---------- From: Len Lindon <info§humanrights.com.au> Date: Thu, 07 Dec 2000 12:52:03 +1100 To: <idno-discuss§idno.org> Cc: "matthew.healy" <matthew.healy§accc.gov.au>, <kre§munnari.OZ.AU>, <ceo§auda.org.au>, <comments§auda.org.au>, <icann§icann.org>, <comments§icann.org> Subject: ICANN breakup case / 39. .au domain new Chairman: "What a joke!" (auDA Ltd AGM & new Board meeting) 7/12/00 "What a joke!" Former Chairman of the Prime Minister Howards's Liberal Party, Tony Staley is now the New Chairman of au. Domain Administration Corporation Limited. Asked to ratify Mr Staley's appointment as a Director, the thirty Company Members attending Tuesday's amicable AGM in Melbourne all laughed when the proxies were read out-- 28 for, none against-- and Mr Staley commented: "What a joke!" in a jovial tone. The Members present, having duly laughed as expected, then voted unanimously by raising their right hand to ratify Mr Staley's appointment. The joke got even better at the first meeting of the new Board of Directors the following day, Wednesday 6 December, when all agreed to make Mr Staley the new Chairman of the Board. Technically, Mr Staley is sharing chairmanship duties with previous Chairman Greg Watson under a co-chairing deal worked out before the meeting. Uh-uh. To really get the joke, you have to know that the Company Constitution allows the elected Board Members to appoint two other Directors. And that the Board two months ago (September 2000) duly chose to appoint Tony Staley and Greg Sword. Both Mr Watson and the AGM Notice described these Staley and Grew in hilariously deadpan style as "independent". Upon a query from the only longhaired male at the AGM as to how they could be described as independent, Mr Watson replied that they were "independent of the domain name system". So, there you have it. A non-elected director is now a new Chairman of the Company. And this bravura display of political engineering is just the beginning. Mr Staley has just twelve weeks before Prime Minister Howard welcomes ICANN to Australia. Internet heavies from around the world will gather at the Melbourne Exhibition Centre for a week of meetings and deals from March 10 next year. The Prime Minister would be delighted to show the world that the .au domain is of world standard and conduct a ceremony. Two problems. One, the Australian Competition and Consumer Commission is examining the Notification alleging ICANN/auDA breaches of Australia's Trade Practices Act. This Notification was made immediately following the ICANN meeting in its home state of California in early November 2000. The ACCC is still formulating its preliminary response. The new Board at auDA Ltd recieved formal notice of the Notification at its first meeting on Wednesday in South Melbourne. Most requested documents are now available on the web at the Internet Law & Regulation forum under New > Jurisdiction at http://internetlaw.pf.com/subscribers/html/ILRForum.asp Two, the Howard Government does not actually have the legal authority over much of the .au domain. Say what? In his Chair's Report to the AGM on Tuesday, Mr Watson summarised key achievments and ongoing activities for the period. On the key topic of "Authority", Mr Watson said: "Authority is something I've been working very hard to establish auDA as a credible alternative for managing domain names in Australia...We have presented our report to the Government and the indications are that we will be receiving Government endorsement in the next few weeks... We're working closely with Robert Elz. Ultimately we have to have the delegation transferred, it has to be done by ICANN. Ideally Robert has to approve and we're working very hard to meet his comfort level and his requirements. We believe a good understanding has been established." Mr Watson noted that "finalising the .au delegation and satisfying Robert that we are the right organisation to take over that role" was an ongoing activity. There were more non-suprises at the AGM when impoverished professor Peter Gerrand was quick to second the motions in support of Staley and Crew. Gerrand, recently retired from Melbourne IT, was also allowed to interrupt Chairman Watson to correct him and Mr Watson then stated that he agreed with him that Australia was a member of several ICANN boards and international telecommunications committees. The decisions made by 60 AGM voters (overwhelmingly white and male and corporate types) have significant impact on all internet users in Australia. Whether auDA Ltd is a corporation and thus possibly subject to the Trade Practices Act, or whether it is a government body and thus possibly subject to Administrative Law are questions the ACCC must be currently considering. The ACCC might also pick up on the fact that new Chairman Staley would certainly boost the confidence of two powerful stakeholders in this area-- the Howard Government and certain Big Corporate Players like Melbourne IT. Just like the worldfamous Melbourne Cup horse race each November, some locals punters are backing auDA Ltd to win the Australian domain name race whilst other insiders point to Mr Elz, the current ICANN delegate of the .au space, and the ACCC response as wildcards which even the legendary backroom skills of Liberal Party fixer, Tony Staley, can not hobble. Mr Staley was off to a flying start at the first board meeting-- out went formal voting on motions, in came "consensus". Sounds great, but what's it mean? Well, for one thing, as boardroom veteran Staley knows, it limits the scope for legal challenges to voting and motions-- because there aren't any in a formal challengeable sense. And, for another thing, the ICANN attempt to co-opt the term "consensus" is seen by most participants as bogus or "faux-consensus". The problems with the ICANN use and misuse of consensus style decision making is the subject of a serious indepth study just published in the Duke Law Journal (see extract below) and noted in the industry must-read icb mailout (see 12/5/00 ICBTollFreeNews.Com HEADS UP HEADLINES). China's sameday media statement asserting China's sovereignty over language and domain names for Chinese citizens was not discussed publicly at auDA Ltd this week. (see China Claims Its Own Domain, Reuters 8:15 a.m. Dec. 4, 2000 PST http://www.wirednews.com/news/politics/0,1283,40506,00.html "HONG KONG -- A dispute between the United States and China over the control of Chinese-scripted Internet addresses deepened on Monday as China reiterated its claim over all Chinese language Internet domain names...") Nor were the relevant and notorious statements in official US court testimony by ICANN counsel and Vice-President Louis Touton : -- "Although one of those factors is the wishes of the government of the country involved, no foreign government ³owns² its ccTLD or can order ICANN or the Department of Commerce to take any actions with respect to a ccTLD." (paragraph 19) -- "As stated above, no country ³owns² a ccTLD or has the rights to order ICANN or the Department of Commerce to change the manner in which a ccTLD is operated." (paragraph 20) -- source: US District Court, ES v ICANN, No. 4:00CV1785-DJS, Declaration of Louis Touton, 11 November 2000, as reproduced at http://www.geocities.com/gooda14/icann/Touton.htm Touton and ICANN are currently considering a French request to clarify how ICANN, a form of company not recognised in French law, would respond to the possible use by US courts of French law to break the ICANN contract with the French AFNIC. Looks like a busy Christmas season for Louis. And of course no mention at the auDA AGM of AURSC or ORSC or the unconnected or the undomained. ***************************************** CONSENSUS reference: Cited: 50 Duke L. J. 187 [*pg 187] ICANN AND THE PROBLEM OF LEGITIMACY JONATHAN WEINBERGÝ ABSTRACT INTRODUCTION I. HOW WE GOT HERE A. Early History of the Internet B. Internet Addressing C. The Transition D. ICANN II. THE PROBLEM OF LEGITIMACY III. LEGITIMACY AND ADMINISTRATIVE LAW IV. LEGITIMIZING ICANN A. The Techniques of Administrative Law B. The Techniques of Representation C. The Techniques of Consensus Cited: 50 Duke L. J. 187 [*pg 187] ICANN AND THE PROBLEM OF LEGITIMACY JONATHAN WEINBERGÝ ABSTRACT INTRODUCTION I. HOW WE GOT HERE A. Early History of the Internet B. Internet Addressing C. The Transition D. ICANN II. THE PROBLEM OF LEGITIMACY III. LEGITIMACY AND ADMINISTRATIVE LAW IV. LEGITIMIZING ICANN A. The Techniques of Administrative Law B. The Techniques of Representation C. The Techniques of Consensus ******************************************** DOCUMENT THIRTY-NINE TPA-ICANN/auDA: .au DOMAIN NEW CHAIRMAN "WHAT A JOKE!", report on auDA Ltd Annual General Meeting and new Board first meeting, Tuesday 5 December 2000 and Wednesday 6 December 2000, published 1.40am UTC Thursday 7 December 2000 Author: Len Lindon, Barrister & Human Rights Defender.Received on Thu Dec 07 2000 - 10:48:08 UTC
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