The Code – podcast interview transcript

Educational

Transcript of Mik Aidt’s interview with corporate lawyer Robert Hinkley about The Code

00:03 – 00:28
Antonio Guterres: “We are rapidly reaching the point of no return for the planet. Our world needs climate action on all fronts. Everything, everywhere, all at once. Every country must be part of the solution.”

00:18 – 00:25
Mik Aidt: United Nations chief António Guterres: ‘The longer we wait’, he says, ‘the harder it will become.’

00:25 – 00:59
Movie clip: “How did you end up in here?” “Ah well, I tried to start a revolution, but didn’t print enough pamphlets. So hardly anyone turned up, except for my mom and her boyfriend who I hate. But I’m actually organising another revolution. But I don’t know if you’d be interested in something like that? Do you reckon you’d be interested?”

00:44 – 00:45
Female voice: “The climate revolution.”

00:46 – 01:17
Mik Aidt: The Climate Revolution is a place where we allow ourselves to go both deeper and higher – and to think or dream bigger, because we have the time to do so. In our weekly programs, The Sustainable Hour, we tend to be somewhat too busy for that. And I know that you might be thinking now, ‘A full hour? I don’t have time for that!’ But hey, you could be doing things while you listen. Especially if you’re listening from your phone. You know, you can be moving in transport from A to B, or cleaning, or something.

01:18 – 01:26
News reader: “The United Nations wants countries to declare a climate emergency to lift the sense of urgency in combatting global warming…”

01:26 – 01:50
Mik Aidt: The Washington Post had a headline the other day that said: ‘World is on the brink of catastrophic warming’. Maybe in that light, investing one hour in something that potentially could transform the world and enable us to deal with this catastrophe, this humanity’s emissions crisis, could be seen as a tiny but potentially important thing to do.

01:50 – 02:01
Robert Hinkley: It’s a simple answer. It’s a simple solution that works everywhere. It’s a project that the people of the world can embark upon together.

02:01 – 02:22
Mik Aidt: Today in this, which is the fourth episode of The Climate Revolution, I’ll be talking to a corporate lawyer, who’s got a great idea, and this will be the opening of a whole series of a new hunt for revolutionary or transformational ideas. My name is Mik Aidt – and welcome! You have arrived at The Climate Revolution.

02:26 – 03:19
Robert Hinkley: People wonder why we haven’t been able to solve the problem of climate change and global warming. What they don’t know is that the reason is hidden in the corporate law. Most people don’t understand that we would not have corporations if government didn’t pass a law allowing them to exist and licensing them to operate. It also directs how the people in charge of corporations are to behave, and this is where there is a flaw. That flaw exists when big corporations find themselves doing significant damage to the environment, and their directors are told that they have to protect the company’s assets which are causing this damage. The Code for Corporate Citizenship would change this.

03:20 – 03:54
The code is a simple amendment to the duty of directors, which is included in the corporate law of every jurisdiction in the world. And that law says it’s the duty of directors to act in the best interests of the corporation. And that includes among other things, protecting the assets of the corporation. And that seems perfectly logical until you look at the situation that we have now with the environment.

03:59 – 04:20
ABC News report: “There’d have to be a million fish dead within one kilometre of the river.”
News reader: “We got new scare coming in here as we speak.”
Weather reporter: “Oh man!”
Resident: “I don’t want to die. I don’t want me or the kids to die.”
News reporter: “This town is cloaked in darkness…”

04:20 – 04:41
Robert Hinkley: In that circumstance, a limited number – a small number, really – of big companies are engaged in businesses which cause severe damage to the environment in the form of greenhouse gas emissions, global warming and climate change.

04:41 – 05:08
And every year for the last 20-some years, the world has gotten together at a Conference of the Parties, the COP. The most recent was COP27 in Egypt. And everybody talks about how they’re going to reduce greenhouse gas emissions and the farthest they’ve been able to get is basically for all the countries of the world to pledge to reduce greenhouse gas emissions.

05:08 – 05:41
The problem is when those people leave the COP and they go back to their countries of origin, they’re unable to deliver on those pledges. They’re unable to pass legislation that requires the big companies that are causing the problem to reduce their greenhouse emissions. And the reason for that is: all of those companies have directors, and all those directors are told what they must do by the corporate law and the corporate law, as I said before, says

05:41 – 06:24
they must act in the best interest of the company, and that means preserve the value of the company’s assets. Now, the problem is, these companies have billions of dollars invested in their facilities, their products and they’re not willing to write those investments off voluntarily. The law tells them, they shouldn’t. So what happens is they battle to continue to be able to use those facilities the way they are – in a way that is causing the problem that we’re all having now. And so, as a result, global warming continues to bear down on us.

06:26 – 07:22
News reader: “One of the deadliest tornadoes in Mississippi, almost wiping towns off the map.
News reader: “Taking stock of the inconceivable losses
Bushfire victim: “Yeah, like, I’ve lost everything. All my clothes are, like, these are the clothes that I’ve got.”
News reporter: “Clearly, the level of devastation in terms of infrastructure, in terms of people’s homes and businesses is very high, and it will have a multi billion dollar price tag.”
Antonio Guterres: “Climate change is the crisis of our lifetime. It is the defining issue of today’s world. So if we are not able to reverse the present trend that is leading to a catastrophe in the world, we will be doomed.”
News reader: “A state of emergency has been declared in New Zealand after Cyclone Gabriel…
Sir Richard Attenborough: “We will face the collapse of everything that gives us our security.”
Ban ki-Moon: “We need a revolution. Revolutionary thinking, revolutionary action.”

07:22 – 08:25
Mik Aidt: The United Nations have been calling all world leaders together now for these climate pow-wows every year for 30 years, and the climate activists have been walking up and down the streets, blocking the traffic, and throwing paint on windows and doors, and petitions have been signed by the millions, politicians’ doors have been knocked in, while innovators and technicians have been working hard in their laboratories developing new ways of generating electricity that doesn’t pollute the atmosphere, or that can even take out the CO2 from the atmosphere, all of this with absolutely no effect. No effect whatsoever on the graph that shows how the concentration of greenhouse gases keeps rising steadily year after year after year.

08:09 – 08:13
Movie clip: “How bad is it?” “That’s the problem, sir. We don’t know!”

08:13 – 08:24
Mik Aidt: The numbers that we scientifically can measure showing the development, what’s happening to our atmosphere and to the oceans, are screaming one word at us all: Failure!

08:25 – 08:30
ABC Lab documentary: “We’re going the wrong way.”
Firefighter: “They are killing us, they are killing Australia.”
COP27 speaker: “Decisionmaking and action…” (applause)

08:31 – 08:55
Mik Aidt: Failure, United Nations, IPCC. All these Conferences of Parties, the global climate summits: failure! Climate activists – the whole climate movement – and all the innovators: We’re not seeing those results that we would like to see. We need to flatten the curve, we all know that, but the curve keeps rising. It keeps going up every year. And what this means ultimately is that in a few hundred years from now, this blue green planet, this planet that we call home, where life has been thriving for millions of years, could be looking something like Venus, or Mars, in a couple of hundred years: A hot-hell red and dead planet with only maybe some bacteria that will be able to survive. That’s what all this talk about temperature rises actually means. Because once we reach a certain threshold, it could get out of hand, and an average of 4 degrees temperature rise globally would suddenly become 5, then 6, and 8 – and suddenly, there we go. The darkest clouds in the horizons are those that actually mean collapse of that world that we knew. Collapse of not just – as we’re seeing now – of bridges and railways, but of our democracy – with people starving, scrambling for food, or fighting about it, people who’ve lost their homes, their livelihood. Pain, suffering.

Movie clip: “And the humans. What can they do but burn?”

09:55 – 10:15
Mik Aidt: And what that perspective means is that we’ve been a lot of people who say: ‘No! Failure is not an option!’ So we keep looking for solutions, or we keep trying to invent something that could even become a better one. We are on the lookout for the climate grail.

10:15 – 10:24
Movie clip: “What is is your quest?” “I seek the grail.”

10:24 – 11:23
Mik Aidt: I think everyone in the climate movement, certainly, is looking and hoping that we will come to some point, there will be some catalyst, some unique idea that will spark and ignite a worldwide climate revolution, that will turn everything upside down and suddenly everyone will be together on the same page working on the solutions and fixing the problem – a world where we are not just agreeing on paper that we ought to fix this problem and get it on the control, sometime in 2050 or something, no, where we will stop the carbon emissions here and now. Stop that burning of coal and oil and gas. Stop chopping down the trees. And where it has an impact. Where we can actually see the effect of it on these scales – the PPM graph that shows how much CO2 there is out there in the atmosphere. I know, I’m sure, that there is a ‘grail’ hidden somewhere. We just haven’t found it yet. But so many people on this planet are looking for it.

11:23 – 11:25
Robert Hinkley: The code is a new idea that hasn’t been tried yet.

11:26 – 11:49
Mik Aidt: Then again, of course there’s also many people who are afraid of it, in a way, because that’s how we are – human beings, we know what we have. So we don’t like change. We’ve enjoyed life, many of us. So why should we want change? Why should we want to listen to these scientists who are telling us that we must electrify and decarbonise and stop burning stuff? ‘No, it’s working fine. Don’t disturb our way of life!’

11:50 – 12:22
So, what’s building up there in the horizon is the intergenerational struggle where we see the young people getting more and more angry and frustrated, because they can see what’s coming at them, and they have nothing to lose in this fight. All they have is the fear, the anxiety, the sleepless nights. The tears. On tv we see the homeless people, people who’ve lost everything – and then we have others who are laughing all the way to the bank, saying: “Ah, it’s all a hoax, there’s no climate change!” – with all the money they are making in the fossil fuel industry at the moment.

12:23 – 12:32
ABC Business news reader: “Looking at the movers, among the best performers today were coal miners, led by New Hope: its half year profit more than doubled…”

12:32 – 12:36
Mik Aidt: Who will find The Climate Grail before this all runs amok?

12:40 – 12:48
Movie clip: “I have seen the grail. I have seen it. I have seen it!” “But there is one small problem.”

12:49 – 13:40
Mik Aidt: In this series of podcasts that I call The Climate Revolution, I’ll be talking with some of those people who are on the lookout for – or who even think that they may have found – The Climate Grail. Where’s the big changemaker going to come from? Is it going to be a technical solution or will it have to be a social one? Either way, it will be people who were behind it. It’s people who are developing kelp forests in Tasmania, it’s people who have found a way to make electricity out of thin air in Melbourne. It’s people who are building airplanes now that can fly on hydrogen. Its people, its neighbours who are meeting at kitchen tables, and organising their community, and creating food-grower networks, and so on. Lots of inspirational stuff is happening all over the world, and there’s a lot of leadership, people stepping up and becoming climate leaders, you could say.

13:40 – 14:38
But of course, there’s also the money side of things, the billions of dollars that keep flowing into the pockets of shareholders of fossil fuel companies, which is then used for… yeah, for what? What are fossil fuel shareholders using their money for? Is it just to fly to the Bahamas and have an adventure? Or are they buying stuff? What are they doing with the money? Considering the consequences of selling fossil fuels, what that means, what we can see on the news, the impact that it has on our planet: the flooding, the fires, the hurricanes, people getting killed, animals, entire ecosystems being wiped out -and all of that so that you, shareholders of fossil fuel companies, can enjoy the benefits of your dollars for just a few more years until it all collapses? We’re clearly running out of time, and I think a lot of people have this feeling: the clock is ticking. We need to find that ‘Climate Grail’ very quickly now,

14:38 – 14:44
Movie clip: “This could cause a riot.” “Good. Maybe we need one. The only way we’re gonna make it through this is if we trust each other.”

14:44 – 14:54
Mik Aidt: So welcome. Let’s meet some of these explorers of the climate grail. Let’s meet the thinkers, the makers, the hunters of the Climate Grail.

14:55 – 14:59
Movie clip: “I have seen the Grail. I have seen it! I have seen it!”

14:59 – 15:24
Mik Aidt: The first Climate Grail we’re going to explore and have a deeper understanding of today has an interesting name. It’s called: ‘The Code’. The code is a new idea. It’s something that no one else is doing, certainly not in the climate movement, but something maybe that all environmental and climate organisations and other groups that are concerned about climate change should be looking into and getting together around.

15:25 – 16:24
Robert Hinkley: My idea was: The duty of directors should be changed. And the reason has to do a little bit with where corporations come from. Most people don’t recognise this, but a corporation wouldn’t exist if government didn’t give it the right to exist in the corporate law. Corporations don’t exist in nature naturally. They are allowed to exist by a law that says: ‘If you investors want a corporation from which you will get things like limited liability, you can form a corporation by making a filing with the [government] and paying a small fee, and then you can operate as a corporation, and operating as a corporation limits the ability of others to sue you to the ability to [just] sue the corporation.

16:25 – 16:57
So it’s a risk management technique created by government, and this law that allows corporations to be created, it also dictates for what purpose they can be run, and who manages them. And that’s directors. And it tells directors what their job is. And their job is simply to protect the interest of the corporation. Essentially make money and I would say: preserve and enhance shareholder value.

16:57 – 17:25
Well, this gets in the way when all of a sudden it’s discovered that a corporation is causing severe damage to the public interest and in this case: the environment. But there are other examples. I mean, what people don’t really understand, they tend to think directors and companies are greedy. That’s not the case. Directors tend to be good citizens themselves. Some of them are pillars of our communities.

17:26 – 17:55
They don’t set out to engage in a business to harm the public interest, the environment. They get a business going, it becomes wildly successful. Before they know it, they have hundreds of millions, billions of dollars invested, and then it becomes apparent that that business is causing a real problem for the public, for the environment.

17:55 – 19:22
And the question then is: what should the corporate directors do about it? The law, as it exists, says: they should defend that investment and continue to operate as they are now. Well, if not continue to operate as now, make sure they don’t have to write off that investment, and that they generally translate into: continuing business as usual, or until government can pass a law making them stop. And so as a result, we have NGOs – non-governmental organisations – all over the world trying to get corporations to stop abusing the public interest. They have generally a local issue that they are trying to get muster enough political will to solve locally. So a company that’s emitting a toxic chemical, they try to get the amount of that toxic chemical that’s going to be emitted reduced to let’s say 10 parts per billion – and if they’re successful, they do get it to be reduced to 10 parts per billion. But in only one jurisdiction. And if the corporation can operate profitably, while getting it down to 10 parts per billion, it’ll stay there. If it can’t, it might move to the next jurisdiction, and set up a plant there, where it can emit as much as it wants because the law in that jurisdiction wasn’t changed.

19:22 – 20:16
I call this kind of business regulation ‘Where and how much’. It says, ‘Please do a little bit less here’ and it’s effective only here, and to that extent. What it does is, it tends to push corporate abuse of the public interest around, but it doesn’t limit it globally. And so, you’re fighting the corporation. But the real thing you’re fighting, you’re fighting the symptoms. Let me say it that way. You’re fighting the symptoms of the disease. The disease comes from the duty of directors to defend their investment in the corporate assets. And that doesn’t really make sense in cases where those assets are causing severe harm to the public interest.

20:16 – 20:38
Remember: Corporations are formed by governments. Governments allow them to be formed. They shouldn’t create a situation where they are providing for the creation of large institutions – which may end up causing severe harm to the public interest that they can’t control later.

20:39 – 21:15
So the idea behind The Code – or the Code for Corporate Citizenship – is that we should change the duty of directors, not just in Australia, but in New Zealand, and in every one of the 50 U.S. states and all the 10 Canadian provinces, all the 27 members of the European Union, everywhere! And that sounds like a big task but it’s a much smaller task than each one of those states figuring out how much greenhouse gas emissions they’re willing to live with.

21:16 – 21:53
And the way I say the law should be changed is to add 11 words. And those 11 words are: ‘But not at the expense of severe damage to the environment.’ That’s a big change, because that strikes at the cause of the disease, not just the symptoms. And it’s something that I think most people agree with. Why should government be setting up large institutions that have the right – unless government can make them stop – to cause severe damage to the environment, or some other element of the public interest?

21:54 – 22:08
So that’s where the idea comes from. It is an obvious solution if you’re a corporate lawyer, but the problem is most corporate lawyers represent big corporations, as I did, and they’re not talking about it.

22:09 – 22:17
Mik Aidt: And let’s hear a little bit about your background, so people can understand where you’re coming from, and sort-of, what brought you to this thinking?

22:18 – 23:15
Robert Hinkley: I am the product of a Jesuit education. I went to Fordham University in New York City and Fordham Law School. And when I got out, I became a young associate with a very up-and-coming New York law firm, which was the preeminent firm in mergers and acquisitions. It also developed a practice that I participated in, mostly, helping companies raise money on Wall Street, advising them and their investment bankers on the U.S. Securities laws. And the interesting thing about that job was that I got to work with a wide range of companies in a wide range of industries, and I got to see how they made money. Being a finance major, and an accountant before I went to law school, I always found business very interesting.

23:17 – 24:57
To make a long story short, I’m a partner in the firm now, and I’m running the Sydney office, and a friend of mine who’s the Chair of Social Policy at Sydney University, he says to me at lunch, he says: ‘Bob, I’m trying to get Australia’s CEOs to take an interest in human rights in the workplace. Especially in their Asian subsidiaries,’ he says, ‘And I go talk to them, and it’s not like they’re opposed to the idea, it’s like it just doesn’t matter to them.’ And I said: ‘Well, Stuart, it’s not on their radar, it’s not part of their job description. Their job is to act in the best interest of their company to make money, and so long as that company is obeying the law, then they think they’re doing their job. And they have a general counsel, a legal department, within the company that makes sure they stay within the law. So human rights, unless there’s a law against it, they’re not that concerned – unless there’s a law requiring stronger human rights in the workplace – they’re not that interested.’ He said: ‘Fine, write me a chapter for a book I’m editing,’ and I said: ‘All right,’ and I went back and I started thinking about it, and the more I thought about it, I thought: Well, I really ought to have a solution. And my background as an Mergers and Acquisitions Attorney made me familiar with something called stakeholder statutes.

24:57 – 26:09
In America, the vast majority of States now have these clauses, so-called stakeholder statutes, and they’re actually a modification to the rule that directors always have to act in the best interests of shareholders. And what they say is: “…But SOMETIMES you can consider the interest of employees, the environment, the community in which you operate.” Now, what you have to understand is that ‘sometimes’ is very limited. It’s limited to the situation – or at least this is the way gets interpreted – it’s limited to the situation where a bunch of bad guys want to take over your company and they are offering $50 a share, but your friends are offering $47 dollars a share – and they’ll keep you in your jobs. And so what you do is, you think about things like the community and the environment, other things that will justify you agreeing to $47 dollars a share instead of $50 a share. And so, I had this in the back of my mind, I said: You know, that works in the situation where a hostile takeover is in play. Why doesn’t it work all the time?

26:09 – 26:26
And the answer is because there’s a difference between a law allowing directors to consider other stakeholders, and a law that tells them they must protect the interests of other stakeholders from severe damage.

26:28 – 26:59
What I’m suggesting is much more powerful: Your duty to act in the best interests of the corporation doesn’t give you a license to do so in a way that causes severe damage to the public interest. And I came up with five elements of the public interest: [the environment], human rights, the public health and safety, the dignity of employees, which I think is important, and the well-being of the community in which the company operates.

26:59 – 27:20
But when I really started out, I said: I need eight words: “but not at the expense of the environment”. That was 20 years ago. My thinking has evolved quite a bit since then, and I’ve come up with the formulation: “But not at the expense of severe damage to the environment.” So that’s how we got to where we are. That’s how The Code came about.

27:21 – 27:29
Mik Aidt: It sounds almost too simple, Bob. Why hasn’t it happened? And why hasn’t an army of lawyers pushed for this?

27:30 – 28:02
Robert Hinkley: Well, corporate lawyers make their money serving big corporations. And not many of them are saying – especially to the oil and gas industry: ‘Well, you really shouldn’t be in this business.’ Or: ‘You got to find a way to run it cleaner’. The reason it hasn’t happened, I think… There’s something Winston Churchill once said about Americans, but I’ll say it about democracies, and that is:

28:01 – 28:07
“In democracies, the people always do the right thing – after they’ve tried everything else.”

28:08 – 28:25
When it comes to improving corporate behavior, I think there’s a lot of wisdom in Churchill’s words. Since I originally introduced The Code more than 20 years ago, we’ve been trying everything else, but there’s a reason for that:

28:27 – 28:47
Passing a law like The Code is going to require strong public support. And when I first suggested it, support for the idea that companies should be required to behave more responsibly, more civilly, people were highly skeptical of any corporate regulation that might inhibit growth.

28:48 – 30:08
Support for the code needed to grow before it could become law. I think it was an idea that was probably 20 years ahead of its time. But since then, largely by trying everything else – as Churchill suggested – support for the idea that corporations should behave more civilly has grown tremendously. And you see this in the growth in the corporate social responsibility movement, which back then was a pretty small movement. And today, it’s taught by every business school in the world  [as something that’s now called ESG] alongside other business disciplines like Finance, Accounting, Marketing and Management. Back then, socially responsible investing was offered by only a few mutual funds. The total amount under management – socially responsible management – at that time was probably less than 10 billion dollars. Today, the finance industry boasts that over 30 trillion dollars is now under socially responsible management. That’s some growth. And you also see growth for the acceptance of the idea that companies ought to behave more socially responsibly.

30:08 – 30:54
And the fact that there are now 10,000 For Benefit corporations out there, sometimes referred to as B Corporations. These companies are formed under special laws that have been passed in the last 20 years, and they operate not just for the benefit of shareholders, but also for the benefit of some other specified social interest. These things all try to get companies to behave better  [voluntarily] – and they do. In other words, they’re not under compunction of any law to do less damage to the public interests. They’re doing it on their own. And these ideas have all been effective, but [only] as far as they go,

30:55 – 31:21
And the point where they’re not effective, however, is at the intersection of where companies and industries have huge amounts invested in their business, and stopping their destructive behavior will require those investments to be written off. The directors of these companies won’t do this voluntarily. Existing law not only discourages them from stopping – it justifies them not doing it.

31:23 – 31:43
Now, ESG – socially responsible investing and B Corporations are all, as I said: They’ve been effective up to a point, and they’re going to continue to grow, and that’s a good thing. But they’ll never stop greenhouse gas emissions or other abuses of the public interest where the cost of stopping is high.

31:45 – 31:59
Now, when companies won’t stop destroying the public interest voluntarily, we are now more aware that this can be a big problem. And obviously greenhouse gases, climate change and global warming are the perfect example.

32:00 – 32:47
I think we must ask ourselves: Why should companies behave civilly only when they want to? – and not when the damage they cause is the most destructive, most serious? Why shouldn’t they be socially responsible all the time? Why shouldn’t directors be reminded that every time they make a big decision, they should be careful that that decision won’t result in the company causing severe harm to the environment or some other element of the public interest. And that’s the objective of The Code. You’re right, it is so simple. It’s the right thing to do. And I think the necessary public support has now grown to the point where The Code can become enacted in the law.

32:50 – 32:57
Mik Aidt: How would we get, for instance, the Australian government to implement this Code?

32:57 – 33:38
Robert Hinkley: It’s a very simple thing. The duty of directors in the Australian Companies Act is in Section 181. It says: “The duty of directors is to act in the best interest of the corporation” – and we add the words, “but not at the expense of severe damage to the environment.” We make it clear in the legislative history that the first thing we’re talking about is the emission of significant quantities of greenhouse gases, and we expect that where it does occur, where companies are doing it now in significant quantities, we expect that to stop within say five or ten years. It’s that simple.

33:39 – 34:08
And the good thing is the technology is there. There is solar, and wind power, and battery storage have all got to the point now where the emission of greenhouse gases in significant quantities is not necessary. What it takes now is building out the system a little more to accommodate these new technologies. But that’s a project we should embark upon. And not only should we embark upon it, we should welcome it. Because we’re going to finally solve this problem.

34:08 – 34:20
And if it’s solved in Australia, people are going to see it solved in America. They’re going to see it solved in Europe. It’s a simple answer. It’s a simple solution that works everywhere.

34:22 – 34:41
It’s a project that the people of the world can embark upon together. We all agree that it’s a good thing. It’s time that the institutions that are causing it, are told to stop. We have a solution for it, and it’s being put in place.

34:42 – 35:11
That is an interesting thing because, you know, often when you talk about business regulation, the company being regulated, or the industry being regulated, talks about how bad it will be for the economy. Well, The Code is going to require significant investment in new technology. Not technology that is pie in the sky. It’s going to spur capitalism as opposed to harm it,

35:11 – 35:41
because The Code doesn’t harm the profit motive. It leaves the profit motive in place. It just says: companies have to do a better job of how they make money. They can’t make money and cause severe harm at the same time. It’s better in some ways than… Remember, I told you about the stakeholder statutes, which says, directors should consider these other constituencies – employees, the environment, the community, et cetera.

35:44 – 36:13
You can’t have a corporate law that says directors have to serve all these constituencies. Directors need one master, and the master is the company or its shareholders – depending on how you define it. But you can serve one master and at the same time agree: ‘But I’m not going to do it by harming somebody else.’ It’s quite elegant in some ways. It’s a simple solution, but effective.

36:16.5 – 36:47
Mik Aidt: The Canadian rapper Baba Brinkman expressed a quite similar message in his rap lyrics in 2016:

Baba Brinkman: “…because we’ve been in this place before. It’s kind of like segregation in the South before MLK kicked in the door. It’s kind of like apartheid in South Africa before Nelson Mandela walked free. It’s kind of like gay people trying to get married in the States before 2015. Those laws all needed changing, and so do the laws we have now. Only this time the laws are passing oppression down to your grandchild.

36:48 – 37:09
Now it’s someone in a coastal city in a developing nation being treated unequally because one meter of sea level rise displaces 100 million people. But the cultural climate is changing too. We can feel that as social animals, whether or not your neighbours have them is…”

37:01 – 37:11
Mik Aidt: “Unjust laws just got to be changed. It’s not enough to ask people nicely to embrace decarbonisation.”

37:11 – 37:58
So here’s this suggestion now from a former corporate lawyer, outlining how it could be – how it should be done – this changing-the-law part that Baba Brinkman was talking about. And as Robert Hinkley describes it, really, it doesn’t sound that difficult or complicated at all. It’s just these few words, 11 words altogether, that need to be added to the corporate law. Instead of just talking about directors serving the company’s best interest, we need to add this phrase: “But not at the expense of severe harm to the environment.” And that would make such a difference. So what would it take to convince our lawmakers in Canberra that they need to do this?

37:59 – 39:28
It would probably take a whole lot of pressure from the community. And creating pressure from the community, that’s something the climate movement in Australia has been… well, you could say: working on for years and years, but still hasn’t really been very successful, because it’s been very fragmented, you could say, or disorganised, or… There have been a lot of different opinions, and nobody has really been able to agree on one single thing that we all campaign on. Here in The Sustainable Hour, we talked with Luke Taylor back in February about this problem that the climate movement in Australia – and actually in the world – is not speaking with one voice or having just one call – something that we all agree on – that this needs to be done. Could Robert Hinkley’s code here, the Code for Corporate Citizenship, be something that the climate movement would agree on and advocate for? Maybe the first thing should be to find some 15 people who would sign an open letter – or 50 people, like we saw recently with the Australia Institute that published an open letter to say that ‘This Safeguard Mechanism, dear Government, that you’re thinking about, is not good enough!’ What about getting together around an open letter and a petition?

39:28 – 39:52
Or maybe even a letition, which is this initiative coming from the ADAC organisation, which is about writing and posting old-fashioned paper letters with a stamp and sending it to the MPs, the representatives of your community. There’s a lot of different ways that this could be done, but the main thing would be to show politicians, the lawmakers, that this is something, we, the people, want you to do.

39:53 – 40:16
Robert Hinkley: So any environmental organisation or other person who wants to do something to protect the environment in a meaningful way, should bring it to the attention of the people and their state or national parliaments, that draft, the corporate law, and make the change.

40:16 – 41:21
I want to say one thing about this – which is that corporations did not always have all this leeway. The truth is when they were first invented, the government imposed limitations on their operations – they limited the time that they could operate under a corporate charter without seeking renewal. And some governments even said that if they abuse the public interest, they could be closed down. There was a time in the late 19th century in America, where a race to the bottom occurred. The Industrial Revolution was taking hold, and every state wanted to have its own… to attract big corporations within its boundaries. And so they amended their corporate law to take out these limitations. Some of them left them in, but then they decided they weren’t going to enforce them. So it’s really… It sounds like a new idea, but it’s really a very old idea.

41:22 – 41:55
It’s a way to get at corporate abuse of the public interest from the inside, as opposed to the outside, by getting the directors, the people that are responsible for running the company, back again on the side of the public. I mean, these people are, as I’ve said – they tend to be good citizens themselves, but when they get to the job of a director, they have to play a role. And right now, the law says their role is only to look out for the company and its assets. That has to be changed.

41:57 – 42:17
Mik Aidt: But wouldn’t there be a way to go around that? – by simply claiming: ‘Well, my emissions aren’t that much of a problem. I’m just one little player.

42:17 – 42:29
Robert Hinkley: You’re putting it in the context of going to court – what happens then. I don’t think The Code will ever go to court, because it includes the word – and it’s there for a purpose – it says: “But not at the expense of severe damage to the environment.” The question then becomes: What is severe damage?

42:31 – 43:01
At this point, after we’ve had 27 COPs, after the United Nations has come out on this problem, where all the Nobel scientists say the same thing. There is no doubt that the emission of significant quantities of greenhouse gases through, among other things, electric power generators, motor vehicles, is contributing to the destruction of the environment. Everyone understands this.

43:02 – 43:50
And if the governments of the world pass The Code, they will be doing it in response to that particular problem. There’s no doubt about it. And the interesting thing about it – you said, what if you say: ‘I’m only doing one or two percent of it’ – that’s a huge number. Those are big companies. There’s probably not 300 companies in the world that fit into this category, because, you know, they’re generating individually, significant amount of greenhouse gases, and collectively the amount that’s causing so much damage. And by the world coming together and saying, the time has come for this to stop – I don’t think they’ll ever take it to court.

43:50 – 44:36
It’s an interesting thing because the law now says, ‘Act in the best interest of the corporation.’ Well, this might be a surprise to some people, but directors make mistakes all the time. They do things that concur corporate losses. And the the courts have said, ‘Look, we’re not going to entertain every crummy little lawsuit when a company loses money and its shareholders are just not happy.’ There’s something called the Business Judgment Rule – and we’re not going to substitute our judgment as judges, but the judgment of the people who made a decision in good faith, that turned out to be the wrong decision. The Code for Corporate Citizenship will be treated the same way.

44:36 – 45:16
Even when there’s the Business Judgment Rule, judges will hear a suit if they say the director stole money or he has stolen that corporate opportunity, or he misled shareholders. That’s the equivalent in The Code-terms of ‘severe damage’. That’s way over the line. We will hear those suits. And in this case, what’s going to happen is – it’s a very interesting thing actually, because what’s going to happen is: All of a sudden, there’s a new rule in town for all corporate directors all over the world – or let’s say, all over Australia – from the guy who owns the pizza shop to BHP.

45:17 – 46:06
Now, they are going to see that the companies that were generating huge amounts of greenhouse gases, they are told they have to stop it. No corporation, no director wants to get to that point. So what they’re going to do is they’re going to tell their managers and their employees: ‘Be on the lookout for this, monitor this! We want to make sure we’re on top of it, so it doesn’t become a problem.’ Any business that has as a component of its operation the emission of greenhouse gases, is going to start thinking about: how do they limit those? They’re going to become more cautious with the public interest. Essentially, what we’re going to do – what The Code will do – is make better corporate citizen out of every company. Not just the ones that are being told they have to stop.

46:12 – 46:28
Sir Richard Attenborough: “There just could be a change in moral attitude from people worldwide, politicians worldwide, to see that self-interest is for the past, common interest is for the future.”

46:40 – 46:59
Robert Hinkley: Greenhouse gas emissions… I mean, it always used to be: ‘Well, we can’t hurt the auto industry because the auto industry is important.’ It’s not important to Australia anymore. We import our autos, right? That becomes sort of a simple way to simple thing to fix by import restrictions.

47:00 – 48:10
With regard to electric power generators, there’s technologies out there that they can switch to and still make money. And this will force them to speed that up. Now, how about the coal companies that are supplying the electric generators? They’re sort of like the people who were supplying the materials to make buggy whips. There’s no need for buggy whips anymore! That’s going to affect their business as well. All for the good. It’s time to move on. And right now, what these industries are trying to do is to slow this process down – whether they would say 2035 or 2050. Maybe we should be saying 2027, or 2028 or 2030? This decision should be driven not by the oil and gas industry, but by the desire to save the planet. Full stop. The sooner the better. This has dragged on long enough.

48:11 – 48:40
Mik Aidt: And if you want my check on that, I would say we probably still need to keep working on how we basically take over power in Parliament and work on, you know, from Council level to state level and then, to Federal level on getting new candidates in there who will put climate first. And it may well be that we will have to wait until we have enough #PutClimateFirst candidates elected before we will see something like this Code for Corporate Citizenships actually turned into law.

48:40 – 48:59
Antonio Guterres: “We are rapidly reaching the point of no return for the planet.”

Movie clip: “I have a plan.” “You’ve got a plan?” “Yes.” “First of all you copy me from when I said I had a plan.” “I’m not, people say that all the time. It’s not that unique of a thing to say.” “Secondly I don’t even believe you.”
“I have a plan. I have part of a plan.”

49:06 – 49:35
Robert Hinkley: There’s nothing wrong with companies making money. It’s about how they make money. And I think what The Code will say is: that’s important – that we’re giving you a license to generate profit, to operate, but we don’t want you to use that license to cause global warming or some other serious harm to the public interest.

49:35 – 50:00
Never forget that you’re getting your license from the public – from government – from our government, and we expect you to be good corporate citizens. You can make money as a good corporate citizen. And it’s time to stop the situation where you use the economy or corporate profit as an excuse or a justification to continue harming it.

50:00 – 51:17
Mik Aidt: We learned from the scientists that CFC gases harm the ozone layer, and when this became common knowledge, then our politicians made laws that we can’t put these CFC gases in our fridges, and so on. And the industry obeyed.

Robert Hinkley: Yes.

50:17 – 50:39
Mik Aidt: Similarly with tobacco, in a way – that there was more and more taxes put on tobacco in order to get people off, or at least to have less people smoking tobacco, because it’s now very expensive and also they are being forced to put some pretty ugly pictures right there on the packages showing you that if you smoke it will cause harm.

50:39 – 51:04
Robert Hinkley: When it comes to tobacco, I agree with what you say, but I think we haven’t gone far enough, to tell you the truth. I’m not against people smoking but I don’t think that a big company licensed by government, participating in an industry that kills over 8 million people a year, should be allowed to mass manufacture and distribute this product.

51:06 – 52:10
Anybody who wants to smoke ought to be able to roll their own, but I don’t think government should be passing out licenses to mass manufacture and distribute a product that we know causes a million deaths a year. That’s how I come out on that one.

51:24 – 51:32
Mik Aidt: However, they are taking some measures there that limit the use – there is certainly a lot less smokers today than there were 20 years ago.

51:24 – 52:10
Robert Hinkley: Well, there’s a lot less smokers in the developed world, but in other places, there’s a lot more smokers. But you’re right: governments in the developed world have got tobacco’s number. Okay? So they increase the taxes, they do lots of things to make it less desirable to smoke. But again, they’re directing these things against the people and the tobacco company’s customers as opposed to the tobacco companies, to tell you the truth. The Code would address the tobacco companies. It would say: ‘You’re not to do this, to engage in this behaviour, until you figure out a way to make it work that doesn’t kill people.’ Is that really too much to ask?

52:11 – 52:26
Mik Aidt: But why it gets sensitive when it comes to carbon emissions – and, for instance, a carbon tax – is, as we have seen here in Australia, that people actually get upset when the prices on petrol, and so on, go up.

52:26 – 53:13
Well, it’s not just that. We all use electricity – all the time. Right now, you and I are using electricity. Not everybody is afraid the lights will go out. We now know they won’t go out. So the time has come to address this problem. It’s not like we’re saying it should stop and we’re jumping off a cliff and hoping we develop the technology. The technology is developed. It just has to be implemented. It was a mistake in the first place to give electric power generators, motor vehicle industry, the right to make money at the expense of the environment in such a way as it causes climate change.

53:14 – 53:41
That never should have happened. If it hadn’t happened, you know, we probably would have had Al Gore’s film ‘An Inconvenient Truth’, and people would have said: ‘Yep! That’s got to stop!’ But we are not there yet. Or, it’s not that we’re not there – we haven’t got to the point where people are saying “It’s got to stop.”

53:41 – 54:41
Mostly because the oil and gas industries told us that we can’t stop. It has to keep going. I mean, I can go to a coffee shop downtown here in Berrigan, and I’ll have people tell me ‘Windfarms don’t work when the wind doesn’t blow’ and ‘Solar doesn’t work when the sun doesn’t shine’, and ‘There’s no such thing as battery storage.’ And you know, they get these ideas because they’re promulgated by the industries that are making a living off destroying the environment. And it’s… Slowly slowly people are coming around. And well, the other thing is – and this is a powerful thing about The Code: Everybody knows that there’s environmental organisations out there. Everybody knows they’ve been on about this for 25 years, but they’ve really haven’t been able to accomplish anything on it. So they think there’s no solution.

54:41 – 55:03
And the solution is to get the people inside of corporations that are in charge of running it back on the side of the public interests – and as an institution that owes its life to government and the public, directors should have at least some responsibility to keep their company from causing severe harm.

55:08 – 56:04
Movie clip – 1960 solar energy car: “Although most of us have a soft spot in our hearts for vintage and veteran cars, it can’t be denied that there’s a certain [smackness] in our attitude when we compare some of these noisy and rather messy old contraptions with smooth running cars of today. But one old car that certainly defies the general description is the 1912 Baker – because this model was an electric Braun and noiseless. However, we are not so much concerned with the merits of the veteran car as with, on this occasion, its source of power: the sun. For this is the world’s first solar car powered by a 10,000-cell panel on the roof, brought over from the United States by scientist and pioneer in this sphere, dr. Charles Escoffery, to illustrate the potential of solar energy. The silicon cells convert heat into electric power which is then stored in the car’s batteries, and with the present roof panel, it takes between eight and ten hours of sunlight to provide enough power for an hour of driving at 20 miles an hour.”

56:04 – 56:23
Mik Aidt: So there you have it. This was in 1912. And one wonders what happened to the electric solar-powered car? And what would have happened if we had gone out that path already then?

56:23 – 56:37
Robert Hinkley: Yeah, what would have happened is we wouldn’t have the global warming problem we have today. And people will say, “Well…” and they’re saying it a lot less these days, but they used to say, “Well, a car like a Tesla costs a lot more. Who will buy that?”

56:39 – 57:08
And what they don’t understand is that the cars driven by internal combustion engines have been subject to research and development over decades by a number of companies. Probably three dozen companies around the world. They all steal technology from each other, and each year, they collectively invest billions in making their cars a little bit cheaper or a little bit more efficient.

57:08 – 58:02
If that effort was placed on developing electric cars or some other form of fuel supply, an appropriate reduction in cost per unit would result as well. The thing about capitalism is that economies of scale kick in. And I said this in my book: I can go to breakfast and I’ll get a bacon and egg and cheese sandwich for $12 Australian dollars. And when you think of: Chickens had to be raised, pigs had to be raised and slaughtered, wheat had to be grown. If you got cheese on, cows had to be milked, and the milk processed. Then it all had to be put on trucks and shipped to the local restaurant, and then cooked! How does that happen for $12? The answer is capitalism.

58:03 – 58:20
What we have to focus on now is technology that doesn’t harm the environment or some other element of the public interest, and it can be done. It’s just a matter of devoting the resources to it – and our ingenuity to it.

58:23 – 59:39
Mik Aidt: Does Robert Hinkley’s idea have some merit? Should we do something about this? Should we get together and publish an Open Letter? Should we try and get the support for this Code? Maybe much in the similar way that we in 2016 started to talk about that ‘We are in a climate emergency, folks. And we need to declare that we are in a climate emergency’, and we started a petition for that, and that went global, and now we have more than 2,000 councils around the world and more than 40 governments that have declared a climate emergency. Imagine if the next step would be to say, ‘We need The Code. Governments need to implement The Code’ – and see where that will take us. For a start, it would be great to hear from you if you agree or if you have some ideas – and if you want to support Robert Hinkley’s idea about the Code for Corporate Citizenship. This is the first in a series of podcasts which will highlight people out there who have ideas and solutions that really could make a difference.

59:40 – 59:49
If you want to support this, just send an email to theclimategrail@climatesafety.info.

59:50 – 59:59
Movie clip: “I have seen the Grail. I have seen it – I have seen it”
Audio clip: “All revolutions seem impossible until they are inevitable.”

Podcast content and sources – in order of appearance

00:03 Antonio Guterres, United Nations Secretary-General: “We are rapidly reaching the point of no return for the planet”
00:25 Movie clip: Marvel, Thor: Kaorg speaks to Thor about revolution
01:17 9News reporting on Antonio Guterres’ call for governments to declare a climate emergency
01:50 Robert Hinkley speaks briefly about The Code (Continues at 2:26)
02:22 BBC World Service during Second World War: “This is London calling”
03:58 ABC News on 20 March 2023: “A million fish dead”
04:01 ABC News: “Harrowing tales of survival emerge in Mississippi following tornado” (also at 06:26)
04:11 ABC News report from flooding in Burketown 12 March 2023 (also at 06:31)
06:35 ABC News: Bushfire victim statement: “I have lost everything”
06:38 ABC News: Report from extreme weather event in New Zealand: “Multibillion-dollar price tag”
06:48 United Nations Secretary-General Antonio Guterres interview in ABC: “We will be doomed”
07:05 ABC News: Report from extreme weather event in New Zealand: “New Zealand declares a state of emergency”
07:09 Sir Richard Attenborough: “We will face the collapse of everything that gives us our security”
07:15 United Nations Secretary-General Ban ki-Moon in 2011: “We need a revolution. Revolutionary thinking. Revolutionary action.”
08:09 Movie clip: Marvel, The Avengers: “How bad is it? That’s the problem, sir: we don’t know”
08:24 ABC Lab: “We are going the wrong way”
08:26 7News Sydney: New South Wales Rural Fire Service firefighter: “You are killing us. You are killing Australia”
09:52 Movie clip: Marvel, The Avengers: “And the humans, what can they do but burn?”
10:15 Movie clip: Monthy Python and the Holy Grail: “What is your quest? I seek the grail!”
12:22 ABC Business Report on 21 March 2023: “The best performers today were coal miners lead by New Hope – its half year profit more than doubled”
12:36 Movie clip: Monthy Python and the Holy Grail: “I have seen the grail! I have seen it! (But there is one small problem)” (also at 59:50)
14:38 Movie clip: The 100, s1 e5 at 26:20: “This will cause a riot! Good. Maybe we need one.”
14:41 Movie clip: The 100, s2 e8 at 8:20: Abby: “The only way we are going to make it through this is if we trust each other”
15:24 Interview with Robert Hinkley begins – about The Code
46:11 David Attenborough, excerpt from BBC’s ‘Greta Thunberg: A Year to Change the World’: “There just could be a change in moral attitude from people world-wide, politicians world-wide, to see that self-interest is for the past, common interest is for the future.”
48:44 Antonio Guterres, United Nations Secretary-General: “We are rapidly reaching a point of no return for the planet”
40:47 Movie clip: Marvel, Guardians Of The Universe: “I have a plan”
55:08 Movie clip: 1960 solar energy car: “The 1912 Baker was an electric Braun and noiseless. This is the world’s first solar car powered by a 10,000-cell panel on the roof”
59:54 “All revolutions seem impossible until they are inevitable.”

Music
00:02 Alex Aidt: Icecream (also at 00:43, 01:18, 38:34, 58:13)
00:52 Wayne Jones: A Quiet Thought
01:25 Unicorn Heads: Wolf Moon
01:54 Coast: Anno Domini Beats
01:47 Monthy Python and the Holy Grail – fanfare (also at 49:02 and 59:50)
02:22 Twin Musicom: A Dream Within a Dream (also at 06:24, 11:49, 36:13)
02:36 Serge Pavkin: Dawn
04:38 Wayne Jones: Connection (also at 07:30, 14:46, 47:33)
09:10 Density & Time: Ether-Real (also at 58:54)
10:24 Wayne Jones: Resolution
36:25 Baba Brinkman: Makin’ Waves
46:08 Unicorn Heads: Dreaming in 432Hz
A big thank you to the musicians for allowing us to use this music in the podcast.

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