Applications for the certification of State or Territory access regimes are made to the Council by the responsible Minister of the State or Territory, usually the Premier or Chief Minister. The Council is then responsible for making a recommendation to the Commonwealth Minister as to whether the State or Territory access regime is effective.

In making a certification recommendation, the Council must consider the application against the principles in clauses 6(2) to 6(5) of the Competition Principles Agreement (CPA) (clause 6 principles), treating each clause 6 principle as a guideline rather than a binding rule. The Council must also have regard to the objects of Part IIIA set out in s 44AA of the CCA and must not consider any other matters (see generally s 44M of the CCA). The Commonwealth Minister in making his or her decision is subject to the same requirements as the Council in making its recommendation (see s 44N).

In December 2016, a successor to the CPA was announced. The new Intergovernmental Agreement on Competition and Productivity Enhancing Reforms (IGA) which contains amendments to the CPA, commenced on 9 December 2016 upon signature by the Commonwealth and four states and territories. As at the end of June 2018, however, Victoria, Queensland and South Australia had not signed the IGA.

The IGA (at Appendix C.1 of the Agreement) contains principles in relation to access to services provided by means of significant infrastructure facilities, including principles to be applied by the Council and the relevant Minister when making recommendations and decisions on applications for certification of the effectiveness of access regimes under Part IIIA of the CCA. However, given the IGA has not been agreed by Victoria, Queensland and South Australia, and that the clause 6 principles in the CPA have not been revoked, those principles will continue to have effect until the IGA has been signed by all signatories.

As is the case with declaration applications, the Council is required to make its certification recommendation to the Commonwealth Minister within 180 days from receipt of an application and the Minister must make and publish a decision within 60 days of receiving the Council’s recommendation. If the Commonwealth Minister does not make and publish his or her decision within 60 days, he or she is deemed to have made a decision in accord with the Council’s recommendation.

Following the amendments to the CCA in 2017, there is now a mechanism for revocation of a decision to certify an access regime. Under section 44NBA(1), the Council may on its own initiative, or must on application, consider whether to recommend that the Commonwealth Minister revoke the decision. The Council must consider whether it is satisfied that the regime no longer meets the clause 6 principles set out in the CPA because of substantial changes to the regime, and/or substantial amendments to the clause 6 principles. On receiving the Council’s recommendation, the Commonwealth Minister must assess whether he or she should revoke the decision, applying the same factors and matters as the Council. If a decision of the Commonwealth Minister is not made and published within 60 days, the Minister is deemed to have made and published a decision in accord with the Council’s recommendation.

The certification process is not an assessment of whether a State or Territory access regime is ‘optimal’. Nonetheless, it provides a high-level assurance that a State or Territory access regime that will apply to the exclusion of declaration reflects similar principles to the regime it displaces, and provides assurance that the clause 6 principles have been addressed.

State and territory governments undertook to ensure all existing and new regimes are certified as effective. In addition, under the Australian Energy Market Agreement, the Commonwealth and the states and territories agreed to take all reasonable measures to ensure that the regimes relating to gas and electricity infrastructure access are certified. The current certification status of State and Territory access regimes is set out in Table 2‑2 below.