Is auDA Contravening Its Constitution?

The current auDA Board and CEO obviously don’t like the backlash they are getting from many Members regarding their current lack of communication and transparency (and a few other things besides!). So they have come up with a plan to muzzle people. Am I exaggerating? You be the judge.

But First

I’m a blogger on all things domains – particularly in the .au space. Have been for a long time. Before I started Domainer.com.au, I used to own the forum DNTrade. I’ve been a successful domain investor for many years; and have enthusiastically participated on auDA working groups and the last “Names Panel”. I’ve even seen how the “Dark Side” works – I was the owner of 3 Registrars for a couple of months. So I feel that I have “just a bit of knowledge” to share. Anyone who knows me (or has read my articles), can always be guaranteed that I speak my mind without fear or favour. Wherever possible, I always look for the positive. Though, that has been hard of late when it comes to auDA. 🙁

auDA Now Wants To Silence People Like Me

Membership renewals are now due. Everyone got their invoices last week; and here’s the fine print to ongoing membership:

Please note as a condition of auDA membership, in renewing your membership, you are agreeing that:

I can’t imagine anyone having a problem with the first two bullet points – but it’s the last one that really stinks in my opinion. The Membership Code of Conduct. I believe (as do several lawyers I have spoken to), that it is unenforceable in it’s current form.

Don’t get me wrong – I don’t have a problem with a Code of Conduct per se, but I do have a problem when one of the clauses quite clearly contradicts the Constitution. It’s this one:

So anyone who dares to speak out on subjects that legitimately question or criticize an auDA Board Member, CEO or other member of staff can effectively be muzzled with this threat. At the Board’s discretion. That is total and absolute act of censorship for a Membership organization to unilaterally impose on their Members. In my opinion of course.

This Is What The Constitution Says

Here’s the link. Bolding is mine.

13.3 Expulsion of Members for Conduct Detrimental to Objects

auDA in general meeting may by special resolution terminate the membership of a Member if:
a. the Directors resolve that in the opinion of the Directors the Member may have been guilty of conduct detrimental to the interests of auDA or to the objects of auDA; and
b. the notice of meeting specifies the purpose of the meeting and the general nature of conduct referred to in the Directors’ resolution; and
c. the Member is given the opportunity to be heard at that part of the general meeting at which the resolution is considered.

And then this one is probably the nail in the coffin for their current plan.

31 REPEAL, VARIATION AND AMENDMENT OF CONSTITUTION

Subject to any provision in the Corporations Act to the contrary, this Constitution may only be varied, amended or repealed by a special resolution of auDA in general meeting.

♦  Where does it say in the Constitution that auDA can “temporarily suspend my membership until conflicting behaviours are resolved”?

Nowhere.

♦  It really is time that the Government stepped in and put their foot down. In my opinion, this is an abuse of power by a small group of people.

What do you think?

Ned O’Meara – 15th May 2017


Disclaimer

7 thoughts on “Is auDA Contravening Its Constitution?

  • Avatar
    May 15, 2017 at 10:33 am
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    Unconstitutional is exactly the right word, it directly conflicts with AUDA constitution and has no validity. I would say there is several motivations for AUDA doing this

    -To try and silence AUDA’s critics

    -To try and prevent members from making the decision on removal of other members and instead place it in the hands of “embattled directors

    -To try and put off vocal members from renewing (people who want to vote in new directors)

     

    If AUDA is serious about a code of conduct they need to alter the constitution by special resolution.

     

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  • Avatar
    May 15, 2017 at 1:57 pm
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    When will auDA abide to the Constitution itself in all areas?

    What is the process when auDA does not abide by the Constitution and people wish to have the matter addressed?Is there an outside independent non auDA body people can go to and who etc, auDA needs to make that process clear and publish it.

    3.2 Activities
    Without reducing the effect of clause 4, auDA will enhance the benefits to Internet users through: a. ensuring the continued operational stability of the domain name system in Australia; b. establishing mechanisms to ensure it is responsive and accountable to the supply and demand sides of the Australian Internet Community; c. the promotion of competition in the provision of domain name services; d. the promotion of fair trading; e. the promotion of consumer protection;

    f. adopting open and transparent procedures which are inclusive of all parties having an interest in use of the domain name system in Australia;

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  • Avatar
    May 15, 2017 at 3:42 pm
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    Sorry to be lazy, Ned, but was Point 4 in their last conditions of membership, or is this a brand new clause?

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    • Ned O'Meara
      May 15, 2017 at 4:03 pm
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      @Robert – Point 4 is in their newly created “Membership Code of Conduct”. This is clearly in contravention of the auDA Constitution. If they want to enforce it, then they have to change the Constitution. To do this, they have to call a General Meeting, and have 75% approval from both Supply & Demand Class membership.

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  • Avatar
    May 15, 2017 at 5:10 pm
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    Point 4 of the CoC is unenforceable under the constitution. Do these directors not get legal advice before embarking on such a ridiculous and offensive folly?

    Coc Up.

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    • Avatar
      May 15, 2017 at 6:52 pm
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      Whilst section 4 is the most objectionable, in my view the entire code of conduct is invalid because the board simply does not have the authority to remove a member, the method of doing that is clearly stated in the constitution.

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  • Avatar
    May 15, 2017 at 7:12 pm
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    I’m surprised they haven’t removed the constitution from the website too.

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