ante and ensures a stronger retaliation down the track.

What else do they imagine? People will give up? Let our safe climate, on which all life depends, get wrecked, just so we can put off a switch to renewables a while longer? Save a few pennies sticking to a dirty old form of electricity generation while shelling out billions on climate damage?

People won’t give up. The stakes are too high, and they’re rising, and if the coal industry can’t see Jonathan Moylan’s hoax for what it is — a sign of things to come — that is their problem entirely.

Market integrity is fundamental, no question. Jonathan Moylan was guilty of market manipulation at the beginning of last year when, while sitting in a protest camp in the Leard State Forest — which will be largely destroyed by the Maules Creek mine — Moylan sent out a fake ANZ press release from his laptop, in which the bank purportedly withdrew a $1.2 billion loan to Whitehaven Coal. The release was picked up by media and caused Whitehaven shares to plummet.

For 20 minutes or so Moylan wiped a few hundred million dollars off the market capitalisation of Whitehaven Coal, but after a trading halt and clarification the stock rebounded, and the maximum possible losses suffered that day were under half a million dollars. As it turned out, anyone who got out at the intra-day low of $3.21 — off 8% — avoided a subsequent halving of Whitehaven’s share price.

Moylan deserved the sentence he got — a suspended sentence, with a two-year good behaviour bond and a $1000 surety. Do the crime, do the time: former Greens leader Bob Brown was jailed and, as he pointed out in this passionate piece, so have the leaders of many civil disobedience movements in history. As judge Lord Leonard Hoffmann ruled in a UK case when sentencing anti-Iraq war protesters: “They vouch the sincerity of their beliefs by accepting the penalties imposed by the law.”

Judge David Davies didn’t comment in the Moylan case, but for mine the financial consequences of Moylan’s hoax were trivial compared with Richard Macphillamy’s “rumourtrage” against Macquarie Bank — surreptitiously spreading false rumours of a run on the bank’s cash management trust after the failure of Lehman Brothers — which helped send Macquarie shares as low as $15 and could have sunk the bank given the panic in the market at the height of the GFC. Macphillamy was given an 18-month ban after the Australian Securities and Investments Commission decided Macphillamy’s actions were “rash, ill-judged and wholly inappropriate”.

Moylan faced a maximum of 10 years’ jail because sentences were toughened up in 2010 in the wake of ASIC’s Project Mint investigations into rumourtrage. The chorus from the big end of town to throw the book at Moylan was out of whack with our corporate regulator’s slack record of enforcement on white-collar crime generally — contrast for example the maximum sentence available against Moylan with the ASIC’s failure to appeal a light $50,000 sentence for insider trader former Gunns chairman John Gay as my colleague Bernard Keane pointed out.

Davies accepted Moylan was genuinely contrite and that his hoax had more impact than he intended, particularly on Whitehaven shareholders; Moylan was mainly targeting ANZ for financing the project. Most importantly, perhaps, the judge said Moylan’s action was not motivated by a desire for personal gain — unlike other examples of white-collar crime, the provisions in the act were designed to prevent.

The Moylan camp believe ASIC wanted to go as hard as possible, but the Director of Public Prosecutions recognised this was a different type of offence — both from the kind of white-collar offences the act sought to prevent, and from anything Moylan had done before. So, ultimately, did Davies.

To the credit of all sides, the Leard camp has stayed non-violent and, despite dozens of arrests since, it will stay non-violent.

Outside the NSW Supreme Court on Friday was a crowd of young people cheering for Moylan. The “Stand with Jono” Twitter handle has 811 followers. My bet is plenty of them are inspired by what Moylan did and they would be prepared to do exactly the same thing. Moylan himself predicted more protest in the Newcastle Herald on Saturday.

The coal industry likes to pretend it is beset by powerful NGOs and rich foundations, and the Abbott government is right now setting about silencing them. A furore broke out a few years back when a draft strategy to frustrate new coal projects somehow leaked to The Australian Financial Review.

That strategy did not contemplate market manipulation, and no established green group could last a second if it was caught spreading false information. Lying as a means to an end would be a very short-term strategy indeed. Moylan’s prank involved lying, and any journalist listening to the verbatim transcripts available to the court and read out in Davies’ judgment would have blanched … how easy would it have been to be fooled while under the pump.

But the coal industry spreads mountains of misinformation every day. Put aside funding for climate sceptics and industry stooges in politics. Or astro-turfing campaigns like #australiansforcoal, replete with “suggested tweets”, which backfired within minutes. Or Peabody’s laughable campaign pretending that “advanced” coal using clean technology “available now” (but, strangely, not yet installed anywhere) is the solution to energy poverty in the developing world — as though Peabody cares for the poor.

The biggest lie (it’s not market manipulation, but it does artificially prop up share prices, so what is it?) is that life as we know it will continue if we burn all the fossil fuel reserves held by our big mining companies. It can’t. Last year the UN’s Intergovernmental Panel on Climate Change backed work by Carbon Tracker that showed three-quarters of those reserves cannot be burned if we want a better-than-even chance of limiting warming to two degrees.

This carbon bubble is going to burst — perhaps it has started already — and the market write-downs must follow. There are particular implications for Australia. Carbon Tracker estimated our coal reserves are “already more than double their market share of the precautionary global carbon budget for coal” — that is, we’re counting on burning twice as much coal as we should.

The coal industry knows how powerful the divestment campaign is and supporters like Sinclair Davidson, of RMIT and the Institute of Public Affairs, say environment groups mounting the argument should be prosecuted for secondary boycott provisions and/or exactly the same law that Moylan himself broke.

For an attack on freedom of speech, it is pretty hard to beat. And if the law is unjust, they will be lining up to break it. Moylan’s prank worked, and to paraphrase Bill Kelty, the battle over Maules Creek is merely a prelude: the federal and state governments’ determined push to develop the vast, uneconomic thermal coal resources of the Galilee Basin — kicked along today by Environment Minister Greg Hunt’s breathtaking approval of Adani’s Carmichael coal mine, which could become Australia’s biggest — will be the “full symphony”.

13
  • 1
    klewso
    Posted Monday, 28 July 2014 at 1:41 pm | Permalink

    What did the indolent lotus eating media - that reported without checking - get?

  • 2
    Roger Clifton
    Posted Monday, 28 July 2014 at 1:59 pm | Permalink

    Readers concerned for the greenhouse can avoid being caught up in the propaganda war between Big Coal and Big Gas. A little thought shows that it is carbon that is the main enemy of the greenhouse, not just coal, so gas should be limited as severely as coal. The IPCC’s Copenhagen Diagnosis said we need to have eliminated 80 to 95% of our recent emissions by 2050 on our way to near zero before the end of the century, so there is no room for gas in our power supply.

    Neither is “renewables” the antonym for “carbon”. We know that the world has many times more coal and gas than the greenhouse can suffer. So the use of the word “renewables” is a red herring. What we want is “non-carbon” power.

    If it is true that wind and solar can provide 100% non-carbon power, then let’s do it. But we cannot let Big Gas sneak in on the pretext that it is cleaner than coal. You can detect its authorship in the treacherous phrase, “low-carbon”. No, what we need is “non-carbon”, and that cannot include carbon from any source.

  • 3
    JohnB
    Posted Monday, 28 July 2014 at 2:36 pm | Permalink

    What Roger Clifton said.

    It is worth reading twice, if not memorising.

  • 4
    Daly
    Posted Monday, 28 July 2014 at 3:04 pm | Permalink

    Great article and yes, what we want is non carbon power! Thanks to both of you.

  • 5
    John Taylor
    Posted Monday, 28 July 2014 at 3:16 pm | Permalink

    Still waiting for the prosecutions of bank employees who intentionally rip off investors - I hear some of these “rogues” have been promoted.

  • 6
    MJPC
    Posted Monday, 28 July 2014 at 3:24 pm | Permalink

    Great article and the lies keep coming as it said.
    Last week we heard various sources waxing lyrical about “clean coal” technology, nothing like clean pollution to stuff the planet.
    Then today, AGL pushing the lie that more CSG mining in NSW would result in a drop in gas prices in the regions of 13% (I think that was the percentage). This after a weekend report of the Santos debacle in Queensland with water pollution found in two bores on adjoining farming sites. So it’s not only increasing CO2 emissions, but the carboneers want to ruin the water supply in farming areas.
    A revolution is needed now.
    And let’s not get on to base load power lies.
    Yes, Roger, all renewables can supply all the power we need, don’t be swayed by the capitalists who would rather destroy the planet for profits that realise their power sources are at the end of their days.

  • 7
    fractious
    Posted Monday, 28 July 2014 at 3:49 pm | Permalink

    Thanks Paddy. That piece in The Saturday Paper (the continuing and worsening attack on NGOs that dare criticise the government) is a distressing read - the thing with civili liberties is that once they’re gone, they’re very difficult to reinstate. One minor quibble: I think “Moylan deserved the sentence he got” is better rendered as “Moylan got the sentence he deserved”, but that’s splitting hairs in a way.

    Climate issues aside, projects like Maules Creek (and the gigantic Carmichael project) destroy - permanently - entire catchments, not to mention critically endangered ecosystems and habitats, many of which are the last vestiges of half-decent woodland in otherwise decimated landscapes. They are - in their own ways - as valuable as the GBR, and just as irreplaceable.

  • 8
    fractious
    Posted Monday, 28 July 2014 at 3:52 pm | Permalink

    Roger #2, good point re: the PR about gas - it’s ‘greenwashing’ at its insidious worst.

  • 9
    graybul
    Posted Monday, 28 July 2014 at 6:49 pm | Permalink

    Well said Roger!

    1. Adopt a generic terminology ie Non Carbon or (my preference) Carbon Free!

    2. Engage Social Media to identify / reward major Companies adopting, moving to, Carbon Free Energy!!

  • 10
    Roger Clifton
    Posted Monday, 28 July 2014 at 6:55 pm | Permalink

    I hope that I will never encourage, either by my silence or my donations, any young hero like Jon Moylan, to risk his career to obstruct an existing coal installation if it only means a new installation of gas.

    The greenhouse does need protection by the young, as they will inherit it. They have power when they march together, they have power when they vote, they have power when they rethink the assumptions of their elders. As elders, we can help by calming their hotheads and listening when they question our beliefs.

  • 11
    Liamj
    Posted Monday, 28 July 2014 at 7:00 pm | Permalink

    Good article, one strange note: “Market integrity is fundamental, no question.” No. Markets are created by regulation IOW by law & politics, and our markets have as much integrity as a safe seat preselection (eg. automated trading, insider trading, management remuneration vs performance, cartels, oligopies abusing their power etc).

    Mega-polluting corporations like Whitehaven are the deadbeat dads of business world, always busy dodging responsibility for their actions and paying only the most trivial of costs. That their irresponsibility is legal proves only that the law is a prostituted ass and ‘market integrity’ a revolting lie.

  • 12
    Mark Duffett
    Posted Monday, 28 July 2014 at 8:03 pm | Permalink

    Roger has it right, the antonym of ‘coal’ is not ‘renewables’, a point Manning would do well to take on board. He is apparently (https://twitter.com/gpaddymanning/status/475178420750409728) one of the few journos yet to twig that the world’s biggest move to renewables, Germany’s, is failing the climate on an epoch-making scale, with emissions and lignite mining rising, and all at epic financial cost.

  • 13
    JohnB
    Posted Wednesday, 30 July 2014 at 11:33 am | Permalink

    @AR:
    Can’t handle the truth, then?

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