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WHY the 955 must go.

Scott.L

Top Contributor
At the SGM, I asked Mr Leptos (in as many words) How did 955 Supply Related Persons (as employees) come to be Demand Class Members under the auDA constitution. I have always maintained that 9.5 prohibits a Supply Related Person from qualifying for Demand Class Membership because 9.4 is very clear cut about who may qualify for Supply Class Membership.

In my opinion, Demand Class Membership was intended for Australian Non-Supply related persons. Accordingly, at the SGM Mr Leptos said, He would post my question on the auDA website along with advice received from Ashurst that he claims was used to approve these applicants.

Mr Leptos was given 7 days to respond to my question; unfortunately, the response I received indicated that it may take weeks before he responds? I wasn't happy about that response, given that Mr Leptos must have received or made his own determination about this matter prior to it been raised at the SGM, otherwise, how did 955 Supply Related employees get approved for Demand Class Membership.

Cheers, Scott
 

Attachments

  • Letter to auDA_Mr Leptos_ Supply_Related_Person_Public_Version.pdf
    336.8 KB · Views: 37

DomainNames

Top Contributor
At the SGM, I asked Mr Leptos (in as many words) How did 955 Supply Related Persons (as employees) come to be Demand Class Members under the auDA constitution. I have always maintained that 9.5 prohibits a Supply Related Person from qualifying for Demand Class Membership because 9.4 is very clear cut about who may qualify for Supply Class Membership.

In my opinion, Demand Class Membership was intended for Australian Non-Supply related persons. Accordingly, at the SGM Mr Leptos said, He would post my question on the auDA website along with advice received from Ashurst that he claims was used to approve these applicants.

Mr Leptos was given 7 days to respond to my question; unfortunately, the response I received indicated that it may take weeks before he responds? I wasn't happy about that response, given that Mr Leptos must have received or made his own determination about this matter prior to it been raised at the SGM, otherwise, how did 955 Supply Related employees get approved for Demand Class Membership.

Cheers, Scott
https://www.dntrade.com.au/attachme...upply_related_person_public_version-pdf.1167/
https://www.auda.org.au/about-auda/our-org/constitution/
  1. Does this make Joe Manariti and James Deck both invalid auDA Directors?
  2. Does this invalidate all of their previous auDA Board votes and their related auDA Membership votes?

"Case Study: Appendix B
James Deck and Joe Manariti
Supply Class Directors of auDA

Triad Problem

1. James Deck is a Director of 1300WebPro (A Supply Class Member)
2. Joe Manariti is a Director of SWiM Communications (A Supply Class Member)
3. AWIA is a Supply Related Entity (A supply Class Member)

As per the Definitions of the Company Constitution and 9.4 and 9.5 concomitantly, both James Deck and Joe Manariti are Supply Related Persons. Accordingly, both James Deck and Joe Manariti are Directors of Australian Web Industry Association (AWIA) a, Not for Profit Company with paying Members.

As per 9.4 of the Company Constitution – only One Supply related Person may Qualify for Supply Class Membership.

This means, AWIA does not qualify as a Supply or Demand Class Member of auDA, both Directors of AWIA are also Directors of their own Companies and Directors of auDA concurrently.

Members of AWIA that are Members of auDA also do not qualify for both Supply or Demand Class Membership unless; James Deck and Joe Manariti both resign as Directors of either auDA or AWIA; If James and Joe resign from these Directorships then, AWIA as a Supply Related Person can qualify for Supply Class Membership.

In this regard, the Members of AWIA also do not qualify under 9.4 for Supply Class Membership, and Members of AWIA do not qualify under 9.5 for Demand Class Membership unless, AWIA formally revoke their reseller agreement with the Supply Related Entity.

Whilst James Deck and Joe Manariti remain as auDA Directors they would be required to resign as Directors of their own companies or resign as auDA Directors because they are both Directors of the Related entity AWIA regardless of AWIA remaining as a Supply Member of auDA."

"https://www.webindustry.org.au/about/committee/

AWIA Committee for 2018 – 2019
James Deck: Chair

James founded Clevvi (Formerly 1300 Web Pro) in 2004, he continues to help lead the team of a dozen across the Toowoomba and Gold Coast offices. James is a Director of auDA, the regulatory and policy body for the .au domain name space.

Joe Manariti: Vice-Chairperson www.swim.com.au

Director of SWiM Communications, a Digital Agency in Melbourne, since 1996. Joe has also sat on the board of auDA, the .au Domain Authority, since 2012. Joe is passionate about industry best practise in the digital world and also the development of young professionals within it. He is an expert project manager and veteran Digital Industry professional."
 
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snoopy

Top Contributor
This is where we are at right now in my opinion,

Regulatory capture is a form of government failure which occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating.[1] When regulatory capture occurs, the interests of firms or political groups are prioritized over the interests of the public, leading to a net loss for society. Government agencies suffering regulatory capture are called "captured agencies".

https://en.wikipedia.org/wiki/Regulatory_capture

Whilst the word "capture" had been used many times in the past regarding auDA, even going back 11 years it has now gone from from 5/10 levels to 9/10 levels.

What they were worried about 11years ago.....

Screen Shot 2018-08-08 at 2.32.08 pm.png
 

DomainNames

Top Contributor
I see Supply Class Director Grant Wiltshire's previous life as a Demand Class Director has been erased on https://www.auda.org.au/about-auda/our-org/board/

Oops.

They seem to be erasing a lot? Why ?

Missing info on the defunct auDA CRC now?

Will they release the audio and all information, slides, chats, powerpoint of this weeks auDA CMWG open public forum?

https://www.auda.org.au/index.php/policies/panels-and-committees/

https://www.itwire.com/strategy/83762-auda-panel-moves-to-delete-record-of-past-meetings.html
https://www.righttoknow.org.au/request/au_domain_administration_ltd_boa

 
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Drop.com.au

Top Contributor
I struggled with these rules for a few years and I don't "like" the way it has been explained to me but perhaps it will help others to hear how it was explained to me.
1) Supply class membership is restricted to one employee within a group of related supply entities.
2) Demand Class membership is open to any legal person who is not eligible for Supply Class.
3) The definition of Supply Related Person in the constitution applies only to Demand Class Directors not Demand Class Members.

So using the rules above
When the new registry operator arrived on our shores late last year and became a supplier of services any one of their staff where theoretically eligible to become Supply Class members and none of their staff at that point where eligible to be Demand Class Members. As soon as one of their staff became a supply class member then all the other staff members are no longer eligible to be Supply Class members (rule 1) which makes them eligible to be Demand Class members (rule 2) with a very specific restriction (rule 3) in place which prevents them from becoming directors. There are no constitutional rules around citizenship, they only have to be a "legal person".

Going further you will find that if you have signed any reseller agreements then one person within your company or group of entities is eligible to the a Supply Member and NONE of your staff (or you) are eligible to be Demand Members until one of you has become a Supply Class Member. Once one of you is a supply member then the rest of you can become demand members BUT you cannot become demand class directors unless you cancel your reseller agreements in which case you are no longer a "supply related person" and you are eligible to be a demand class director.

Note: I am not a lawyer so perhaps the above could be challenged in court but short of anyone actually doing anything this is how the constitution is being interpreted and how it has been explained to me.

- Anthony
 

DomainNames

Top Contributor
I struggled with these rules for a few years and I don't "like" the way it has been explained to me but perhaps it will help others to hear how it was explained to me.
1) Supply class membership is restricted to one employee within a group of related supply entities.
2) Demand Class membership is open to any legal person who is not eligible for Supply Class.
3) The definition of Supply Related Person in the constitution applies only to Demand Class Directors not Demand Class Members.

So using the rules above
When the new registry operator arrived on our shores late last year and became a supplier of services any one of their staff where theoretically eligible to become Supply Class members and none of their staff at that point where eligible to be Demand Class Members. As soon as one of their staff became a supply class member then all the other staff members are no longer eligible to be Supply Class members (rule 1) which makes them eligible to be Demand Class members (rule 2) with a very specific restriction (rule 3) in place which prevents them from becoming directors. There are no constitutional rules around citizenship, they only have to be a "legal person".

Going further you will find that if you have signed any reseller agreements then one person within your company or group of entities is eligible to the a Supply Member and NONE of your staff (or you) are eligible to be Demand Members until one of you has become a Supply Class Member. Once one of you is a supply member then the rest of you can become demand members BUT you cannot become demand class directors unless you cancel your reseller agreements in which case you are no longer a "supply related person" and you are eligible to be a demand class director.

Note: I am not a lawyer so perhaps the above could be challenged in court but short of anyone actually doing anything this is how the constitution is being interpreted and how it has been explained to me.

- Anthony

Good info and opinion.

Give Scott Long a call.. he was Chair of the auDA Constitution Reform Committee and seems to make a lot of valid points. auDA obviously thought he was qualified before.

It seems odd Chris Leptos stated at the SGM that Scott was to write to auDA and then Chris assured him he would put Scott's letter on the auDA website. When will we see it on the auDA website?

I think a few weeks delay in response to Scott is brushing him off on a very serious issue which will not be going away.

My concern is what we will see is more auDA public and behind the scenes PR Spin...A few press releases, member releases and maybe even some smear attacks.....

Maybe they will try and remove Scott and others via their ongoing planned member removal methods? Mute and Shoot the Messengers, SGM "FOR" voters, Whistleblowers, Stakeholders, Bloggers, dntrade members, who know too much...
https://www.domainer.com.au/auda-seeks-to-enforce-their-code-of-conduct-coc/
 

Cheyne

Top Contributor
Hi Scott,

You cannot take definitions and apply them to sections of the constitution where it has not explicitly called for that definition. If you were able to do that then there would be no point having definitions in legal documents.

The term "Supply Related Person" is defined and is used twice in the Constitution. Once in the definition, and once under 18.3 regarding Director memberships. That's it. You cannot extrapolate that any further.

Now let me break down the other part for you, which is 9.4 and 9.5.
9.4 Qualification for Supply Class Membership
Any Legal Person that is a Registry Operator, an auDA accredited Registrar, or a reseller appointed by an auDA accredited Registrar, in the .au name space, or an association whose membership comprises a majority of such Legal Persons, qualifies to be a Supply Class Member.

If a group of related entities (as defined in the Corporations Act) consists of more than one Legal Person who qualifies for Supply Class membership, then only one such Legal Person within the group may apply to be a Supply Class Member.
At no point in 9.4 does it state a "Supply Related Person", therefore it does not apply.

So from this, the questions you need to ask are:
  1. Are any of them a Registry Operator? No.
  2. Are any of them an auDA Accredited Registrar? No.
  3. Are any of them a reseller appointed by an auDA Accredited Registrar? No (at least not as far as I know, but I doubt it).
  4. Are they part of an association? No.
Therefore, 9.5 now applies, which means they qualify for Demand Class.

Also, take a look at the member register. There are probably a dozen people who hold memberships on both supply and demand side. Why are you not attacking those people? I know the answer, but I am making a point.

And let's not gloss over the fact that it was revealed at the SGM that an elected Demand Director was found to be an active reseller, therefore, making him a Supply Member. If that had been the other way around you would all be going postal! Oh wait, you did exactly that when you incorrectly thought Angelo was going to become a Demand Director.

What you are all proving is why the Constitution is broken and that it needs to be fixed as soon as possible, in line with the Government recommendations. And now it will be, without interference and delays caused by a few trying to push an agenda that does not align with the broader community.
 

Scott.L

Top Contributor
I struggled with these rules for a few years and I don't "like" the way it has been explained to me but perhaps it will help others to hear how it was explained to me.
1) Supply class membership is restricted to one employee within a group of related supply entities.
2) Demand Class membership is open to any legal person who is not eligible for Supply Class.
3) The definition of Supply Related Person in the constitution applies only to Demand Class Directors not Demand Class Members.

So using the rules above
When the new registry operator arrived on our shores late last year and became a supplier of services any one of their staff where theoretically eligible to become Supply Class members and none of their staff at that point where eligible to be Demand Class Members. As soon as one of their staff became a supply class member then all the other staff members are no longer eligible to be Supply Class members (rule 1) which makes them eligible to be Demand Class members (rule 2) with a very specific restriction (rule 3) in place which prevents them from becoming directors. There are no constitutional rules around citizenship, they only have to be a "legal person".

Going further you will find that if you have signed any reseller agreements then one person within your company or group of entities is eligible to the a Supply Member and NONE of your staff (or you) are eligible to be Demand Members until one of you has become a Supply Class Member. Once one of you is a supply member then the rest of you can become demand members BUT you cannot become demand class directors unless you cancel your reseller agreements in which case you are no longer a "supply related person" and you are eligible to be a demand class director.

Note: I am not a lawyer so perhaps the above could be challenged in court but short of anyone actually doing anything this is how the constitution is being interpreted and how it has been explained to me.

- Anthony

Hi Anthony,

I get it, (your meaning), and your opinion is important, so let me clarify further;

Just because One Legal Person qualifies under 9.4 does not mean those rejected under 9.4 qualify under 9.5

The Purpose of Supply and Demand Classes was about dividing industry participants involved in the Supply of Domain registration products (Registry, Registrar, Re-sellers) from all other industries (Registrants). Otherwise, its a logical absurdity – for what purpose does Demand Class Membership exist if not for Registrants (Non-Supply Related Persons).

9.5 (the Purpose)
Any Legal Person that does not qualify for Supply Class membership may apply for Demand Class Membership.
  • All Employees of Supply Related Entities qualify for Supply Class Membership under 9.4 but 9.4 limits only One from a “group of related entities” to apply for Supply Class Membership. (That was the Purpose)
Who is a Legal Person that Qualifies as a Supply Related Person?
A natural person, is a Legal Person, is an employee, or officer, or related entity of:
· i. a Registry Operator;
· ii. an auDA accredited Registrar; or
· iii. a reseller appointed by an auDA accredited Registrar in the .au name space.


The Purpose was to stop stacking the Demand Class Membership with Supply Related Persons.
 

Scott.L

Top Contributor
Hi Scott,

You cannot take definitions and apply them to sections of the constitution where it has not explicitly called for that definition. If you were able to do that then there would be no point having definitions in legal documents.

The term "Supply Related Person" is defined and is used twice in the Constitution. Once in the definition, and once under 18.3 regarding Director memberships. That's it. You cannot extrapolate that any further.

Now let me break down the other part for you, which is 9.4 and 9.5.

At no point in 9.4 does it state a "Supply Related Person", therefore it does not apply.

So from this, the questions you need to ask are:
  1. Are any of them a Registry Operator? No.
  2. Are any of them an auDA Accredited Registrar? No.
  3. Are any of them a reseller appointed by an auDA Accredited Registrar? No (at least not as far as I know, but I doubt it).
  4. Are they part of an association? No.
Therefore, 9.5 now applies, which means they qualify for Demand Class.

Also, take a look at the member register. There are probably a dozen people who hold memberships on both supply and demand side. Why are you not attacking those people? I know the answer, but I am making a point.

And let's not gloss over the fact that it was revealed at the SGM that an elected Demand Director was found to be an active reseller, therefore, making him a Supply Member. If that had been the other way around you would all be going postal! Oh wait, you did exactly that when you incorrectly thought Angelo was going to become a Demand Director.

What you are all proving is why the Constitution is broken and that it needs to be fixed as soon as possible, in line with the Government recommendations. And now it will be, without interference and delays caused by a few trying to push an agenda that does not align with the broader community.

Ok Cheyne,

if 18.3 is your only argument then explain why was Tim not seated on the Board with the other Directors?

Tim is a "Sole Trader" a sole trader has no separate Legal Entity to direct; therefore, the title ‘Director’ or ‘CEO’ are not valid titles for sole traders. Likewise, a sole trader is the business, the business is the sole trader. Owner, Manager, Proprietor, these are all valid. However, CEO / Director / Employee / Related entity are not as they are ‘Officeholder Positions’ for a company structure.

As the business owner, you're not considered an 'employee' of the business. You should pay yourself, which is usually a distribution of your profit, but this is not considered 'wages' for tax purposes.
See here:

18.3 Director's Membership Requirements
Directors need not be Members.

The Director elected by the Demand Class Members must not, at all relevant times, be a Supply Related Person.


Is Tim a Supply Related Person under 18.3?


The document as a whole. The purpose of 2 distinct classes is obvious, twisting 3 words within 9.5 by people scared of an EOI has caused the problems we are having today, Not because the Constitution is Broken.

A Supply Related Person is a Legal Person, is an Employee, Officer, Related Entity. As per Definition within the Company Constitution;

"Supply Related Person" means a person that:

a.qualifies for Supply Class membership; or
b. is an employee or officer or related entity (as those terms are defined in the Corporations Act) of:

i. a Registry Operator;
ii. an auDA accredited Registrar; or
iii. a reseller appointed by an auDA accredited Registrar in the .au name space.
 
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Cheyne

Top Contributor
I think you are getting yourself a little confused Scott.

I don't care about Tim's position. What happened there is in the past and it no longer matters since he resigned. From what he said at the SGM it was an honest mistake, people make them, and that's where it ends for me.

Section 9.4 is crystal clear as to who it applies to. The staff of registrars do not qualify as supply, therefore they are demand. The term Supply Related Person has no legal bearing here because it cannot be introduced unless you can change the wording of the constitution through a special resolution as has been done in the past.

Think of me as the enemy all you will, but I am just trying to save you from wasting your time and effort when you could be using that energy to run your business and make more sales.
 

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