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

The High Court of Australia considered appeals from decisions of the Australian Competition Tribunal concerning access undertakings given by Pilbara Infrastructure Pty Ltd (Pilbara Infrastructure) and Hamersley Iron Pty Ltd (Hamersley Iron) and Robe River Mining Co Pty Ltd (Robe River) in relation to rail infrastructure in the Pilbara region of Western Australia. The National Competition Council (NCC) had recommended that the Minister for Industry, Tourism and Resources (the Minister) not accept these undertakings, and the Minister had subsequently decided not to accept them. Pilbara Infrastructure, Hamersley Iron, and Robe River sought judicial review of the Minister's decisions.

The central legal issues before the High Court were whether the Minister's decisions not to accept the access undertakings were vitiated by errors of law, specifically concerning the proper construction and application of the relevant provisions of the *Competition Policy Reform Act 1995* (Cth) (the Act) and the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The court was required to determine whether the Minister had correctly understood and applied the criteria for accepting or rejecting an access undertaking, particularly in relation to whether the undertaking provided a reasonable framework for access and whether it was in the public interest.

The High Court, in a joint judgment, found that the Minister's decisions were affected by errors of law. The court held that the Minister had misinterpreted the statutory requirements for accepting an access undertaking, particularly the assessment of whether the undertaking provided a "reasonable framework" for access. The court clarified that the Minister's role was not to substitute his own view for that of the undertaking provider but to assess whether the undertaking itself met the statutory criteria. The court also found that the Minister had failed to properly consider the public interest limb of the assessment, which required a broader consideration of the benefits and detriments of accepting the undertaking. The principles applied included those relating to administrative law, statutory interpretation, and the specific provisions of the Act governing access undertakings.

The High Court allowed the appeals, quashed the Minister's decisions, and remitted the matters to the Minister for reconsideration according to law.