auDA Needs An Independent Ombudsman

Yesterday, I decided to withdraw my application to the AAT (Administrative Appeals Tribunal) in the matter concerning AIF.com.au and The Minister of Defence.

I did so for two reasons. First and foremost my ongoing health situation – and secondly, I had achieved almost everything I set out to do (apart from getting the domain name!).

Over many years, I have always fought for the rights of domain investors and auDA members. This blog I founded is a testament to that. When Robert Kaay purchased it from me a couple of years ago, he assured me that he would keep up the fight – and he has certainly done that! Whilst we do have detractors (particularly auDA), someone has to try and keep them transparent and accountable.

I reluctantly got involved in this action against the Minister of Defence solely because a decision made to grant my company permission to use a domain name was overturned, and it was obvious to me that there were external factors at play. i.e. auDA. This didn’t just affect me – it potentially endangered other domain investors and entrepreneurs.

I’m not going to specifically comment further on this because I gave an undertaking yesterday to the AAT that I would not (further) reveal information obtained by means of the “T Documents” I received from Defence via their solicitors. This was because auDA – through their solicitor – applied for a (non-party) confidentiality order via an interlocutory hearing yesterday. This is a matter of public record. As per the AAT website, it is unusual for the Tribunal to suppress information in the General Divison. So after I gave my undertaking, the Tribunal offered auDA’s solicitor the choice of having their application refused – or withdrawing it. They chose the latter.

As the Tribunal Member noted previously (and again yesterday) – and auDA’s solicitor reluctantly agreed – what has already been said and written cannot be unsaid and unspoken. But I will not be commenting further.

For the record, as a self-represented person before the AAT, until recently, I was not aware that information received as part of this process was not supposed to be used. And I did check their website originally, and found nothing in this regard.

auDA needs to have an Ombudsman

If any affected person in Australia feels aggrieved by a decision of auDA, who can they turn to for an independent assessment and adjudication?

As I wrote back in 2017, the big daddy of regulators (ICANN) has their own Ombudsman. Why not auDA? What better way to offer transparency and accountability? Beats self-assessment hands down!

What do you think?

10 thoughts on “auDA Needs An Independent Ombudsman

  • Avatar
    December 11, 2020 at 7:48 am
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    An ombudsman is a good idea. Most other industries that involve products, services, advice have independent scrutineers of some description.

    Jeff

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  • Avatar
    December 11, 2020 at 9:03 am
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    Domainer rocks. If it wasn’t for you guys, things could be frighteningly different. Well done Rob, Ed and Ned.

    Big tick from me for an ombudsman of sorts.

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  • Avatar
    December 11, 2020 at 9:14 am
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    Ned, I was a massive fan of Domainer when you started it in 2015 and was glad someone was sticking up for the domain name industry as I was finding my way through it. It was easy to see that what you were doing with it was something bigger than one person or a handful of people and it was also easy to see the mantra of the site was to “fight for the rights of domain investors and auDA members”, as you so eloquently stated above.

    I was honoured you allowed me to keep it alive when you wanted to hand it over in 2018 and I hope to continue to stay true to that mantra. I also hope to broadcast the importance and value of Australian domain names in new ways to help further educate Australian entrepreneurs and international businesses alike.

    I don’t always like coming across as so “combative” in some of my articles, but I’ve found that sometimes in life the only way to truly get a message out to the most number of people, and for them to actually care to do something about it, and to try to get a wrong situation righted, is to stand up on a milk crate and scream into a megaphone.

    I’ve said it before, but I’ll say it again… Thank you for standing up for the Domain Investor community in the past, and thank you for standing up in this case also, because as you said, what just happened to cause you to lose your generic three-letter acronym domain name by auDA, “potentially endangered other domain investors and entrepreneurs” in the future too.

    You legitimately paid good money to purchase that domain name, obeyed all the policy rules in acquiring it, but then had it stripped from you with no refund, no sensible explanation and no apology.

    Would anyone else like this happening to them in the future?

    The Federal Government declares Australian domain names are “critical infrastructure” and continuously update the relevant bill, including just last month.

    If the Federal Government see Australian domain names as so important, and as you suggest in your article today, and after what we have just seen played out in public (in regards to what auDA did, and then simply brushed it off), I agree that it’s high time auDA was given their own Ombudsman.

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    • Avatar
      December 11, 2020 at 7:40 pm
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      Im going to digress for a bit (sorry Ned!) but this is a HUGE issue you raise relating to .au as Critical Infrastructure (note the capitalisation), Robert.

      CI has a very specific meaning to those in Canberra who would command and control vast parts of the economy, all in the name of national security.

      For many years, I’ve intentionally referred to .au as a very important part of Australia’s technological and economic infrastructure. But I always opposed it being labelled Critical Infrastructure.
      Over the years, auDA engaged meaningfully and constructively with agencies such as the Attorney General’s Department and in voluntary strategic and operational initiatives such as the Government’s Trusted Information Sharing Network (TISN).
      For the layperson, the carefully curated relationships between auDA and the right people & bodies in Canberra meant that if something “went boom” with .au, we knew whose phone number to dial and could be sure the phone would be answered.
      Appropriate agencies and individuals were regularly briefed on, and deeply aware of, auDA’s operations and security preparedness and trusted that .au was in good hands, could be rapidly and reliably distributed if .au was attacked and could call in international assistance if it was outside of auDA’s contacts network. Equally, auDA was a trusted partner that participated in cyber exercises, provided commentary and advice, and could be called on by Government if and as required.

      There were always agencies who wanted to wrap .au / the DNS up in CI, under the guise of offering help if auDA needed it. But that was a fraught offer because help often equals control.
      Good, ongoing working relationships meant certain people in government always “had .au’s back” if the spectre of CI control ever came knocking.

      However, from what I see in recent developments relating to the Security Legislation Amendment (Critical Infrastructure) Bill 2020, its exposure draft, and the public consultation around it, auDA has either dropped the ball in maintaining a presence and profile in government circles, is no longer trusted to carry out the function it was established to, or is simply being ignored.

      For those that are so inclined, look through:
      https://www.homeaffairs.gov.au/reports-and-publications/submissions-and-discussion-papers/protecting-critical-infrastructure-systems
      It is seriously scary, half-witted, dangerous stuff.

      The short version: Government has come up with Orwellian legislation that shows a fundamental lack of understanding of the distributed nature of the DNS and its management. Daft terms like “an Australian domain name system” and “critical domain name systemS” abound. The Bill refers to entities that “own” domain name systems. Most importantly, the proposed law will empower the Dept of Home Affairs and Peter Dutton to name, control and command .au, when it is bleedingly obvious they dont know what they are speaking about.

      auDA’s representations – https://www.homeaffairs.gov.au/reports-and-pubs/files/critical-infrastructure-consultation-submissions/Submission-030-auDA.PDF – were ignored and previously-adequate provisions under S474 of the Telecommunications Act are now longer not considered enough.
      I am not catastrophising when I say this Bill is bad news for .au and those who make their living through it and, rather than being an inevitable shift to greater control by the State, represents a failure of auDA to lobby successfully for .au and maintain the standards and partnerships of the past.

      • Neddy
        December 13, 2020 at 2:22 pm
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        Paul, I’ve read your post about 4 times trying to get my head around it. If you have the time, can you please succinctly bullet point the implications to .au registrants (and particularly domain investors)?

        Also, given your knowledge of Government, what is the actual likelihood of this happening?

  • Neddy
    December 11, 2020 at 9:47 am
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    Thank you for your kind words Robert. And I know they are sincere.

    The only reason I handed over Domainer to you for a token amount was because I knew you would carry the baton on in your own unique way. And you certainly have.

    And I love how you have improved the site as well. The podcasts that you and Ed do are fantastic – though I do wish there was a bit more local talent featured. 🙂 Perhaps an auDA Director or two? Or the auDA CEO (Rosemary Sinclair) or COO (Bruce Tonkin). Ha ha – I know I’m day dreaming!

    As a former politician once said when asked why he had formed a political party, he famously replied it was “to keep the bastards honest”.

    I enjoy writing articles about .au, and funnily enough, Rosemary Sinclair has through her actions inspired me to re-enter the fray. As always though, it will be in a constructive manner. Thank you for the opportunity.

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  • Ed Keay-Smith
    December 11, 2020 at 12:23 pm
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    Hey Ned

    Regardless of the outcome, creating awareness of what is happening in the Australian domain space and with auDA is what Domainer is all about and we thank you for getting in the ring. “Keep the Bastards Honest” is a very appropriate phrase I would say so bravo to you mate.

    Rob was and is 100% the guy to take the baton from you and is fearless in pursuit of honesty and fairness for all in this space and I am very glad I get to do the podcast along with him.

    Domain investors play a critical role in the Australian domain landscape and we are not asking for a different set of rules for us compared to everyone else from auDA, we just expect and demand that we be treated fairly and impartially when it come to rules and policy.

    Stay well Ned and have a great Christmas & New Years with your family, health and family are the priority over domain names 1000%.

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  • Avatar
    December 12, 2020 at 4:37 am
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    It is arrogant and disturbing that auDA felt it necessary to spend registrants money to employ a lawyer to go to this tribunal to try and quash any mention of the actions of those responsible.

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    December 13, 2020 at 6:51 am
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    No organisation that makes decisions which can financially affect the fortunes of people or organisations should be a law unto themselves.

    This saga denotes to me that some sort of 3rd party mechanism should be available to anyone affected by an arbitrary decision.

  • Avatar
    December 13, 2020 at 9:58 am
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    Should it really matter how anyone discovers information? Truth and transparency are vital.

    If these disclosures are true, why did Rosemary Sinclair try so hard to cover them up?

    Like a match referee or a bunker or a tribunal in the sporting world, this auDA behaviour is where an ombudsman can ensure fair play.

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