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AUDA: What is the effect of a "tainted" board vote?

Discussion in 'Domain News' started by snoopy, Aug 17, 2016.

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Do you believe that the .AU vote is tainted?

  1. YES

    12 vote(s)
    75.0%
  2. NO

    4 vote(s)
    25.0%
  1. snoopy

    snoopy Membership: VIP

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    I'm curious as to whether people have an opinion on the validity of the .au vote. If board members are voting on something where a conflict on interest arise and they still vote, what is the effect of that vote?

    Was reading the article and maybe this is an insight into what is happening at AUDA right now (or maybe not). AUDA certainly seem to be "lawyering up" well after the fact. It reads to me like such a vote is sitting on very rocky ground legally.

    http://www.millsoakley.com.au/managing-conflicts-of-interest-at-board-level/

     
    DomainNames likes this.
  2. DomainNames

    DomainNames Membership: Community

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    The conflict of interests are obvious. Several auDA board members aggressively lobbied for a Yes only vote and they provided incorrect information which has since been proven to be not factual.

    The facts are clear
    1. Several Board members engaged in conduct which breached their duties and obligations
    2. Several Board members stand to make a financial gain from their actions.
    3. auDA has done nothing about it

    https://www.google.com.au/?gfe_rd=c...d=ssl#q=corporations+act+conflict+of+interest

    http://www.findlaw.com.au/articles/4431/directors-duties-the-duty-to-avoid-conflicts-of-in.aspx
    http://www.millsoakley.com.au/managing-conflicts-of-interest-at-board-level/

    Managing conflicts of interest at board level
    June, 2011
    Organisational governance has received much attention since the financial market crash of 2008. Good governance is fundamental to the success of any organisation and NFPs are no exception.

    Introduction

    Board members have a fiduciary obligation – to act in the best interests of the organisation that they serve – in an ethical manner. Board members must:

    • act in good faith and put the interests of the organisation ahead of their own;
    • exercise their powers for the purpose of the organisation; and
    • observe a duty of care in discharging their duties with regard to the law.
    It is the collective duty of the board to ensure that the organisation is fit for purpose and provides strategic direction to attain its goals.1 NFPs face the challenge of balancing the needs and rights of its many stakeholders with the needs of the organisation’s strategic objectives.

    What can be done to ensure good governance? It starts with the ethics and principles of each board director. If the board behaves ethically and lawfully, then this sets a high bar for the rest of the organisation and has a fundamental influence on dealings with all stakeholders. Procedures must be put in place to reinforce ethical conduct through good governance for board members and staff.

    Some aspects of good governance, such as the management of a conflict of interest, are based on the circumstances and can involve a subjective assessment. Where the aspect of governance, such as managing a conflict of interest, is difficult to define, then it is best if there is a procedure in place for examining the potential conflict whenever it arises.

    How do you identify a conflict of interest?

    The most fundamental duty of any Board member is to act in the best interests of the organisation. Board members must be able to say that the board decisions were made fairly and impartially. A conflict of interest is where a board member puts his/her personal interests ahead of the interests of the organisation.

    An example of a conflict of interest is where a board member’s duties to the organisation clash with duties elsewhere (family, employment, business relationships etc).2 The type of conflicts of interest that are easiest to identify are those that involve financial gain for the board member or his family, such as the sale of property to a family member at below market rates, or the awarding of a contract to the board member or his family members.

    Indirect financial benefits can also arise such as: awarding an employment contract to a spouse; or making a grant to a board member’s disabled child. Other conflicts can arise where decisions are made in a particular way to benefit a friend, or the decisions involve a conflict of loyalties. Conflicts of interest inevitably arise because board members are members of the community and have numerous family, social and business relationships.

    What is the impact of a breach of duty?

    Conflicts cannot always be avoided but they must be identified and action must be taken to ensure that the conflict situation is mitigated effectively. If a conflict of interest does arise and is not prevented, it can have a very damaging impact on public confidence in the board and the organisation. This can result in an adverse impact on fundraising, volunteering levels, government grants and general community confidence. The law may only protect a board member who breaches the duties of office if the breach was due to an honest mistake.3 If a breach occurs and the board member knows it is a breach, then the board member will be held personally liable and ordered to rectify the loss or damage caused.

    Corporations Act 2001 breaches

    Board directors of NFPs that are companies limited by guarantee are subject to the provisions of the Corporations Act 2001. Directors are required to declare any conflict of interest when the organisation enters into contracts, and failure will result in a fine.

    Strategies for avoiding conflict of interest

    The board should adopt policies and procedures that address:

    • how a conflict of interest is indentified; and
    • what steps should be taken when such a conflict arises.
    The policy should include how the board members should disclose their personal and financial interests and how they should deal with gifts made to them in the course of their role on the board. It should also include under what circumstances relatives or friends of the board members can be hired or considered for contracts etc.

    It is a good idea to make the policies and procedures and certain decisions (especially with regard to tendering and entering into contracts for services and equipment) publicly available and open and transparent to the wider stakeholders.

    Some boards require all directors to make an annual declaration about the respective business dealings and boards memberships of themselves and their immediate family members. It also promotes the public perception of the organisation as a transparent and open one, if the make up of the board reflects the diversity of the community which it serves.

    Legal advice

    Where a board is concerned that there may be a risk of a real or perceived conflict of interest, then legal advice should be sought to assess the situation and provide advice on how to avoid the conflict. If decisions are made by the board that involve a conflict of interest, then there is the possibility that the decisions will be legally challenged, resulting in personal liability of the board members.

    When a conflict of interest arises, what then?

    The board should be notified as soon as a potential or real conflict of interest is identified. Information should be provided about the nature of the conflict and how it can be dealt with. At the investigation stage the board should not publish papers that discuss the matter and all discussions should be held on a formal and objective basis.

    The board member who is implicated in the potential or real conflict of interest should declare their interest and leave the room during the entire discussion of the matter and should not return until invited by the other board members. The minutes of the meeting should record why the board member left the room and at what time they returned to join the meeting. If legal advice is that the conflict cannot be resolved, then the board member must resign from the board.

    The management of conflict of interest within a board can be an emotionally difficult and confronting experience for all involved and undermine the good relations and workings of the board. It is always best if such situations can be avoided at the outset by prompt notice whenever a board member suspects that a conflict of interest issue may arise.

    What conflict of interest policies can the board adopt?

    It is a good idea for boards to adopt a conflict of interest policy. Such a policy should include:

    • why the policy has been created;
    • a section for board members to declare interests (with examples);
    • a privacy statement to protect board members’ declarations;
    • steps to follow if conflicts of interest are identified;
    • steps that the board will take when a conflict of interest is identified; and
    • how anyone with a conflict of interest will be excluded from managing or monitoring contracts.
    The Our Community website provides facts sheets that include the following sample:

    Sample Conflict of Interest Policy:

    A Board member should avoid any conflict arising between their personal interests (or the interests of any other related person or body) and their duties to the organisation.
    A Board member must not take advantage of their position on the Board to gain, directly or indirectly, a personal benefit, or a benefit for any associated person (their wife, say, or a commercial organisation).


    A Board member shall not make use of inside information.

    The personal interests of a Board member, and those of associated persons, must not be allowed to take precedence over those of the organisation generally.
    A Board member should seek to avoid conflicts of interest wherever possible. Full and prior disclosure of any conflict, or potential conflict, or the appearance of potential conflict, must be made to the Board. Once the conflict has been declared to the Board, the Board must decide whether the Board member should:

    • Refrain from voting (this is a minimum)
    • Refrain from participating in the debate
    • Withdraw from the Boardroom during the debate and the voting
    • Suggest that the Board member consider resigning from the Board
    Where possible, the Board should develop guidelines on what kinds of appearance of conflict call for what level of care.
     
  3. DomainNames

    DomainNames Membership: Community

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  4. DomainNames

    DomainNames Membership: Community

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    Might be time for a class action lawsuit.

    3 million existing registrants
    may have a valid claim over the surveys, not being advised all the facts, the detrimental affect it will have on their rights, business, disruption the process has had on their business, IP and domain name assets so far etc.

    People who bought .com.au names at the auDA auction will clearly have some valid claims and rights. No other country kept the generic names and then auctioned them for such massive profits and used detailed reasons why people should invest in the .com.au as a great opportunity etc.

    auDA did not auction any .net.au or id.au names this obviously also affects automatic rights for any new proposed direct .au extension.

    .co.uk and .co.nz gave automatic reserved rights to the existing registrants
    • .co. uk 5 years automatic reserved rights for the equivalent .uk
    • .co.nz 1 year automatic reserved rights for the equivalent .nz
    For New Zealand many people did not even know about the change and missed registering their .nz. within the 1 year period this has created major problems and disputes. It has been proven 1 year was not a long enough period and New Zealand did not properly survey all registrants and inform them of the proposed additional extension. Foreign owners of co.nz often missed out as they did not see or hear about it.

    2015 / 2016 was the worst growth year ever for New Zealand domain name registrations and renewals. Many have dropped their names and moved to buying other options or even .com options and more variations. What supply did in NZ is a stark warning to Australia of a mess which can be avoided
     
  5. helloworld

    helloworld Membership: VIP

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    Who are the board members, names and affiliations and what specifically is the conflict of interest. This should be public
     
  6. DomainNames

    DomainNames Membership: Community

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    There is plenty of public information here.
    Many have known about it and spoken about it for years including past board members and policy panelists;

    https://www.google.com.au/?gfe_rd=c...xpWADg&gws_rd=ssl#q=auda+conflict+of+interest
    http://www.domainer.com.au/when-does-a-conflict-of-interest-exist/
    https://www.auda.org.au/about-auda/our-org/board/
    auDA Board
    Board Meetings
    Click here for Board meeting schedules and minutes.
    Current Directors
    Name and Class Term
    Stuart Benjamin

    Chair
    Demand Class 27/10/2014 - 2016 AGM
    Simon Johnson
    Demand Class 27/10/2014 - 2016 AGM
    Erhan Karabardak
    (Sarar Pty Ltd)
    Supply Class 27/10/2014 - 2016 AGM
    Joe Manariti
    (SWiM Communications) Supply Class 27/10/2014 - 2016 AGM
    George Pongas
    (AusRegistry)
    Supply Class 30/11/2015 - 2017 AGM
    Kartic Srinivasan
    (Melbourne IT)
    Supply Class 30/11/2015 - 2017 AGM
    Tony Staley Appointed by the board under clause 18.2 of the auDA Constitution
    Grant Wiltshire
    Demand Class 30/11/2015 - 2017 AGM
    Dr. Michaella Richards
    Independant 10/10/2016 - 2017 AGM
    Leonie Walsh
    Independant 10/10/2016 - 2018 AGM

    http://mailman.anu.edu.au/pipermail/link/2009-April/083097.html
    "auDA have created a monster in that the board of auDA, and most of their policy panels, seem to have a fair number of registrars as members (as stakeholders of course). When I was on an auDA Names Policy Review panel a few years back that seemed very odd to me. Some might even use the words 'conflict of interest'. "
     
  7. DomainNames

    DomainNames Membership: Community

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    auDA "supply" Board Member Ausregistry
    auDA "supply" Board Member Melbourne IT ( associated entities, staff and resellers)


    https://www.auda.org.au/assets/pdf/2015npp-final-report.pdf

    "However, one large registrar group emailed its customer base soliciting a “yesvote to the proposal." auDA

    https://www.tppwholesale.com.au/blog/vote-yes-opening-au-direct-registrations/
    "Why you should vote YES to opening .au for direct registrations

    Brett Fenton has been a director of auDA, is on a number of names panels and is currently the Chief Customer Officer of Melbourne IT Group. This opinion piece reflects Brett’s own views and is not necessarily reflective of the company’s views.
    Written on 3 September, 2015 by Brett Fenton"

    "Patrick Remy-Maillet says:
    September 07, 2015 at 5:13 pm

    The opinion expressed in your article by Brett Fenton from Melbourne IT Group is entirely a one-sided commercial point of view aimed entirely at benefiting those involved in the business of selling Australian domain names. Who do you think will be the bulk of those registering second level .au domains to begin with?... the same businesses, organizations, associations and people that have already registered their respective domain names in order to protect the exclusivity of it. What guarantee would the consumer (the Registrant) have that no one else registers a second level .au name that already exists as .com.au, .org.au, .net.au, etc.? What safeguards will be in place to protect existing Registrants from squatters and racketeers?. That assurance is more important than any marketing-bent argument."

    http://www.domainer.com.au/draft-recommendations-from-the-2015-names-policy-panel/

    NETREGISTRY www.netregistry.com.au/blog/vote-yes-to-opening-.au-to-direct-registrations
    "So if you want the option of a simpler domain in .au, now is the time to voice your opinion by heading over to:

    https://www.surveymonkey.com/r/WKZZLPV

    We strongly encourage everyone to vote to support the change. Australia is behind the rest of the world in many things, but let’s push for this change!"
    auDA SUPPLY BOARD MEMBER AUSREGISTRY
    https://www.ausregistry.com.au/product-innovation-will-produce-the-next-3-million-au-domains/

     
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  8. DomainNames

    DomainNames Membership: Community

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  9. DomainNames

    DomainNames Membership: Community

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    The voting seemed to be "tainted" and so did the processes followed.. This will be used in any upcoming Class Action.