Stand with Jono: Culture-Jamming, Civil Disobedience, and Corporate Regulation in an Age of Climate Change
Maloney, Michelle & Rogers, Nicole (Eds.) Law as if Earth Really Mattered: Wild Law Judgments. Routledge, Abingdon (Oxon), New York, April 2017, 293-323.
Posted: 29 Aug 2016 Last revised: 10 Jun 2017
Date Written: April 30, 2017
The Whitehaven Coal Hoax was a striking, wild event, which has been the subject of legal debate, political discussion, and media controversy.
On the 7th January 2013, Jonathan Moylan issued a hoax press release on ANZ letterhead saying the bank had withdrawn its $1.2 billion loan facility from Whitehaven’s Maules Creek Coal Project on the grounds that the project would harm the environment, and the climate. Whitehaven’s share price fell before recovering. In an interview, Moylan sought to explain his action:
Well, I certainly didn’t intend any harm to shareholders in Whitehaven and, you know, for the record, I do apologise. Though I won’t apologise for exposing ANZ’s dirty investments in Whitehaven Coal and the process where the local community has been totally … We’re up against, you know, a big company here and change doesn’t happen without people taking risks and I think that, you know, this kind of thing is likely to happen in the future, perhaps not me, but people are going to be taking more and more risks to ensure that our rights and our environmental rights and the rights of landholders are respected and our children and grandchildren have a future.
Moylan was charged under section 1041E of the Corporations Act 2001 (Cth) for making false or misleading statements, and faced up to ten years in prison and a $765,000 fine. After initially contesting the matter, Jonathan Moylan decided to plead guilty to the offence under section 1041E of the Corporations Act 2001 (Cth) in May 2014.
On the 25th July 2014, Justice David Davies sentenced Jonathan Moylan at the Supreme Court of New South Wales for a breach of section 1041E (1) of the Corporations Act 2001 (Cth). The ruling is a careful and deliberate decision, showing equipoise. Justice Davies has a reputation for being a thoughtful and philosophical adjudicator. The judge convicted and sentenced Moylan to imprisonment for 1 year and 8 months. The judge ordered that Moylan be ‘immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today’.
This Chapter provides a ‘wild law’ reading of the ‘Stand with Jono’ controversy. Nonetheless, it adopts a somewhat approach from a number of other Chapters in this collection. This Chapter does not engage in writing a shadow text of an existing judgment. The work is not written in the style of an antinomian, dissenting judgment. As a matter of style and substance, it seemed to be inappropriate to engage in judicial impersonation in respect of a case of impersonation. Instead, a somewhat more narrative voice seemed appropriate in covering the various strands of the Whitehaven Coal Hoax. Rather than adopt a judicial voice, this Chapter seeks to chart the polyvocal debate of the ‘Stand with Jono’ controversy. In particular, the piece highlights the clash between the stentorian legal system and the wild response of civil disobedience. Hopefully, the effect will be to encourage a ‘wild law’ interpretation of the ‘Stand with Jono’ controversy, much like the other Chapters in this collection.
This Chapter has several parts. First, it explores the question of hoaxes, culture-jamming, and subvertising – drawing comparisons with The Yes Men and Bidder 70. Second, this Chapter considers the role of the law in dealing with civil disobedience. In particular, this analysis draws upon the work of Bill McKibben and Naomi Klein. Third, this Chapter examines the question of the role of the regulator ASIC, and corporate regulation. It also considers the role of media in reporting upon such matters. Finally, this Chapter considers the Whitehaven Coal dispute as part of a larger push for fossil fuel divestment, both in Australia and elsewhere.
Keywords: Corporations Law, Climate Change, Civil Disobedience, Culture-Jamming, Hoaxes, Fossil Fuel Divestment, Direct Action, Protests
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