Re: [DNS] .au space proposal

Re: [DNS] .au space proposal

From: Patrick Corliss <patrick§quad.net.au>
Date: Fri, 24 Nov 2000 14:57:29 +1100
Hi Don

> secondly, in essence, that one person is too busy to do anything other than
> reject applications outside of a predetermined framework, so why bother
> because we could just as easily register a .org...

That wasn't really the point.  Robert Elz established the rules that he did
because he didn't want to see all the domain names being registered by
speculators.  It was his framework, he could have changed it anytime.

He was acting out of purely altrusistic motives and I'm sorry I gave you any
other impression.  Robert is not now responsible for .com.au policies but
Melbourne IT has accepted the role on the understanding that they would follow
the policy that Robert Elz established.  It says so on their website.  I also
said:

> Wasn't he silly? you might ask.  But it's like the gambling, the law or a
> game of monopoly -- you play by the rules or you don't play.

I don't see what's hard to understand.  Them's the rules.  And there's a
review going on right now to change them.  Each country has different rules
and Melbourne IT has absolutely got no alternative but to obey those
particular rules.

> I think I must be the one living on a different planet, because I thought
> Australian organisations had a right to market within the legal framework.

Sure, but not with a .com.au domain that's not derived from your name.

> Nobody has advised me that we were or are contravening any State or
> Federal laws, and even if I was so advised, obviously I would need to
> verify your credentials to make such a claim. Further that under
> Australian law the claim would still be subject to contest - unless
> anyone here is a sitting magistrate addressing this issue.

I think you're mixing up the two answers here.  In fact I don't entirely agree
with Richard Archer who wrote:

> IMHO (IANAL) you're not legally allowed to trade under the name
> "Coolah Telecentre" without registering the appropriate business
> name. The States and Territories each have a Business Names Act which
> is clear on this matter

It's perfectly true that you may not carry on a business under a *business
name* unless that name is registered under the relevant Act.  Apart from
government bodies, there is only one exception to that rule and that is a
personal name such as "Don Cameron" as it is considered that you were
registered with that name at birth.

For two years, I was an investigator with the former Corporate Affairs
Commission in NSW where, among other things, compliance with that law was
enforced.  At that time it was the Business Names Act 1961 (NSW).  This is now
the reponsibility of the NSW Dept of Fair Trading.

However, your NFP status may be a factor.  I'm not cognisant with your
particular status and suggest you seek legal advice.

You could also buy a copy of the Act and see for yourself.

> Running a web site with the domain name "coolahtelecentre.com.au"
> when this bears little resemblance to your trading name would
> potentially breach the business names act.

Doug Robb has a reference which suggests:

        "Quite simply, there is no requirement for a
        domain name to be registered as a business name."

If you are trading under the name "Coolah Telecentre" without a registered
business name then you are potentially in breach of the Act.  What constitutes
*trading* is a matter of fact, not law.  All of the circumstances need to be
taken into account.

However, it is certainly possible that the use of a website with the name
"coolahtelecentre.com.au" could be used as evidence.  The best definition of
*evidence* is anything that helps to prove or disprove an assertion.

> The acts require that a
> business registers the name under which they trade, and I can
> envisage the situation whereby operating a web site under a specific
> domain name could be construed as operating a business under that
> name.

That's certainly a possibility although I have never seen such a case.  In
fact my own experience with the Dept would be that they would first send out a
*compliance letter* advising of the alleged breach.  Should the situation not
be rectified, prosecution action, though not likely, could follow.

> Your option here is to begin trading under the name "Coolah
> Telecentre" by registering the appropriate business name.

I'd take that advice.  For $1 a week It's not really worth arguing about.

> Over my short period as a member of this list it has become blatantly
> obvious that the whole methodology behind the "rules" governing .au
> registration is based in inuendo, dubious interpretations of legal statutes,
> mostly in accord with what a few within the IT industry view as being "in
> the best interests" of all Australians and Australian businesses, and
> perhaps most significantly, subject to nothing more than an interpretation
> that a "few" have a right to dictate to the masses even though there is no
> legislative basis for doing this.

There's no *few*.  That's conspiracy theory.  I nominated for the both the
Names Policy panel and the Competition Policy panel.  Nobody knew me from a
bar of soap.  I was accepted for the latter on my credentials (which are
extensive) as evidenced in my application.

You could have easily done the same.

> It's a mighty tall pedestal, I just hope it doesn't fall over... though the
> cracks are fairly obvious.

You just don't get it.  Robert Elz was granted the rights many, many years ago
when the internet was still a baby.  His rights were unassailable.

Since then he has voluntarily handed over those rights to auDA and others who
have been established to act in the public interest.  Which is why the review
is being disseminated for public comment.  Anyone can make a submission.

Have another look at the auDA website especially the com.au Delegation
Authority letter from Robert Elz appointing auDA as the manager of com.au
(15/11/1999)

                http://www.auda.org.au/docs/letter-com.au.html

The whole process is being conducted with government scrutiny from bodies such

as the relevant Minister and the Australian Competion Commission.  There is
also new legislation on the subject being passed through the Senate.

Best regards
Patrick Corliss
Received on Fri Nov 24 2000 - 11:55:49 UTC

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