Michael Verga wrote:
] 
] This is something that was, very unfortunately, always going to happen. I
] know I've been very vocal and virulent about "that situation" from the day I
] became a member of this list, but that was  driven purely through a sense of
] outrage and moreover concern as to how such a decision (to allow a market
] player to host the data) could have been made in the first place.

Looking at the new web site, it looks like the relevant information
on AUNIC Hosting (including the Tender process) can be found at:
	http://www.auda.org.au/about/news/2000011001.html
	http://www.auda.org.au/about/news/2000040501.html
	http://www.auda.org.au/about/news/2001060301.html
	http://www.auda.org.au/about/news/2001101901.html
	http://www.aunic.net/changes.html
if you want the historical background and process as well as the
current situation.

] A Code of Practice.
] 
] So far after having attended the meeting on Friday, 3 weeks ago, I can see
] that we are in for a dose of the " More of the sames," unless we are very
] careful.  The draft currently being developed is merely a list of guidelines
] crossed with a few warnings. Our Industry clearly needs a firm set of laws
] and rules as we have an over-abundance of individuals who prefer
] interpretations and "so-forth".

The Interim Code of Practice is open to public comment.
So far it seems that no comments have been received by auDA
(unless they were so recent they haven't been published yet).

I trust the information at
	http://www.auda.org.au/transition/
explains the situation and auDA's approach.

I think it is a good idea that an industry code of practice is developed
by industry consensus facilitated by auDA.  In other words, the *industry*
(especially registrars) should decide what it wants to put into the code,
and auDA should do things like organise meetings, provide secretariat
services and make sure progress is being made.

But for that to work, you need an industry.  At the moment we have 2 or 3
commercial registrars, and only one in com.au.  Setting a final code of
practice in stone now would be pre-mature - we need to have a competitive
registrar industry first, so those new registrars can fully participate
in the process of drafting the code.

So I think having things like a minimal interim code of practice for
the short term is a good thing, until the industry is ready to develop
a proper code itself (with some support and cheerleading from auDA).

Under the circumstances (its only an interim code of practice, it isn't
really customised for .au, and there hasn't been much chance for local
industry participation yet) I think it is reasonable to start with the
interim code being voluntary, until we get a better idea of how it works
in practice operationally, and until the industry has time to nut out
these issues and try to reach rough consensus (early next year?). 

In short, just because it starts out being voluntary doesn't mean it
has to stay that way forever.

There are also other ways to tackle these sort of issues, for example
in new registrar agreements (contracts) and the registrar accreditation
process.  A code of practice can be part of a multi-faceted approach.

] Laws can be enforced, albeit with difficulty 'against' litigation: warm and
] fuzzy guidelines simply get smashed.

I want to be clear about this.  In Australia, it is up to the Government
to make laws and to enforce laws.  auDA is not the Government.  auDA
cannot make laws and is not responsible for enforcing laws.  For example
it is not auDA's role to enforce the Trade Practices Act (including TPA
Section 52, Misleading or Deceptive Conduct).

What auDA can do is enforce provisions in contracts it makes with other
companies.  Notably contracts with auDA Accredited Registrars in the new
competitive registrar system.  This would be the main legal basis on which
auDA will in future be able to take any action.

The new Registrar Agreements are designed so that as well as registrars
having to comply with an industry Code of Practice and auDA Published
Policies (and a few other specific things like non-solicitation of
registrants using whois data) themselves, registrars must also require
their resellers to comply with auDA policies etc.

I think the idea is that if a registrar becomes aware that one of their
resellers is doing something naughty, then the registrar would need to
either make the reseller stop, or end the registrar/reseller relationship.

If the registrar failed to do that, then auDA could force the registrar
to take action or face the consequences of being in breach of contract
(like losing Registrar Accreditation?).

If you want enforcement and don't want to wait until the new competitive
registrar system is in place, then I suggest you talk to a relevant part
of the Government (like the ACCC, which has offices in all state capitals)
and give them enough evidence to show that a law has been broken.  
Or talk to a lawyer about your options.

Disclosure: I am a Director of auDA (but I'm not speaking for auDA).
For more information see  http://www.cyber.com.au/users/djk/.
__________________________________________________________________________
 David Keegel <djk&#167;cyber.com.au>  URL: http://www.cyber.com.au/users/djk/
Cybersource P/L: Unix Systems Administration and TCP/IP network management

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