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Third Party Access to Pilbara Railways (Outcome & subsequent events)
On 13 August 2010 applications for judicial review of the Australian Competition Tribunal's decisions of 30 June 2010 regarding the Hamersley and Robe services were lodged with the Federal Court of Australia by Fortescue, and an application for judicial review of the Tribunal's decision regarding the Robe Service was also lodged by Rio Tinto and associates. Persons seeking information relating to the Federal Court actions should refer to the Federal Court.
Broadly, the Tribunal affirmed Treasurer Wayne Swan's declarations of BHP Billiton's Goldsworthy Railway Service and Rio Tinto's Robe Railway Service (albeit for a shortened period of 10 years in the case of the Robe service), while setting aside Treasurer Swan's declaration of Rio Tinto's Hamersley Railway Service and affirming the then Treasurer Peter Costello's deemed decision not to declare BHP Billiton's Mt Newman Railway Service.
The decisions that were reviewed, and the Australian Competition Tribunal's decisions in respect of each of them were as follows.
The deemed decision of the Treasurer to decline the application by Fortescue Metals Group Ltd (FMG) for access to the Mt Newman Railway Service (owned and operated by BHP Billiton and related parties) – application: 13 June 2004; deemed decision: 23 May 2006; application for review: (File No. ACT 5 of 2006): 9 June 2006. On 30 June 2010 the Tribunal affirmed the Treasurer's deemed decision not to declare the service.
The decision by the Treasurer to declare the Goldsworthy Railway Service (owned and operated by BHP Billiton and related parties) for 20 years as sought by The Pilbara Infrastructure Pty Ltd (TPI) (a FMG subsidiary) – application: 16 November 2007; Treasurer’s declaration: 27 October 2008; application for review: (File No. ACT 5 of 2008): 14 November 2008. On 30 June 2010 the Tribunal affirmed the Treasurer's decision to declare the service for a period of 20 years commencing on 19 November 2008 and expiring on 19 November 2028.
The decision by the Treasurer to declare the Robe Railway Service (owned and operated by Rio Tinto and associated parties) for 20 years as sought by TPI – application: 18 January 2008; Treasurer’s declaration: 27 October 2008; application for review: (File No. ACT 3 of 2008): 13 November 2008. On 30 June 2010 the Tribunal varied the Treasurer's decision to declare the service for a period of 20 years, so that it be declared for a period of 10 years commencing on 19 November 2008 and expiring on 19 November 2018. On 13 August 2010 applications were lodged by Fortescue and Rio Tinto in the Federal Court to review this decision.
The decision by the Treasurer to declare the Hamersley Railway Service (owned and operated by Rio Tinto and associated parties) for 20 years as sought by TPI – application: 16 November 2007; Treasurer’s declaration: 27 October 2008; application for review:(File No. ACT 4 of 2008): 13 November 2008. On 30 June 2010 the Tribunal set aside the Treasurer's decision to declare the service. On 13 August 2010 an applications was lodged by Fortescue in the Federal Court to review this decision.
The public version of the Tribunal's statement of reasons (including the Tribunal's summary) is available for download below.