8 AusTRAlIAN QuARTeRlY OCT–DEC 2017hEADinGiMAGE: © Pax Ahimsa Gethen-WikiWe are on the brink of
catastrophic climate
change and our
judicial system is more
concerned with some
coal mine investors
losing money.
has resulted in wider regulatory capture,
as recently acknowledged quite openly
by Senator Matthew Canavan, former
Minister for Industry, Innovation and
Science, who posted to Facebook: ‘It has
been such an honour to represent the
Australian mining sector over the past
year.’^27If you can’t beat ‘em... move the
goal posts
This regulatory capture is also
clearly reflected in the legal changes
discussed above. For example, the anti-
protest laws introduced in Tasmania,
Western Australia, NSW and Victoria
(now repealed) were all explicitly
designed to protect the ‘rights of
business’ – particularly those of mining
companies.^28 While the governments in
each state sought to reassure the public
that these new laws would ‘continue
to protect the rights of lawful protest’,
this neatly sidesteps the issue that the
common law defines ‘lawful protest’ asthose activities that have not yet been
rendered unlawful – meaning that it
would be impossible by definition for
the law to restrict lawful protest.^29
The first case under the NSW anti-
protest laws took place in May this year
against three members of the Mudgee
District Environment Group, who were
charged with ‘rendering a road useless
and obstruction’.^30 The three community
members had been peacefully protest-
ing the expansion of Wilpinjong Coal
Mine in the upper Hunter by forming a
human blockade on the road. They now
face up to 7 years in prison. Meanwhile,
former Greens leader, Bob Brown, is
challenging the Tasmanian laws in the
High Court on the grounds that they
unconstitutionally breach the implied
freedom of political communication.^31
other attempts to peacefully protest
mining have also met with a draconian
regulatory response, as Jonathan Moylan
discovered in 2013 when he pranked
the share market a little too successfully.
on 7 January that year, Moylan issued a
hoax press release on an ANZ letterhead
purporting to withdraw a $1.2 billion
loan from Whitehaven’s Maules Creek
mine project because the project
would harm the environment and the
climate.^32 The hoax temporarily affected
Whitehaven’s share price and some
investors lost money as a result. When
an ABC journalist asked him about this
impact, Moylan responded:
‘Well, I certainly didn't intend any