35.6. Assessment by the Australian Competition and Consumer Commission

When the rules and other documentation are received by the Commission, they will carry out an initial assessment (section 175(1) and reg 16.3).

6.1 The Commission must be satisfied that the attributes a person must have to become an approved certifier are sufficient to enable a person to assess competently whether goods and or services meet the certification requirements (section 175(2)(a))).

6.2 The Commission must also be satisfied that the rules would not be detrimental to the public and are satisfactory (section 175(2)(b)) having regard to:

• the principles relating to restrictive trade practices set out in Part IV of the Trade Practices Act 1974;
• the principles relating to unconscionable conduct set out in Part IVA of the Trade Practices Act 1974;
• the principles relating to unfair practices, product safety and product information set out in Part V of the Trade Practices Act 1974 (reg 16.6).

PLEASE NOTE: The Trade Practices Act 1974 became the Competition and Consumer Act 2010 (CCA) on 1 January 2011.

Principles relating to restrictive trade practices are set out in Part IV of the CCA. 

Principles relating to unconscionable conduct, unfair practices, product safety and product information are set out in Schedule 2 of the CCA.

​​​​​​​When considering whether or not the rules are detrimental to the public, the Commission considers the rules themselves and how effective they are in ensuring the specified standards are met.  It also considers broadly the effect the certification scheme is likely to have on the community.

6.3 The Commission has the power to require the applicant to make amendments or modifications to the rules (section 175(3)).

6.4 As soon as practicable after the initial assessment, the Commission must notify both the applicant and Registrar of the result (reg 16.3(2)). 

The Registrar must publish the initial assessment in accordance with the regulations.  The applicant, or any other person, may respond in writing to the Commission in relation to the initial assessment and may request the Commission, in writing, to hold a conference in relation to the initial assessment.  Such a response or request must be made within one month of the publication of the initial assessment (reg 16.3(2)).  

6.5 After holding a conference (if one is called) and considering any written submissions the Commission will make a final assessment. The Commission must take into account: the initial assessment, any relevant written submissions made in response to the notice or publication of the initial assessment, any comments made on those submissions, any oral submissions made at a conference if one is held, and any other relevant matter (reg 16.5).

6.6 If, after taking the above matters into account, the Commission is satisfied (see 5.1 and 5.2) the Commission will issue a certificate to the applicant and send a copy of the certificate and a certified copy of the rules to the Registrar (section 175(2)).

If the Commission is not satisfied they will not give a certificate. The Commission will notify both the applicant and the Registrar of their decision (section 175(4)(a)). The Commission’s decision will be published in accordance with the Regulations.

The refusal of the Commission to give a certificate may be appealed to the Administrative Review Tribunal (section 175(5)).

6.7 If the Commission refuses to give a certificate, the Registrar must reject the trade mark application (section 176(1)).

If the Commission issues a certificate the Registrar must accept the trade mark application provided the application has been made in accordance with the Act and there are no grounds for rejecting it (section 176(1)).

In both instances, the Registrar must notify the applicant of the decision and publish the decision (section 176(3)).

6.8 Once the rules have been certified by the Commission and the trade mark has been published as accepted the rules are published as certified on the IP Australia website.​​​​​​​