Application for certification of the South Australian water infrastructure access regime

On 11 November 2016 the National Competition Council received an application under section 44M of the Competition and Consumer Act 2010 (CCA) from the Premier of South Australia, the Hon Jay Weatherill MP, for certification of the South Australian third-party access regime for water infrastructure services (Regime). Certification is sought for specified bulk water transport pipelines operated by SA Water set out in Part 9A of the Water Industry Act 2012 (SA).

If a state access regime is certified, that regime will govern regulation of access to the specified services and those services cannot be declared under Part IIIA of the CCA or subject to an access undertaking to the ACCC.

A copy of the application and the relevant legislation is available under the Application tab to the left. The Council invited interested parties to make written submissions on the application by 19 December 2016. The Council did not receive any submissions. The Council will shortly publish a draft recommendation, and interested parties will have an opportunity to make submissions on it.

The Regime was established on 1 July 2016 by the insertion of Part 9A in the Water Industry Act 2012 (SA). The services covered by the Regime are set out in the Water Industry (Third Party Access) Proclamation 2016.

In essence, the Regime establishes a negotiate-arbitrate framework for access seekers. It requires SA Water to provide specific information to access seekers, on a non-discriminatory basis, to help them formulate an access proposal. If the parties cannot agree on the terms and conditions of access, a party may refer the dispute to the Essential Services Commission of South Australia (ESCOSA) who will seek to resolve the dispute by conciliation. If the dispute is not resolved by conciliation, ESCOSA may refer it to independent arbitration.

The Council in deciding whether to certify a regime as ‘effective’ will consider the principles set out in the Competition Principles Agreement and the objects of Part IIIA of the CCA. After considering submissions and other relevant information, the Council will release a draft recommendation. The Council will provide an opportunity for public comment on the draft recommendation before making its final recommendation to the Commonwealth Minister. Generally speaking, the Council must provide its final recommendation to the Commonwealth Minister within 180 days of receiving the application.

The Commonwealth Minister, who is responsible for deciding whether the Regime meets the requirements for certification, is the Treasurer, the Hon Scott Morrison MP. At the time the Commonwealth Minister publishes his decision, the Council’s final recommendation will also be published. Both documents will be made available on the Council’s website.

If you would like to be kept informed of developments with the application, please download and complete the Registration of Interest form below and email it to sawatercertification@ncc.gov.au.

Registration of Interest (RTF, 306KB)