Self-righteous Greens must obey law

In The Australian today:

“If you are going to steal,’’ they say in America, ‘‘steal big.’’ Jonathan Moylan did just that: by issuing a fraudulent ANZ press release claiming the bank had withdrawn its support from the Maules Creek mining project, he knocked $300 million off the market capitalisation of Whitehaven Coal.”

About Henry Ergas

Henry Ergas is a columnist for The Australian newspaper and the inaugural Professor of Infrastructure Economics at the SMART Infrastructure Facility at the University of Wollongong. The SMART Infrastructure Facility is a $61.8 million world-class research and training centre concerned with integrated infrastructure solutions for the future. Henry is also Senior Economic Adviser to Deloitte Australia. Prior to these concurrent roles Henry worked as a consultant economist at NECG, CRA International and Concept Economics. Henry's previous career was as an economist at the OECD in Paris, where amongst other roles he headed the Secretary-General’s Task Force on Structural Adjustment and was Counsellor for Structural Policy in the Economics Department.
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33 Responses to Self-righteous Greens must obey law

  1. JohnA

    And our asinine legal system again separates the action from the consequences.

  2. Token

    And our asinine legal system again separates the action from the consequences.

    Thank you Henry for writing this article.

  3. Dr Faustus

    The basic tenet of assymetrical warfare is that the cost to the attacker must be small and the cost to the attacked large. Nice to see the DPP and the NSW Supreme Court is good with this principle.

    Now that the legal defence of ‘not trying to make a profit’ has been established in mitigation of serious and deliberate criminal behaviour, get ready for shit on a stick from the activist industry.

  4. Alfonso

    ‘Self-righteous Greens must obey law’.
    No they mustn’t, Court just confirmed that.

  5. stevem

    A $1000 fine and a 20mth suspended sentence. I’m sure he was represented “pro bono” – although I’d have to question how any good was done in this case. I can’t see how this is anything but a huge encouragement to similar economic vandals well meaning activists.

  6. kevin

    More importantly, the judiciary must be required to APPLY the law. Far too often we get the bench’s application of its own ideology. Contrary to how magistrates think and operate, they do not own the law. It belongs to the people

  7. Joe

    Simple solution.
    Ban ALL lawyers from taking a seat on any court bench.

  8. Token

    I can’t see how this is anything but a huge encouragement to similar economic vandals well meaning activists.

    Except for for ethical reasons, why wouldn’t corporate organisations in cohoots with unions set up units to conduct such actions when it suits for industrial actions and to spike a corporate competitor?

    All they have to do is make sure the funding situation is muddied or ensure they have Greens doing the dirty work to ensure the judiciary endorses the crime (with a wrist stroke like Moylan got).

  9. Ms Dolittle

    Trying to be positive, what are the odds that Moylan will be able curb his activism for 2 years? People like him just can’t control themselves. Trouble is when he breaks his good behaviour bond they’ll probably just beat him with a feather again.

  10. Ms Dolittle

    When I had the pleasure of meeting Henry Ergas last year, I mentioned that his articles always gave me a giggle in the morning while I sud, sud, sud around making the kids school lunches. He responded that he wished his wife felt the same way.

    Sadly, I received no cheer from this article and the butter was so cold I made angry holes in the sandwiches.

  11. KC

    Interesting to see if there is a push for an appeal against sentence by the Crown on the grounds of ‘manifest inadequacy. Would have thought there were grounds given the offence carries a maximum 10 years gaol.

    This is because he pleaded to breaching section 1041E of the Corporations Act which reads

    1041E False or misleading statements
    (1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if:
    (a) the statement or information is false in a material particular or is materially misleading; and
    (b) the statement or information is likely:
    (i) to induce persons in this jurisdiction to apply for financial products; or
    (ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or
    (iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction; and
    (c) when the person makes the statement, or disseminates the information:
    (i) the person does not care whether the statement or information is true or false; or
    (ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading.

    The real mischief the provision is addressing is not so much ‘market manipulation’ but the fact the market requires ‘perfect information’ to operate: telling whoppers that impact the market is the punishable conduct. That’s why the maximum penalty is 10 years. The fact you’re not making $$ out of it but rather for political reasons strikes me as not being relevant as to the sentence. General and specific deterrence requires this sentence to be reviewed if this is perceived as a green light to the proposition of putting false information into the market place isn’t TOO bad if done for political purposes.

  12. incoherent rambler

    I am in a vicious mood.
    There is a judge who needs to be immediately dismissed (NSW seems to have more of a problem than other states).
    Change the maximum penalty to 45 years and appeal the sentence.

  13. .Dr.Sir Fred Lenin

    Judges and magustrates should be on one year contracts,performance based they should be paid an hourly rate ,and compelled to work in amenial job for three months per year,at the low rate of pay.this would familiarise them with real life,they should also retire at the normal time ,and pay all their ipown super.price control should be introduced onlawtradespersons fees,and strict ATO supervision on the law trade ingeneral. Legal aid should only be given to the real poor,and paid to lawtradespersons at the lowest hourly rate.All funding to law faculties by the Taxpayer should cease,we have more than enough lawtradespersons as it is why pay for more?

  14. Jessie

    James Houghton and James Student vs Simon Arms [2006 HCA59]
    source: High Court Judgement Summaries 2006

    Jonathon Moylan, a translator was an activist for Front Line Action on Coal. Aligned to Leard Forest Alliance.

    42. At about 11:53 am Stephen Ries, the Senior Manager of Media Relations at ANZ, called the telephone number on the false media release for Toby Kent. He heard the voicemail message identifying the speaker as “Toby Kent from ANZ”. Although he left no message a copy of his number was recorded on the Offender’s phone. At around 12.19 pm the Offender called Mr Ries and identified himself by saying, “This is Toby Kent from ANZ”. Mr Ries replied, “That is remarkable because Toby Kent is sitting right next to me”. The Offender replied, “No, this really is Toby Kent from ANZ”. Mr Ries replied, “No, you’ve called the media department at ANZ. I know Toby Kent well. He is English and speaks with an English accent.” Mr Ries asked the Offender what group he was with, but the Offender terminated the call.
    45. At around 12.58 pm the Offender used his computer to create a new media release on behalf of FLAC entitled “ANZ Caught by Spoof”. He sent this media release from [email protected] to the same addressees as his earlier email which had attached the false media release. This further release said as follows:
    87. Since finishing his studies he has been involved in various employment activities such as working with Greenpeace and completing research for the Wilderness Society.

    R v Moylan [2014] NSWSC 944

  15. Andrew

    Interesting to see if there is a push for an appeal against sentence by the Crown on the grounds of ‘manifest inadequacy.

    Unlikely – since it was at the Crown Prosecutor’s request that he was let off. Didn’t even impose the same conditions as the Chaser Boys of not undermining the apology – he was free to write in the Guardian the very next day (of course quoted heavily by their ABC) about how it was the Right Thing to Do.

    And of course all the luvvies got exactly the intended message – they should have gone further to kill off Ebil Coal and will do so next time.

    Can’t blame the judge – he could have overruled the joint sentencing submission but was never likely to.

    I’ve written to Brandis666 to express my disgust at the prosecution.

  16. Jessie

    Too many links, reposting

    Also article: p5 Misleading and Deceptive Conduct and Public Debate

    James Houghton and James Student vs Simon Arms [2006 HCA59]
    source: High Court Judgement Summaries 2006

  17. Zulu Kilo Two Alpha

    Trouble is when he breaks his good behaviour bond they’ll probably just beat him with a feather again.

    My nasty, suspicious nature says that this sentence may well set a precedent – “May it please this Court, I would refer the Court to the case of Crown Versus Moylan, and ask that the Court extends similar leniency
    to my client.”

  18. Jessie

    Jonathon Moylan

    R vs Moylan [2014] NSWSC 944
    42. At about 11:53 am Stephen Ries, the Senior Manager of Media Relations at ANZ, called the telephone number on the false media release for Toby Kent. He heard the voicemail message identifying the speaker as “Toby Kent from ANZ”. Although he left no message a copy of his number was recorded on the Offender’s phone. At around 12.19 pm the Offender called Mr Ries and identified himself by saying, “This is Toby Kent from ANZ”. Mr Ries replied, “That is remarkable because Toby Kent is sitting right next to me”. The Offender replied, “No, this really is Toby Kent from ANZ”. Mr Ries replied, “No, you’ve called the media department at ANZ. I know Toby Kent well. He is English and speaks with an English accent.” Mr Ries asked the Offender what group he was with, but the Offender terminated the call.
    45. At around 12.58 pm the Offender used his computer to create a new media release on behalf of FLAC entitled “ANZ Caught by Spoof”. He sent this media release from mediaatanzcorporate.com to the same addressees as his earlier email which had attached the false media release. This further release said as follows:
    87. Since finishing his studies he has been involved in various employment activities such as working with Greenpeace and completing research for the Wilderness Society.

  19. Grey ghost who walks

    Moylan perpetrates a most unspeakable crime and the pathetic judge lets him off by giving him a slap with a perfumed handkerchief!
    Pity the poor people on the receiving end of this. When will the governments both Federal & State develop some spine for a change? They have had too easy a ride for years now.
    I don’t see the loquacious Brandis doing anything positive.

  20. Peter H

    This sentence should be challenged, as manifestly inadequate. A crime was committed which carries a gaol term, and it should have been applied in this case. I find the sentence unacceptable.

  21. Demosthenes

    Thanks for the links, Jessie. Seems the prosecution couldn’t show Moylan knew investors would be hurt, and the damage was temporary, lessening the severity and therefore the sentence. Combined with the discount for a guilty plea, contrition blah blah, and the fact that previous market manipulation cases had suspended sentences, brought it down to the eventual good behaviour bond so he doesn’t protest in ways that damage anyone. He got off easy.

  22. Tintarella di Luna

    Does the all-seeing all-knowing Cat know the antecedents of Jonathan Moylan? Where did he develop those sharply honed skills in dissembling? Who paid for the high end Counsel because “justice” only comes to those who pay.

  23. Token

    Seems the prosecution couldn’t show Moylan knew investors would be hurt, and the damage was temporary, lessening the severity and therefore the sentence.

    That statement indicates the person making the judgement does not understand financial transactions.

    There is a judge who needs to be immediately dismissed (NSW seems to have more of a problem than other states).
    Change the maximum penalty to 45 years and appeal the sentence.

    Absolutely. That statement indicates the relevant official is not competent to hold office.

  24. George Brandis thanks for NOTHING

    I don’t see the loquacious Brandis doing anything positive.

    Par for the course.

    It’d be a lot cheaper just to prop a mannequin in his swivel chair, for all he good he does.

  25. johanna

    What stinks to high heaven is that the prosecution told the court that they weren’t seeking a custodial sentence, and virtually ran his defence for him.

    This made it almost impossible for the judge to give him more than a fine (which the activists will pay on his behalf) and a bond. The prosecutor should be sacked.

    It is ludicrous to suggest that Moylan, who is clearly not stupid, wasn’t aware that trashing the reputation of a listed company by fraudulent means would harm investors.

  26. Mk50 of Brisbane, Henchman to the VRWC

    Maybe the easiest thing to do is to get a few miners to wander over to his place and kick seven bells of buggery out of the little bastard.

    y’know, the union way.

    if it’s good enough for the BLF….

  27. Zulu Kilo Two Alpha

    It is ludicrous to suggest that Moylan, who is clearly not stupid, wasn’t aware that trashing the reputation of a listed company by fraudulent means would harm investors.

    I did find his claim not to have thought that there would have been so much of a volume of trades, based on his false Press release, to be ludicrous.

  28. Zulu Kilo Two Alpha

    Maybe the easiest thing to do is to get a few miners to wander over to his place

    If his little game stats a trend – as I have no doubt it will – I’ll be volunteering my services, as a self funded retiree..anything which will affect the value of my portfolio causes me to reflect on the manner of Mr Moylan’s passing – slowly and painfully…

  29. Cold-Hands

    Are there sufficient investors who sold at a loss following Moylan’s fraud to sue him? A class action suing him for damages is one way to punish him, making the process the punishment. This presupposes finding a law firm to act pro bono or no win, no fee- unless there’s some white knight prepared to finance the action.

    I don’t suppose the judge hearing this case will be equally as lenient? After all, no one got hurt…

  30. James of the Glen

    Surely the judgement can be appealed so as to throw this bog-witted peasant in the slammer?

  31. Staphy

    I’m glad he got off.

  32. Johathan moylan leads a charmed life when it comes to the judicial system. On 19 November 2009 justice blanch quashed a $5,000 compensation order against moylan and 3 others following misbehaviour at the Tomago aluminium smelter.
    On 8 February 2013, moylan had a $1,204 compensation order quashed by judge tupman, after misbehaving at the South East Fibre Exports mill. Despite there being sufficient evidence to satisfy a magistrate, judge tupman ruled: “The evidence it seems to me does not allow for an order for compensation because the evidence was poor to support the quantum of that.” Judge tupman then went on to say “I also find a degree of illogicality in the proposition that effectively the South East Forest Alliance might pay compensation to a woodchip company.” A cynic might argue it was the latter reason, rather than the evidence of financial loss was influential in having the compensation order quashed.
    While the conviction for the original criminal conviction was upheld, the fine was reduced from $900 to $300 and the good behaviour bond was reduced from two and a half years to 9 months.
    If past behaviour is any indication of future conduct, we haven’t heard the last of mr moylan.

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