Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors; The National Competition Council v Hamersley Iron Pty Ltd & Ors; The National Competition Council v Robe River Mining Co Pty Ltd & Ors

The High Court of Australia considered appeals from decisions of the Australian Competition Tribunal concerning access undertakings given by Pilbara Infrastructure Pty Ltd and others (the appellants) and Hamersley Iron Pty Ltd and Robe River Mining Co Pty Ltd (the respondents). The dispute centred on whether the Tribunal had erred in approving access undertakings proposed by the respondents, which would have had the effect of exempting them from the application of Part IIIA of the *Competition and Consumer Act 2010* (Cth) (the Act) in relation to certain infrastructure. The National Competition Council was also a party to the proceedings, having made recommendations to the Minister regarding the undertakings.

The primary legal issues before the High Court were whether the Tribunal had correctly interpreted and applied the provisions of Part IIIA of the Act, particularly concerning the criteria for approving access undertakings, and whether the Tribunal had made any errors of law in its assessment of the undertakings. Specifically, the Court was asked to consider whether the Tribunal had properly addressed the public interest considerations and the object of Part IIIA, which is to promote competition in markets where a party has a significant degree of market power. The appellants argued that the Tribunal had failed to give adequate weight to the potential for increased competition that would arise from the infrastructure being declared a declared service.

The High Court, in a joint judgment, found that the Tribunal had erred in its approach to approving the access undertakings. The Court held that the Tribunal had not adequately considered the object of Part IIIA and the public interest in promoting competition. It was determined that the Tribunal had placed undue emphasis on the certainty provided by an undertaking, to the detriment of a proper assessment of whether the infrastructure should be declared. The Court reasoned that an access undertaking, while capable of providing certainty, must still satisfy the substantive requirements of Part IIIA, including the promotion of a long-term increase in competition. The Tribunal's approach was found to have misconstrued the statutory framework, leading to an incorrect conclusion that the undertakings were in the public interest.

Consequently, the High Court allowed the appeals, quashed the decisions of the Australian Competition Tribunal approving the access undertakings, and remitted the matters to the Tribunal for reconsideration according to law.