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.
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”.