Today we have a guest post which explores the range of potential options available to the Federal Government in regard to the recently announced review into auDA.
The author is the vastly experienced and well qualified Paul Szyndler.
Paul worked at auDA for over 8 years mostly as General Manager of International and Government Affairs. He was also one of the 14 employees that were “managed out” by auDA over the last 18 months.
Before that, he spent a similar amount of time in Canberra with the Department of Communications, focussing on matters relating to .au, as well as the Australian Government’s engagement at ICANN and other forums.
auDA Government Review – by Paul Szyndler
When Ned asked me to write a guest post about the Australian Government’s recent announcement of a review into auDA, I was all-too happy to agree. The gamut of possible outcomes and what each could mean for the future of .au is something that I have been pondering for the last few days.
Before I start, I need to note that one of the key Terms of Reference announced by the Government states that the review will examine and make recommendations on: “how to ensure that Government and community expectations inform auDA’s operation and decision-making”.
So, the important pre-supposition here is that the goal of the process appears to be the reform and improvement of auDA, not its supplantation. Any estimations I make in this post are influenced by this assumption.
I’ve decided to list a range of possible scenarios, ranging from those requiring least action on behalf of the Government, to the most interventionist. For each, I have taken the liberty of including a few personal comments about likelihood and possible effects. I’d love to hear comments and views.
- Outcome: Nothing changes. The clear majority of respondents support the current management and oversight structure and the Government simply re-endorses auDA in accordance with the terms set out 17 years ago.
Likelihood: Nil. Not only are members and stakeholders dissatisfied with the status quo, but I suspect this is also true for auDA Board members. Also, although the Government has tactfully refrained from direct criticism of current arrangements, the initiation of a review itself suggests that they themselves hold some concerns.
- Outcome: Very little changes. auDA continues in its current form and function, with minor adjustments that are recommended by Government, implemented by auDA and subsequently endorsed.
Likelihood: Slightly more likely than Option 1. But it still seems like too little. Now that the Government has committed to active engagement, it needs to be shown to be delivering something and window-dressing would not be well received by many stakeholders.
- Outcome: auDA-led review. Numerous recommendations for change and “modernisation” (the Government’s terminology) are made and auDA is tasked by Government to undertake a major consultation process to “get its house in order” and report back on outcomes for final endorsement.
Likelihood: High. I say that because it satisfies two major stakeholders – the Government because it is seen to be initiating meaningful reform but not controlling the process and auDA precisely because it is able to retain control. It would also be a “good news story” for both to be able to draw together existing auDA Constitutional, policy, governance and (soon) membership-led reviews and provide them with an official stamp.
- Outcome: Government-facilitated review. Again, numerous recommendations for change are made, but this time the Government takes an active stewardship role in the consultation process and auDA is merely one stakeholder among many.
Likelihood: Moderate. Such an approach has a precedent – NOIE’s facilitation role in gathering and consulting stakeholders after the failed ADNA experiment, which eventually led to the creation of auDA. This would be my preferred outcome but I believe it is less likely given that auDA is already an established entity and the system is not being built from scratch.
- Outcome: Direct Government intervention – AKA the “Nuclear Option”. Stakeholder feedback is so universally negative that the Government either withdraws its endorsement or invokes its reserve powers under the Telecommunications Act 1997 and ACMA Act 2005. Either auDA or another entity is “declared” as a manager of electronic addressing and is subsequently directed by ACMA / ACCC regarding future actions.
Likelihood: Virtually Nil. I apologise to those that wish it so, but the Government has no taste for such interventionist action. It runs counter to the long-established multi-stakeholder model and governmental policy. Revocation of endorsement is a massive step and the powers enshrined in legislation are largely designed to address individual circumstances where auDA (or whoever) is directed to take or abstain from a particular action. The only way I could see this scenario playing out is if the review receives irrefutable evidence from stakeholders (or whistleblowers) of systemic failures and mis-management that has grievously damaged .au and harmed the interests of the Australian Internet community. Even then, the Government will need to be convinced it has no other course of action available to it.
So, how will this all play out?
First, don’t bother lodging a submission calling for a complete government take-over of .au. It won’t happen, and your considered opinion will end up in the shredder faster than you can say “Hilary’s mail server”. That is, of course, unless you have the “irrefutable evidence” I mentioned above. If the Nuclear Option is invoked it will be out of absolute necessity and I will mourn on the day that happens as it will signify the obliteration and fundamental failure of everything many of us put years of effort in to building.
However, as with any situation with a political dynamic, I expect the outcome to gravitate somewhere towards the middle. We will see either recommendations for reform that are implemented by auDA (with consultation), or a similar process that is facilitated by the Department of Communications and Arts.
My great fear is that the former will occur, while my preference is for the latter. To successfully move between these shades of gray, it will be vital for stakeholders to lodge reasoned and balanced submissions to the DoCA. These must eloquently highlight that, while the existing model can do with some refinement, much of the current uncertainty has largely been caused by the fractious leadership of the last 18 months.
Bringing all interested parties together in a consultation where auDA is an equal stakeholder among many is an appropriate and measured solution. But to run a similar process with auDA in charge would provide the organisation an opportunity to lock-in all the contentious changes they have proposed over the last 18 months. They could also strip out the elements that we still see as valuable in the current model, delivering a result that is not actually in the best interests of all Australian stakeholders.
The difference between the two scenarios may appear subtle on paper, but nothing could be further from the truth.
Looking forward to hearing your views.
Paul Szyndler – 25th October 2017
Disclaimer
Good article but there is a more than 50% chance the Government will take back the responsibility and run it via The Department Of Communications.
This has already been hinted at by auDA CEO, auDA Board and in various areas of government. Of course some are downplaying this option…there is money and self interest at stake for some.
Self Regulation has led to Self Interest coming first…again the auDA Constitution and role of auDA all together.
The system of memberships process which potentially allows “stacking” to try and get seats on auDA Board and affect policy and money flow has never been stopped to date.
The upcoming auDA election could well have some “stacking” which will again lead auDA nowhere.
I support The Commonwealth Department Of Communications in line with the existing auDA Constitution powers of running it along with them also taking back in line with the auDA Constitution the currently subcontracted wholesale registry role currently performed by an outsourced foreign company.
Over 20 international media outlets have now picked up on this issue. There is no going backwards now. ..more media will dig a lot deeper.. a major FOI is, awaiting response by auDA and Department of Comms.
The Government is responsible now. It is the time for them to really investigate. Review and Act. No Whitewash!
Whistleblowers also need government protection…a lot of people want to speak up but have been “muted”. This is not accountable or transparent, nor in the best interests of the .au namespace management or Government.
It does appear the new CEO has uncovered a lot of issues so we also need to ask why for so long have things been allowed to occur? The current FOI hints at some very serious auDA historical issues. Who there then? What was done about it all? Where are those people now and how are they still involved?
I wonder if staff who have been forced to sign gag orders as part of settlements with AUDA will be able to speak out?
I agree. I don’t see the chance of the nuclear option being Virtually NIL.
Sean,
I have to respectfully disagree with you about the likelihood of full governmental takeover.
I choose to readily disregard any comments or hints made by the auDA CEO or Board. First of all, it is grossly inappropriate for them to be making any such noises (if they are). How could such leaks be interpreted as anything other than a veiled threat to members?
Secondly, just because auDA representatives claim, and legitimately believe, that takeover is a likely scenario, does not mean that this is a genuine view of those they have met with in Canberra.
I agree that a whitewash is not acceptable and that is why I have flagged it as an unlikely scenario. But equally, a full intervention, even with the presentation of considerable evidence of mismanagement, seems equally unlikely.
The distinction I was trying to draw in my post was between the government trying to renovate the current house or instead choosing to “knock down and rebuild”. I still believe the latter could come to pass through a firm consultative and reform process and not by government taking over the whole thing. I just cant see government re-possessing the property.
All that said, I note that you give takeover a “more than 50% chance” and I have even allowed for it as a distant possibility in my post. So lets agree to disagree on the odds and work constructively as this all plays out.
By the way – you raise the long-running internal forensic investigations and outstanding FoI that question the historical probity of auDA. Wouldnt it be nice to see those publicly? How can any of us involved in the past respond when we simply do not know what the accusations are? I have heard these mutterings have been emanating from auDA for many months, from many sources. Once again – it is grossly inappropriate.
I think this is a valid and well justified call for the information to be released.
https://www.righttoknow.org.au/request/au_historical_financial_irregula
Government, Public, auDA Members, past/present/ future auDA Consultants and the millions of paying .au registrant consumers have a “right to know”.
The Government should perform the initial review and that would logically involve reviewing recommendations from auDA. I don’t see the Government asking auDA to entirely conduct the review. That should not occur because
The ultimate outcome may be that the .au domain space is still administered by auDA although with different governance and frameworks. My feeling is that it will be left in the hands of auDA but with the Government taking a larger role and a more intrusive role in the management and governance of auDA.
Whilst the objects of the organisation involve consulting members, that does not necessarily mean that membership needs to take the form it does now.
What I don’t want to see is a move away from auDA being a membership-based organisation (although it is not now a true membership organisation- in the corp law sense of the word). auDA needs to answer to someone, I don’t want to see it only answer to the Government or some other pseudo-government body which would be hesitant to intervene.
That should not occur because – it is putting the cookie monster in charge of the cookie jar.
Hi Nicole,
Perhaps I was unclear regarding the scope and focus of my post.
I agree that the Government will set, scope and undertake the recently announced review. No one else will control that.
I was postulating possible outcomes from that review. Yes, a review that recommends a subsequent review / reform sounds onerous, but that is where we are at now.
My big question is will Government put auDA in charge of a subsequent reform process, or undertake the process itself (with appropriate engagement from auDA)? The second option is clearly superior, but I fear political risk-aversion will lead to the first. Which, yes, is putting cookie monster in charge of the cookie jar.
Thanks for the clarification. I was wondering why you appeared to be combining the process of the initial review with the outcome.
Does ICANN have any say Paul?
That is a very incisive question Scott!
Of course, the answer is “yes”.
After all, the delegation for .au is between auDA and ICANN. Although nominally a tripartite agreement, contractual powers reside with two parties and the Australian Government simply “endorsed” the arrangement.
That said, there is a big difference between the powers ICANN may have and the powers they will actually exercise. Delegations and redelegations are very serious matters and move at a glacial pace. ICANN will not act rashly and without clear Australian Government advice.
ICANN will be watching this scenario closely, but will not intervene unless requested / directed.
For way more background than anyone ever wants to read, see:
https://www.icann.org/resources/unthemed-pages/au-2012-02-25-en
ICP-1 (f) 😉
Hehe – ICP-1 is a dirty word at ICANN these days.
It was a unilateral statement and vehemently opposed by ccTLDs.
See page 7 of:
https://www.ntia.doc.gov/files/ntia/comments/110207099-1099-01/attachments/DRDWG-DraftFinalReport.pdf
RFC1591 is considered gospel!