Mary Fisher (SA, Liberal Party) Share this | Hansard source

I will take the liberty of answering Senator McEwen’s question. The minister needs this legislation passed because without it he will not get a deal with Telstra and without a deal with Telstra the NBN is naught.

Minister, your attempted definition of wholesale versus retail seems to rely wholly and solely upon the nature of the product or service passed from one party to another without any regard to the nature or activities of the party or entity who supplies those services. Surely it is a combination of the two and surely, if there were to be more than a 50 per cent balance in one or the other, it would be in the nature of and activities of the entity, organisation or party which supplies those goods or services. To have a relationship you need at least two parties. You are essentially envisaging a scenario where you have only two parties—an NBN Co. and then a consumer who you are attempting to say obviates any place for a retailer in the relationship.

But let us compare this scenario with, for example, spare parts for a motor car. We could have a manufacturer of those spare parts who then supplies those spare parts to the next party. According to your definition, the manufacturer would be a wholesaler simply by virtue of passing on spare parts. However, if you have a manufacturer who supplies those spare parts to a second party, who then supplies those same spare parts with nothing done to them to a third party who then supplies those same spare parts to a fourth party who consumes those spare parts by putting them in a motor vehicle and driving away, that surely has to be this sort of scenario where at the very beginning you have a wholesaler and at the very end you have a consumer. Maybe the second step, but certainly the third and fourth steps, have to be retailers of a sort because they have passed on that good to another party who ultimately consumed that good. Surely that is more the test of wholesale versus retail in the relationship of the parties in the supply chain to one another in the context of what then happened to the good or service itself. I put to you, Minister, that it is simplistic for you to attempt to constrain a wholesale-retail relationship simply by saying, ‘The legislation defines it as such; therefore it is,’ particularly if what it is in the legislation turns on its head a common understanding in the everyday marketplace and also probably what has been the subject of case law over many years.

So, Minister, please give us an example of an analogous scenario which has a body not unlike an NBN Co. as a wholesaler supplying a service to another body, and where that body or person who then takes that good or service somehow must be a retailer—because NBN Co. in this analogy is not; in your world, NBN Co. is a retailer. Give us an analogy in the commercial world where your definition of wholesaler and retailer works.