Author:	Liz Williams BA, MA PhD Candidate, Queensland University of Technology
Subjects:	Industry And State Australia Internet computer network law and legislation (Other articles) Internet domain names -- Law and legislation
Issue:	Volume 10, Number 2 (June 2003)
Category:	Refereed Articles

Contents:

• Introduction
• Background
• Scope and Definitions
• The Market Landscape
• Rafferty's Rules: Australia's rough consensus and running code
• Regulatory Models
• .auDA: Structure, Operation and Mandate
• Conclusions
• Bibliography
• Notes

Author’s Note: The initial ideas for this article were presented on 7 May 2002 at the Domain Names Systems and Internet Governance seminar hosted by the University of New South Wales Cyberspace Law and Policy Institute http://www.bakercyberlawcentre.org. The author was a member of the .au Domain Administration’s Competition Model Advisory Panel prior to her election to the Board of Directors for the .au Domain Administration during 2001-2002. She is the immediate past Deputy Chair of the Board. She is actively involved in the ICANN community and has worked on both corporate and not-for-profit projects in the field. In June 2003, she submitted her doctoral dissertation – The Globalisation of Regulation and its Impact on the Domain Name System: Domain Names and the New Regulatory Economy - to the Queensland University of Technology’s (QUT) Faculty of Information Technology. The views expressed here are not necessarily those of .auDA or the .auDA Board of Directors and are provided as part of broader doctoral research. The dissertation abstract and chapter outlines can be found at http://www.lizwilliams.net.

Introduction

1. This article sets out the development of Internet governance in Australia. It describes the history of the administration of the .au country code and the formation of the private sector not-for-profit regulatory organisation responsible for the ongoing management of .au. It also gives some commentary on particular aspects of the establishment of new models for managing the technical resources of the global DNS[1] in the context of national jurisdiction.

2. The individuals in these developments are important, especially where personalities, rather than processes, have governed many of the regulatory outcomes. Some time is spent examining the input of the classic Postel apostle, the Federal Government Minister and his views, the contribution of active consumer representatives and technical experts. Regulatory volunteers, from both the corporate and public sector, are well in evidence. They have played a critical role in developing consensus-driven policy now implemented by a not-for-profit regulatory organisation in a highly competitive market place.

3. One of the key developments in the implementation of new domain name registration policies has been the re-delegation of the control of the .au country code identifier. The specific international rules which govern the transfer of the management of country codes are controlled by the Internet Assigned Numbers Authority (IANA). Most important in the Australian context was that the re-delegation of the management of the .au happened at the same time as the ratification of .auDA as the appropriate organisation to manage domain name registration policy. In addition, .auDA was responsible for the development of policies that enabled the introduction of competition into the provision of registrar and registry services. As a consequence of the re-delegation of the .au code, .auDA was able to sign the first country code registry contract with ICANN.

4. There are direct parallels to developments that have occurred at the international level. The Australian process has been more disciplined, more time-bound and more capable of managing distractions than the experience of ICANN.

   Background

5. The work here is a case study of how complex and multifaceted DNS governance has become in a national context. The .au domain name space provides an illustration of the evolution of geographic[2] top level DNS governance at a critical point, at an international level, in the development of ICANN. The evolution of the .au domain name space is instructive in understanding the impact of hybridisation of regulation on a global scale.

6. This discussion is important because it demonstrates a considerable shift in thinking about a technical resource to a naming system which has a policy and political life outside of its technical function. In addition, whilst it is not discussed in detail here, intellectual property protection advocates (both owners of IP(r) and their lawyers) have done much to ensure that domain naming was included in the portfolio of IP(r) protection. As discussed in the broader research, domain names are another dimension of branding and trademarks, for which protection and preferential policy treatment have been hard fought. This fight has had substantial political and commercial implications beyond considerations of the technical capacity of the numbering system.

7. The historical context for consideration of the Australian approach to DNS governance recognises that "Jon Postel used the ISO3166 code ... based on a United Nations register o[f] ... 243 'recognized territories' and asked individuals or academic institutions to overtake the responsibility for the management of the ccTLD ... No governments have been involved in the definition of ccTLDs and the operations of the relevant registrars started without any legal foundations in the 'territories'.[3] Until the formal re-delegation of the .au space to .auDA in September 2001, University of Melbourne staff member Robert Elz[4] was the ICANN/IANA delegate. In 1996 the domain name management function for .com.au (which had outgrown Elz' capacity to manage as a volunteer) was transferred to MelbourneIT as part of an arrangement with the University of Melbourne.[5] Others, in cooperation with Elz, managed closed domains (closed in that only those within particular organisations could register names within the domain) such as .csiro[6] and .edu[7] and the open domain .id.au. Information on other closed 2LDs such as .asn.au, .gov.au and .org.au can be found on the .auDA website.[8]

8. By way of background, it is worthwhile to examine in more detail the process of re-delegation. The re-delegation of a country code is not a particularly special process nor necessarily an historic event. It is, in a technical sense, the change of contact details for the management of particular portions of Internet architecture, consistent with the development of mechanisms by Dr Jon Postel to share responsibility for the technical tasks of managing Internet architecture.

9. The case of .au is, however, slightly different as the re-delegation was a particularly lengthy and contested process conducted at a time when there was significant perceived commercial advantage to be gained through control of .au. In addition, it was the clear intention of the Federal Government to enable more robust management of the domain name industry through the structure of .auDA, rather than relying, as had been in the case in the past, on one individual for that service.

10. The process for re-delegation is set out in the IANA rules.[9] As an essentially technical function, the management of domain name registration policies and the technical control of root servers is a relatively straightforward task. In an uncontested re-delegation, the former delegate notifies IANA that the new delegate will take over responsibility for the domain. The situation becomes markedly different when the delegation of control is contested or, as in the case of other ccTLDs such as .nu, .la and .tv, where the control of the country code had very significant (often personal) commercial implications. According to anecdotal information from ICANN staff, re-delegations of country codes take up a disproportionate amount of ICANN/IANA staff time. The IANA reports of a variety of re-delegations bear that view out.[10]

11. The most immediate impact of the decision to re-delegate the responsibility for .au, after the earlier transfer to MelbourneIT, was to separate the registry function (performed by AusRegistry in the new competitive regime) and registrar functions (now performed by a variety of domain name registration businesses). This achieved two goals similar to those set for ICANN which were the introduction of competition into the provision of registrar services[11] and the opportunity to conduct an open and competitive tender process[12] for the management of the registry.

12. The evolution of the domain name market continues, in parallel with a regulatory experiment of open DNS governance at an international level. However, it is now possible to identify a set of factors that have enabled an orderly transition from a monopoly provided service, limited by a highly restrictive name registration policy and, more fundamentally, by uncertainty about policy rules and mechanisms for representation of community views. In contrast, there are now clear methods in place to resolve a wide range of potential disputes, for example, with respect to registrar conduct, to the activities of re-sellers, to anti-competitive conduct and the failure to meet suitable technical standards.

13. The domain name industry in Australia has become a test bed for the development of a hybrid regulatory model. This model includes industry, consumer groups, the broader public and more traditional regulatory agencies engaging in open governance. Active involvement from the Government and legal practitioners, an outspoken and technically savvy Internet community and an influential public have created an environment which recognises the way in which the DNS has, historically, been managed and which has moved the industry to a more predictable and objective regulatory footing.

14. Other country code administrators, such as those in the Pacific and members of the Asia Pacific Network Information Centre (APNIC) now look to Australia for guidance on sound practices to manage their domain name space. APNIC provides, amongst other things, technical assistance and advice to developing economies. In addition, Australia's approach to DNS governance has been closely observed by members of the Pacific Island Forum (PIF) members which includes, for example, .nu which has been the subject of a heavily contested re-delegation.

15. The broader research seeks to understand some thinking which frames the development of hybrid regulatory models. The equations of sovereignty versus stewardship; ownership versus trusteeship; national governments versus international governance and the commercial versus non-commercial use of Internet resources are as relevant in the Australian context as they are internationally. Balancing these equations, in the context of DNS governance, remains a challenge to orderly and technically sound management of critical network resources which enable the Internet to function effectively.

16. Extra impetus was given to domestic developments by external pressure from ICANN to sign its ccTLD contract and to achieve the re-delegation of the .au domain. At the same time, ICANN was trying to sign agreements with new open gTLDs such as .biz, .info, .name and .pro and new closed gTLDs such as .coop, .museum and .aero. This "signing up" process is discussed later in the chapter. It was seen as a way to bolster ICANN's legitimacy and mandate to manage the DNS on an international basis.

17. This article also includes some objective measures of success of the transition to a private sector regulatory solution. These include policy development procedures that are inclusive, open and highly sophisticated methods of achieving consensus (or at least tolerant acceptance of reasonable market constraints). Licensing and tendering processes are open and, in terms of the number and quality of participants, highly competitive. The total number of active market players has increased dramatically and, perhaps the best measure of all, prices for domain names for end-users have plummeted.[13]

    Scope and Definitions

18. On the NOIE website, a domain name as defined "... a means of identifying and locating an organisation or other entity on the Internet. Domain names ... are a scarce resource which need to be managed to ensure the efficient allocation of web addresses".[14] The definition recognised, consistent with international practices, that a domain name is hierarchical and often conveys information about the type of entity using the domain. Domain names at the same level of a particular hierarchy must be unique; for example there can only be one 'smiths.com.au' domain within the .com.au space.

19. The Australian domain name industry includes entities engaged in the provision of domain name registration services such registry operators, registrars and their resellers, and dispute resolution providers. The prohibition of a secondary resale market for .au domain names means that, in contrast to some other countries, the Australian industry does not feature domain name auction and domain name valuation businesses.

20. Understanding what domain names are and why they are important to individuals and businesses is critical to placing the discussion here in a realistic, usable context. Discussion in the broader research identified that domain names are critical as navigation tools on the Internet, critical to brand identification and critical to the utility of Internet resources. In addition, domain names have an intrinsic navigation value. Without a domain name, finding resources on the Internet is highly problematic and relies upon remembering the base IP address as a number string rather than the more memorable name it matches. Even though it is possible to find Internet based resources such as websites for businesses without a domain name, domain names make it a much easier and more intuitive task.

21. As a product or service, the registration of domain names as a business in itself is attractive enough, in the Australian context alone, for eighteen companies[15] to offer registrar services. This does not include over 1,000, or more, resellers who act on behalf of registrars to sell domain name registrations.

22. In Australia, as in most other countries where Internet access is cheap and almost universal, domain names have also become part of the lexicon and roadmap of everyday life. One increasingly hears reference to a website (the domain name) in addition to a phone number. The appearance of domain names on the sides of buses, in media advertisements and in correspondence is now so frequent as to be unremarkable. Most major Australian corporations have domain names and use their websites to provide information to the public, to sell goods and services or to advertise a physical presence.

23. There is little in the academic literature about the development of DNS governance in Australia. There have been press articles about the delegation of the .au country code and particularly about the transition from Elz[16] to .auDA. There is much about intellectual property disputes or who has the right to use a domain name; much about privacy, censorship and the use of on-line information; and much about network security but a paucity of scholarly writing about DNS policy and its implementation in Australia.

24. This article is a contribution to analysis of the .au regime from a policy and regulatory perspective. It examines the development of policy for the management of the Australian country code, the legislative basis for that management and the practical co-regulatory approach now in operation. It briefly examines the way in which those three aspects parallel international practices for self-regulatory models in general and with ICANN[17] principles in particular.

25. The industry has, over the last five years, experienced immense change. Those changes include a technology boom and subsequent bust, a change in personalities and focus, a commoditisation of domain names[18] the normalisation of online demographics and a contraction of speculative online activity which absorbed enormous amounts of venture capital but delivered little profit. At the same time the need for new Internet addresses exploded as various common devices, including mobile phones, household appliances and motor vehicles can be connected to the Internet.

    The Market Landscape

26. It is important to frame the market context of the Internet in Australia. Again, we focus here on the usage of the underlying technical resources that enable the broader Internet to function effectively. O'Donnell's[19] work on mapping money flows around the Internet is useful but his definition of the Internet is limited to the application and network providers such as ISPs and backbone suppliers.

27. More useful here is an understanding of the money and influence flows around the domain name industry itself and the impact that the regulation of the network layer has on the way in which the industry operates commercially.

28. Internationally, the market context for this academic work is framed by the domain name industry's rapid maturity through the 1990s and the broader dot com boom which drove share prices for online companies to stratospheric heights before a sustained crash in late 1999 and through 2000.[20]

29. Domestically, there was a significant push towards making the .au space more commercial in its operation and more transparent in its regulatory management. During this time, the .au management was re-delegated to the Australian Government[21] endorsed self-regulatory body, .auDA.[22] The policy and political significance of the re-delegation of the .au country code is also found here. The most recent statistics for the .au registry are provided below. They give a snapshot of how many .au names are registered, in which parts of the domain. The auDA generic names auction is also a useful benchmark of both the popularity and utility of domain names in the .au space.[23] Quoting .auDA's 1 October 2002 press release on generic names, "1,612 generic names were allocated, either to a single eligible applicant or at auction. The highest price paid for a generic name was $153,000 for flowers.com.au. The median auction price was $2,900. Most names were allocated for the minimum reserve price of $100. The process raised approximately $2,611,000 in total ...".

30. In very bald and unscientific terms, one could read these windfall figures as equating to approximately 10% of the total cost of current .au registrations. This assumes that there are approximately 300,000 names in the .au registry and that registrars charge approximately $100 for a two year registration.

31. Broader statistics on Internet usage and penetration can be found in a variety of sources.[24] Most notable is that the Australian DNRI is itself developing rapidly, This follows the international trend where domain name registrations have become very price sensitive, commodity items. The use of the Internet as an information resource, as a mechanism for making consumer purchases and as a branding tool has grown significantly in the last five years, in spite of the significant economic downturn. This means that the development of mechanisms to properly manage and regulate the underlying network resources has moved from the realm of a desirable public policy objective to a critical infrastructure question which must be addressed in a sophisticated and robust manner.

32. The Internet in Australia is approaching the ubiquity and importance of the telephone. The sophistication of telecommunications regulation compared to that of the governance of Internet architecture illustrates significant progress has been made but that Australia still has some way to go.

33. Historic Australian Network Information Centre (AUNIC) data can be found at http://www.aunic.net/changes.html. As an indication of growth in the .au space, in 2001 there were approximately 257,000 names in the registry. That equates to 229,339 in .com.au, 17,383 in .org.au and 7,841 in .net.au. The most up to date figures for .au can now be found at http://www.ausregistry.com.au/reports/index.php. 2003 figures show that there 316,526 names in the registry which is distributed as 283,574 in .com.au, 11,498 in .org.au and 16,508 in .net.au.[25]

    Rafferty's Rules: Australia's rough consensus and running code[26]

34. The disarray and disappointment of previous attempts at self-regulation[27] restrictive domain name registration policies and the demand from the competition regulator that yet another monopoly be broken, have resulted in a structure which, it could be argued, is heading in the right direction.

35. Prior to the introduction of competition in the domain name registration industry, domain names could only be registered by Robert Elz and then, in the case of .com.au, by MelbourneIT. As in any monopoly, prices remained high and services to end-users relatively limited. The drop in prices for domain names and the vast variety of other services now available such as web-hosting and ISP services are indicative of some of the impact of competition in this industry sector not dissimilar to that experienced in the telecommunications industry.

36. Indicators of regulatory success by .auDA include the respect of those subject to regulation, that the industry participates actively in regulatory decision making and tolerates the outcomes. Elz made much of the necessity for support from the diverse Internet community (which was never properly defined) and, in the transition phase, argued that .auDA did not have the support of that group. The construction of effective measures to incorporate the views of the broader user/consumer community is a positive sign illustrated by the development and successful operation of a number of .auDA policy panels which are constituted from a wide range of interest groups. More broadly, compliance with legislative requirements such as the Corporations Law and the Trade Practices Act is now apparently accepted. Perhaps less well defined is a commitment to the principles of openness and transparency of decision making which have guided Internet governance at an international level and which are intrinsic to the way in which ICANN is meant to operate. Whether those two principles actually make for better decisions, more efficient governance and more effective management remains moot.

37. Prior to the formation of .auDA and the formalisation of self-regulatory structures with clear rules and objectives, there was little formal governance of the DNS in Australia. That is not to say that there wasn't a clear commitment by knowledgeable and very enthusiastic volunteers to the work of ensuring that Australia's part of the Internet architecture worked effectively.[28] As mentioned above, Robert Elz was the delegate responsible for the IANA[29] functions in Australia and worked with others on what became AARNet, linking universities and research bodies.

38. Elz' trusteeship of the DNS for .au space, in particular his development and administration of policy for .au domain name registration, was not the result of appointment by the Commonwealth Government or by Australia's (then) monopoly telecommunications carrier. Instead, as in other countries, responsibility reflected the delegation from one wizard[30] to another in a network managed by a small group of engineers, often with close personal links, but with no commercial interests in what they were doing.

39. A comprehensive public policy framework does not underpin delegation of the management of country codes. Indeed, ccTLD delegation predates by several years the publication of the key Request for Comment (RFC) on ccTLD delegations[31]. Equally important, given the shape of the early Internet, is that regulatory arrangements such as delegations were not reflected in a publicly available suite of policy statements, such as rules about .au name allocation and resolution of disagreements with the trustee.[32]

40. Uptake of the Internet by Australian government agencies, businesses, educational institutions, other organisations and individuals placed significant pressure on Elz and those volunteers to whom he had delegated responsibility for other 2LDs. That pressure was quantitative (handling ever-increasing numbers of registration requests) and qualitative (responding to criticisms about delays in processing requests for registrations or the perceived absence of comprehensive policy statements attuned to commercial realities as the dot com boom gathered pace). Both the pressure and the criticism were reflected in increasing attention from the Commonwealth Government and from business and community groups such as the Internet Industry Association (IIA) and the Internet Society's Australian chapter (ISOC-AU).[33]

41. During the early development of new regulatory arrangements, there is great opportunity for personalities (either individual or corporate) to exert enormous influence over the regulatory agenda. This has certainly been the case in Australia. Until the processes for objective regulatory management are in place, there is an influence transition or drift from one system to the next. Australia and the .au space are now at a point where the objective criteria for full range of regulatory functions are established.

42. During the Elz years, however, arrangements were made on a "rough consensus and running code" basis that meant very little to those outside the technical community within research institutions. This phenomenon is not particularly noteworthy, in a negative sense, as it reflected the situation of the general management of the technical functions of Internet architecture until the early 1990s when the possibility for the commercialisation of Internet resources became a reality.

43. At the ICANN level, delegations for the management of country codes take up much of the resources of ICANN/IANA. Delegation arrangements are a major source of angst as it is perceived, in many quarters, that the management of the country code is a source of national honour, cash and control of a national asset.[34]

44. In Australia's case, ICANN was motivated to provide as much assistance as possible to resolve the issue because, in part, it needed to have the country codes inside the ICANN "tent". Australia was the first country code administrator to sign a contract with ICANN under the country code arrangements. In turn, Australia required the support of ICANN/IANA to break the deadlock between Elz and the Commonwealth to formally transfer the management of .au to the formally recognised .auDA organisation.

45. The Minister of Communications, Information Technology and the Arts[35] is responsible for the direction of DNS policy in Australia. The Minister retains the right, under the 2000 amendment to the 1997 Telecommunications Act to effect regulatory arrangements for DNS management.

46. Even though Australia's Internet governance arrangements are, internationally, with ICANN under Californian contract law, the Commonwealth clearly maintains arm's length authority over the .au space. That the Commonwealth has devolved that authority to .auDA is evidence that the shift from government bureaucracy to a private sector model is now well underway.

47. I have set out here a very brief history of the management of the DNS in Australia. It focuses particularly on the way in which it has been managed as a technical resource rather than what it has been used for or how it has driven many other policy decisions such as the development of on-line content regulation, e-commerce standards or prohibitions on on-line gambling. The Internet in Australia mirrors the way in which the Internet evolved in the USA. That AARNET developed the way in which it did is testimony to the impact of personalities on Internet governance. Those personalities have now been brought into a more institutional-like setting.

    Regulatory Models

48. The work of Sassen, Braithwaite & Drahos and Arup has been particularly helpful in providing literature to support the discussion of the shift to a private sector, self-regulatory model for Internet governance in Australia.

49. Börzel & Risse-Kappen have compiled diagrammatic representations of the 'realm of governance' which can be usefully employed to illustrate where the .auDA model sits (Börzel & Risse-Kappen 2001: 3,9). The diagram reproduced here would have .auDA sitting near to the top right hand corner. In their analysis, they argue that "private self-regulation is often triggered by the very lack of effective international norms and rules".

     

    The Realm of Public-Private Partnerships[36]                                                                                                             Public regulation                                                                                            no involvement of private actors                                                                                        Lobbying of public actors by private                                                                                      actors                                                                                                                                                                  Consultation and Cooptation of private actors                                                                       (e.g. private actors as members                                                                       of state delegation)                                                                       participation of private actors in negotiating                                                                       systems   Co-Regulation of public and private actors (e.g. private actors as negotiation partners) joint decision-making of public and private actors   Delegation to private actors (e.g. standard-setting) participation of public actors                                 Private self-regulation                               in the shadow of hierarchy                               (e.g. voluntary agreements)                               involvement of public actors                      Public Adoption of private                    Regulation                    output control by public actors   Private self-regulation (Purely private regimes) no public involvement     <-- increasing autonomy of private actors  | increasing autonomy of public actors -->

50. It is helpful to divert quickly into more general discussions of regulatory models. The spectrum ranges from completely public sector government bureaucracies to completely private sector arrangements with no intervention from governments. .auDA, like its international equivalent ICANN, is a regulatory hybrid that approximates the co-regulatory model one finds in the Australian telecommunications, financial services or food standards industries. In the DNS case, the Minister, in effect, retains the right to re-delegate responsibility for the management of the .au domain name space. Now that the arrangements for this model have settled, it is unlikely this power would be used. However, in the early stages of the implementation of .auDA much concern was expressed about the conditions under which the Minister could withdraw his support.

51. The appointment of the two Independent Directors to .auDA, one of whom was appointed Chairman of the Board[37] contributed greatly to a rapid increase in industry confidence that the organisation could indeed deliver on its mandate. There had been an undercurrent of dissatisfaction, most regularly expressed on the e-mail DNS list.[38] The list is not moderated and provides an open forum for comment on any DNS management issue in Australia. At its best, it is a mechanism for hearing end-user views and facilitating the transparency of .auDA's operations in a practical, timely and responsible way. At its worst, it has been a repository of personal invective, captured by a vocal minority who repeat their often unsubstantiated views loudly and often.

52. One measure of effectiveness of the current arrangements could be that the Board, since the appointment of the current Chief Executive Officer and Chairman, has been very stable. There have been no attempts to spill the Board or to force resignations. There has not been a major turnover of Directors and most have sought second and sometimes third terms. At a Board level there is strong degree of cohesiveness and cooperation whilst also taking very serious account of the work of the Policy Panels. It is interesting to note that the same situation exists at an international level within ICANN.[39]

53. The process for the withdrawal of Ministerial support for .auDA would require, under the legislation, the co-operation of both the ACA and the ACCC.[40] However, it is now unlikely that either regulatory agency would exercise their power under the legislation. This is particularly the case whilst .auDA continues to develop new polices for future second level domains, prepares to review its mandatory Registrar's Code of Practice and continues to actively involve a broad range of interest groups in both its structure and decision making processes.

    .auDA: Structure, Operation and Mandate

54. With an understanding of the broader research, a sense of the historical position, some knowledge of market statistics and some discussion of regulatory models, we can now turn to a more detailed examination of the operations of .auDA. .auDA is a small organisation managed by a Chief Executive Officer, a Policy Officer and administrative staff. It is funded by contributions from members, registrar fees ($11 per domain name registration), registry fees and, most recently, by off-budget windfalls from the sale of generic domain names. It does not receive funding from government.

55. It operates under the Corporations Law and is managed by a Board of Directors (currently 13) eleven of whom are elected by .auDA's members[41] and two of whom are appointed as Independent Directors.[42]

56. A range of formal working parties has assisted policy development. Members of those parties serve on a voluntary basis. As such, the cost of regulation has been successfully transferred from government to those subject to the regulation in a similar way, for example, to the work of the Australian Communications Industry Forum (ACIF) which develops codes of practice for the telecommunications sector. Membership of .auDA's policy panels is representative of the broader community with skills in information technology and engineering, telecommunications policy, intellectual property protection and consumer advocacy. The Registrar's Code of Practice is a case in point.[43]

57. The activity of the working parties is publicised by .auDA through public forums and the online membership list. The working parties typically seek community submissions, for example, on appropriate competition models or names policy. Exposure drafts are released after regular physical meetings of the panels. These are refined after further public consultation and input. The documentation is made public on the .auDA website and remains posted.[44] The use of working parties and policy panels reflects a commitment to consensus policymaking and inclusiveness. It also ensures that policy development is delivered from the community to .auDA. This achieves three objectives. It obviates the need for a large secretariat, it pushes the cost of regulation to the private sector and it ensures comprehensive compliance. .auDA's legitimacy has not been successfully contested.[45]

58. As outlined above, .auDA is supported by Commonwealth legislation but its operation is independent of government agencies. It is well recognised by ICANN staff and by the various ICANN constituencies in which Australians are active. Its authority ultimately rests on its ongoing effectiveness as a ccTLD manager which is demonstrated by the development of codes of practice, consensus-based policy and the input of a range of stakeholders. Objective management of the views of all stakeholders is critical. This objectivity is borne out in a policy environment which actively seeks to facilitate competition, which bolsters a robust internet services industry at both the registrar and reseller level. Operational objectivity is closely matched to international standards especially with respect to public consultation and consensus-driven policy and including a broader range of talents and skills including legal, policy, regulatory and commercial experience.

59. As a result, the regulatory load of DNS governance in Australia is spread across representatives from peak associations, registrars, the technical community and individual members. Regulatory capture is difficult to achieve and clearer business rules mean that investment decisions can be made in a relatively stable economic environment.

    Conclusions

60. If the DNS had remained a pure technical numbering resource, it is unlikely that the discussion of Internet governance would have created any traction in political and policy circles. The numbering system has been subsumed by discussions of naming policy and domain name usage rights. This is termed IP versus IP(r) elsewhere in the research and applies equally in Australia as it does internationally. The control of the naming system is a critical policy discussion. It is critical at the infrastructure layer; critical to users who rely on Internet resources for their businesses; critical to the consumer advocacy community as they discuss equitable access to the Internet and critical to those who wish to protect their brands and trademarks. The tension between the political camps is obvious. With commercial importance comes the discussion of policy and then the enactment of mechanisms to govern fairly to distribute commercial advantage equitably.

61. The evolution of the .au regulatory space continues in both a domestic and international context. The most significant changes forecast for the .au space are a review of existing policies and the introduction of new second level domains. The latter is being considered during 2003 by a newly constituted policy panel.

62. The .auDA has reached a level of maturity which makes it unlikely that the Minister would find any justification for the forced re-delegation of authority from .auDA to any other organisation. The legislative and regulatory basis for the management of the .au DNS is stable with a small, solid administrative body running the policy functions and regulatory arm of the .au domain.

63. The paradigm shift is, with some hindsight, obvious. Significant regulatory changes have been produced by economic conditions in a technology boom, comprehensive broadband rollout which facilitates efficient Internet access, a highly educated and demanding set of consumers coupled with active government engagement across the spectrum of domestic and international policy debates. Considering these changes in the broader context of the globalisation of regulation and the development of a new regulatory economy, it is clear that the Australian experience will do much to inform the development of hybrid regulatory structures to manage DNS governance in other countries.

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