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Certification of state and territory access regimes

An application for certification of a State or Territory access regime is made to the Council by the responsible Minister of the relevant 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.

When the Council makes 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 2020, 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has not been agreed by Victoria, Queensland and South Australia, and that the clause 6 principles in the CPA have not been revoked, those principles will continue to have effect until the IGA has been signed by all signatories.

Similar to 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 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. When the Commonwealth Minister receives the Council’s recommendation, the Minister must assess whether he or she should revoke the decision, applying the same factors and matters as the Council. If the Commonwealth Minister does not make and publish a decision 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.

The current certification status of State and Territory access regimes is set out in Table 2‑2 below.

Table 2-2 State and Territory Access Regimes

State/Territory

Access regimes

Certification status

ACT

Electricity networks (NEM[1])

Not certified

Gas pipeline networks (NGL[2])

Not certified

NSW

Water infrastructure (Water Industry Competition Act 2006 (NSW))

Certified in respect of access to water infrastructure services in the areas listed in Schedule 1 of the Act (namely the areas of operation of Sydney Water Corporation and Hunter Water Corporation) for a period of 10 years from 13 August 2019

Intrastate railways (New South Wales Rail Access Undertaking, Transport Administration Act 1988 (NSW))

Not certified (previous certification expired on 31 December 2000)

Electricity networks (NEM)

Not certified

Gas pipeline networks (NGL)

Not certified

NT

Electricity networks (Electricity Networks (Third Party Access) Act (NT))

Not certified (previous certification expired on March 2017)

Gas pipeline networks (NGL)

Not certified (previous certification expired on October 2016)

Port of Darwin (Ports Management Act 2015 and Ports Management Regulations 2015 (NT))

Not certified

Tarcoola-Darwin railway (AustralAsia Railway (Third Party Access) Act (NT and SA)

Certified for from March 2000 to 31 December 2030

Queensland

Dalrymple Bay Coal Terminal (Queensland Competition Authority Act 1997 (QLD) (QCA Act))

Certified for 10 years from 11 July 2011

Central Queensland Coal Railway Network and other railways operated by Queensland Rail (QCA Act)

Certified for 10 years from 19 January 2011

Electricity networks (NEM)

Not certified

Gas pipeline networks (NGL)

Not certified

SA

Specified bulk water transport pipelines operated by SA Water set out in Part 9A of the Water Industry Act 2012 (SA).

Intrastate railway infrastructure - (Railways (Operations and Access) Act 1997 (SA))

Certified for 10 years from 22 May 2017

Certified for 10 years from 26 July 2011

South Australian Ports (Maritime Services (Access) Act 2000 (SA))

Certified for 10 years from 9 May 2011

Electricity networks (NEM)

Not certified

Gas pipeline networks (NGL)

Not certified

Tasmania

Electricity networks (NEM)

Not certified

Gas pipeline networks (NGL)

Not certified

Victoria

Electricity networks (NEM)

Not certified

Gas pipeline networks (NGL)

Not certified

Intrastate railways (Rail Management Act 1996 (Vic))

Not certified

Shipping channels in Port Phillip Bay (Port Management Act 1995 (Vic))

Not certified

WA

Certain intrastate railways (Railways (Access) Act 1998 (WA) and the Railways (Access) Code 2000)

Not certified (previous certification expired on 10 February 2016)

Electricity Network Services (Electricity Industry Act 2004 (WA), Electricity Networks Access Code 2004 (WA))[3]

Certified for 15 years from 17 July 2005

Gas pipeline networks (NGL[4])

Not certified

[1] NEM indicates membership of the National Electricity Market scheme incorporating electricity network regulation under the National Electricity Law (National Electricity (South Australia) Act 1996) and mirror legislation in other jurisdictions.

[2] NGL indicates access regulation under the National Gas Law (National Gas (South Australia) Act 2008) and mirror application Acts in other jurisdictions.

[3] This regime applies to the South West Interconnected System.

[4] The National Gas Access (WA) Act 2009 applies the NGL and National Gas Rules in Western Australia except that the relevant regulator is the Economic Regulation Authority of Western Australia rather than the Australian Energy Regulator.