Third Party Access to Pilbara Railways (Outcome & subsequent events)
Following the Council's recommendations and the Treasurers' decisions regarding the Mt Newman, Goldsworthy, Hamersley and Robe Railway services in the Pilbara, the Treasurers' four decisions were subject to reviews by the Australian Competition Tribunal. Two of the Competition Tribunal's decisions were then the subject of appeals to the Full Court of the Federal Court and further appeals to the High Court. The High Court remitted the Hamersley and Robe River decisions back to the Tribunal to be re-determined. In doing so, the Tribunal set aside both the Hamersley declaration and the Robe River declaration, leaving on the services provided by the Goldsworthy railway declared.
Tribunal (on remittal)
On 8 February 2013, the Tribunal delivered its determinations on the Hamersley and Robe River declarations, remitted back to it by the High Court.
The Tribunal set aside both the Hamersley and Robe River declarations. The Tribunal considered that it did not have sufficient material before it to be satisfied that it would be uneconomical for anyone to develop an alternative facility to provide either the service provided by the Robe railway or the service provided by the Hamersley railway (i.e. criterion (b)). In reaching this conclusion, the President of the Tribunal declined to seek further information and assistance from the Council under s 44K(6) of the Competition and Consumer Act 2010.
Following the Tribunal's decision on remittal, the status of the four Pilbara iron ore railways the subject of applications for declaration is:
- The Mt Newman Railway Service, owned and operated by BHP Billiton and related parties (BHP), is not declared.
- The Goldsworthy Railway Service, owned and operated by BHP, is declared for a 20 year period expiring on 19 November 2028.
- The Hamersley Railway Service, owned and operated by Rio Tinto Ltd and associated parties, is not declared.
- The Robe Railway Service, owned and operated by Rio Tinto, is not declared.
On 14 September 2012 the High Court delivered its judgement on the two appeals brought by Fortescue Metals Group Limited/The Pilbara Infrastructure Pty Ltd (FMG) from the May 2011 decision of the Full Federal Court concerning the rail services provided by Rio Tinto's Robe and Hamersley railways. The High Court found that the Competition Tribunal did not act according to law when it heard the applications for review of the Minister's decisions declaring both the Robe and Hamersley railway services, the outcome of which was that the Tribunal overturned the Hamersley declaration and the Robe declaration reduced from 20 years to a period of 10 years. Accordingly, the High Court has remitted the Robe and Hamersley matters back to the Competition Tribunal for determination.
The High Court also made findings on declaration criteria (b) and (f) and the matter of any residual discretion for the decision maker. The High Court determined that:
- the words "uneconomical for anyone to develop another facility to provide the service" found in ss 44H(4)(b) and 44G(2)(b) of the Competition and Consumer Act 2010 require an inquiry whether there is anyone who could profitably develop an alternative facility. Further, the enquiry as to who "anyone" may be includes existing and possible future market participants;
- an enquiry by the Tribunal into the public interest matters required by s 44H(4)(f) will be framed by the findings of the decision making Minister, as it is a reconsideration of what the Minister decided, whether the Minister was satisfied of criterion (f) or not. It is not expected that the Tribunal in reconsidering the Minister's decision would lightly depart from the Minister's conclusions. The High Court further noted that the range of matters encompassed in the public interest enquiry may be very wide; and
- where the decision maker is satisfied of all five criteria for declaration in s 44H(4) of the Competition and Consumer Act 2010, there is no residual discretion available to the Minister or the Competition Tribunal on review to decide not to declare the service(s) in question.
The decision of the High Court is available for download below.
Full Court of the Federal Court of Australia
The Full Court of the Federal Court's 4 May 2011 decision concerned appeals by Rio Tinto and others and FMG from decisions of the Competition Tribunal relating to two of the four applications for access to Pilbara iron ore railways. Rio Tinto appealed from the Tribunal's decision to declare the Robe railway service, and FMG appealed from the Tribunal's decisions (a) not to declare the Hamersley railway service, and (b) to reduce the declaration period of the Robe railway service from 20 to 10 years. The Court upheld Rio Tinto's appeal and dismissed FMG's appeals. As a result of the decision, the 10 year declaration of Rio Tinto's Robe railway service was set aside.
The Full Court's judgment is available for download below.
Available for download below are: (a) the public version of the Tribunal's statement of reasons (including the Tribunal's summary) (30 June 2010), (b) the judgment of the Full Court of the Federal Court in the appeals from the Tribunal's decisions (4 May 2011), (c) the decision of the High Court (14 September 2012) and (d) the Tribunal's determination on the remitted Hamersley and Robe River railway matters (8 February 2013).