structure, basis, powers

This page looks at auDA's constitution, Board, membership structure and administration and challenges.

It covers -

• auDA's basis - the organisation's nature and studies
• dot-au legislation - the Telecommunications Act 1997 and other law
• the ICANN Agreement - the landmark 'sponsorship agreement between ICANN and auDA
• auDA's powers and constitution
• governance - auDA's board and membership structure
• administration and resourcing

     basis

auDA, much like ICANN, is a not-for-profit private sector entity that is underpinned by national legislation, exercises quasi-governmental powers in developing and administering policy and faces questions about its legitimacy.

Ultimately its authority rests on support, tacit or otherwise, from the federal government and the extent to which it has secured the commitment of stakeholders that range from corporate intellectual property owners to groups that view the domain name system as an engine for winding back globalisation, the New World Order or other bugaboos.

Like ICANN it operates at the intersection of international and national law, business practice and technical standards. Many people misunderstand the interaction of those forces (one reason why we've provided guides on this site) or merely prefer to ignore inconvenient facts.

As Rebecca Nesson noted in relation to ICANN, "the level of engagement with the issues at hand does not deepen over time", with public discussion being characterised by "identical arguments regarding many of the same issues". More concisely, one observer of online debate about auDA has flagged that

liberal use of the F-word and ad hominem attacks - shout loudly, shout often - do not disguise the poverty of many arguments.

So far there is no major academic study of auDA, although several Masters projects are underway. For a discussion of nongovernment organisations see the separate ICANN profile, Regulating The Global Information Society (London: Routledge 2000) edited by Christopher Marsden, or the broader Constructing World Culture: International NonGovernmental Organizations Since 1875 (Stanford: Stanford Uni Press 1999) edited by John Boli and Autonomous Policy-Making By International Organisations (London: Routledge 1999) edited by Bob Reinalda. For a perspective on legitimacy in DNS administration see Jonathan Weinberg's feisty ICANN & the Problem of Legitimacy paper.

     legislation

auDA operates under Australian company law (its corporate constitution is discussed below) as a nonprofit industry body. As part of the national 'co-regulatory' arrangements for telecommunication services its activities are subject to trade practices and telecommunications law.

In particular, the Telecommunications Legislation Amendment Act 2000 modified the Telecommunications Act 1997 (here) to provide a "safety net" with government intervention if necessary.

Its constitution provides that if auDA is dissolved

the right to administer the .au ccTLD must either be transferred on to another entity nominated or approved by the Commonwealth of Australia or, in the absence of such approval, be transferred to the Commonwealth.

auDA is not a 'declared' body under the federal Trade Practices Act 1974 (TPA). That legislation does not provide explicit recognition of its industry codes or indeed refer to auDA and domain names. Argument by Capital Networks in 2004 that relations between auDA and registrars were subject to the Franchise Code under the TPA failed to convince the Federal Court.

Although auDA is not government owned or controlled it was established under official auspices, was initially serviced by the National Office for the Information Economy (NOIE), and has been recurrently endorsed by the federal communications minister, having a closer relationship with government than other industry bodies.

Its activity since establishment has been closely watched by the federal government and some of the state governments. Several of the auDA working parties featured a NOIE representative and the NSW state government was particularly forceful in advocating the ill-conceived 'geographic' 2LD. In 2004 the federal government's Advisory Council on Intellectual Property (ACIP) released a discussion paper on a Review of the Relationship Between Trade Marks & Business Names, Company Names & Domain Names (PDF).

     the ICANN Agreement

auDA is independent of ICANN but formally endorsed by it through the 2001 Sponsorship Agreement (PDF) that formalised transfer of delegation for the .au country code Top Level Domain (ccTLD).

The Agreement, signed on 25 October 2001, sets out the relationship between auDA as the .au delegate and ICANN as the international domain name governing body.

     powers and constitution

auDA's constitution indicates that

taking the view that the Internet Domain Name System is a public asset, and that the .au ccTLD is under the sovereign control of the Commonwealth of Australia, auDA will administer the .au ccTLD for the benefit of the Australian community.

It is to ensure the continued operational stability of the domain name system (DNS) in Australia and establish mechanisms to ensure the DNS is responsive and accountable to the "supply and demand sides of the Australian Internet Community" ("those users and suppliers of services via the Internet who are based in Australia"), including

• promotion of competition and fair trading in the provision of domain name services
• promotion of consumer protection
• adoption of open, transparent and inclusive procedures

Its responsibility as "administrator of and self regulatory policy body" for the dot-au ccTLD (including 2LDs) encompasses action to:

• "maintain and promote the operational stability and utility of the .au ccTLD"
• ensure cost effective administration of the dot-au space
• develop and establish a policy framework that encompasses rules governing the operation of 2LD registries, creation of second level domains, accreditation of registrars and registry administrators, registration of names within 2LDs
• manage the operation of critical technical functions including dot-au name servers, zone files and the dot-au WHOIS database
• liaise with national and international bodies on issues relating to the development and administration of domain name systems
• establish appropriate complaints handling and dispute resolution processes.

     governance

The organisation is governed by a thirteen member board of directors, of whom 11 are to be elected by members (in three classes) and two are coopted.

Elections are on a staggered basis, to prevent 'capture' by particular interests. Directors are elected as individuals rather than as representatives of an organisation. A list of current directors is here.

Membership is essentially open to organisations and individuals that satisfy basic eligibility requirements and are prepared to pay a membership fee that ranges from $100 to $20.

There have been suggestions that any dot-au domain registrant (domain name 'owner') would be automatically eligible to become a member of the company, in line with practice in Canada. However, acceptance of the idea is uncertain.

There are three classes of membership - Supply, Representative and Demand - each with three directors. The members as a whole initially elected two directors; that requirement was streamlined in 2002.

The Supply class consists of domain registry administrators and domain registration service providers.

The Representative Association class covers associations of at least 100 members, such as ISOC-AU.

The Demand Class consists of any legal person that does not qualify for Supply Class membership. more than two additional board members for terms not exceeding two years.

As of early 2002 the organisation had over 100 members, identified in a list here. In October 2003 the figure was 125 -

• 46 in the 'Supply' class, ie representing the registry, registrars and registrar agents
• 18 in the Representative Association class, bodies such as the Australian Chamber of Commerce & Industry, the Internet Society of Australia and the Master Plumbers & Mechanical Services Association of Australia
• 61 in the 'Demand' class, including individuals, law firms and others such as Caslon Analytics with an interest in the internet

'Capture' of auDA has been a recurrent concern, with suggestions for example that a particular interest sought in October 2003 to pay 40 membership applications. auDA has responded by enhancing existing rules, with proposals that encompass specifically identifying membership as personal right and prohibiting voting agreements (consistent with Australian corporations law), requiring Board candidates to be proposed or seconded by members of same class and introducing a three month qualifying period for voting rights.

     administration and resourcing

auDA currently operates from modest premises in Melbourne, with a staff of three, smaller than many counterparts.

It is currently dependent on membership fees, accreditation fees and a share of domain registration fees, and voluntary work by its directors and advisers. Concerns about resourcing were evident in calls by ISOC-AU for the federal government to provide $5 million start-up funding and claims that the early departure of CEO Joseph O'Reilly in 2000 was attributable to "a lack of funds and staffing".

Despite grizzling from some sectors, where there has been an expectation that standards can be articulated and implemented for free, revenue sharing is appropriate and is consistent with the practice of other industry self-regulatory bodies.

auDA's major injection of funds has been from the one-off auction of previously restricted generic domain names, which raised around $2.6 million in 2002. That money has been allocated to an independently administered trust fund.

Revenue for the 2002-2003 FY was around $3.88 million, with the major items of expenditure being legal fees and staff remuneration (the latter apparently lower than overseas counterparts).




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