Ministers reject NDIS sex services ban plan

A federal government proposal to stop people with a disability from claiming sex services using the ­NDIS has been rejected by state and territory ministers.

NDIS Minister Stuart Robert Picture: Gary Ramage

A federal government proposal to stop people with a disability from claiming sex services using the ­National Disability Insurance Scheme has been rejected by state and territory ministers, who say it is an overreach and inconsistent with the scheme’s core purpose.

NDIS Minister Stuart Robert will press ahead with introducing legislative amendments to parliament this year after a court ruled sex services were not excluded under law from being taxpayer funded through the NDIS.

The changes would amend the legislation to limit the meaning of the words “reasonable and necessary” services.

State and territory ministers were asked for their unanimous support to change the rules around NDIS funding in order to bring them into line with “community expectation”, an ideological position that some ministers have indicated they were unlikely to support.

Without unanimity, the federal government will be required to introduce a bill to parliament enacting the amendments, setting up a potential showdown with the opposition and crossbenches over the contentious issue.

The issue around the use of sex workers and coverage under the NDIS gained prominence last year when a federal court found that a woman with multiple sclerosis and a range of other serious medical conditions was legally entitled to receive funding for sex therapy services.

The woman, aged in her 40s, according to the judgment was declined the funding in 2017 on the basis that it was not a “reasonable and necessary support” as defined under the NDIS legislation. This was appealed to the Administrative Appeals Tribunal, which ruled in her favour. The Federal Court later upheld this judgment and found the Act did not “expressly exclude such activities from being funded supports”.

“Prior to her illnesses the respondent had an active sex life, but her medical conditions are such that the prospect for her of sexual release of any kind without assistance is highly unlikely,” it stated.

“In our opinion, it is clear the legislative scheme intends no such limits or exclusion, and no such hard lines to be drawn.”

Since the case was finalised, Mr Robert had remained determined to refine the definition of “reasonable and necessary” in order to effectively end the use of taxpayer funds for sex services, and also to clarify other “areas of confusion” within the legislation, an official said.

Replying to his letter, the ministers denied him unanimous approval by saying he should seek further consultation with the community, effectively snubbing the request.

ACT Disability Minister Emma Davidson flatly opposed the amendment and expressed her disapproval in separate correspondence with Mr Robert.

“These changes would not be in line with the fundamental principles of the NDIS — to enable people with (a) disability to live an ordinary life, with choice and control over their reasonable and necessary supports,” Ms Davidson told The Australian.

“The ACT government supports the human rights of people with disabilities to be the decision makers about their bodies and their lives.”

Mr Robert said the Morrison government was “taking steps to ensure the NDIS is being used for what it was intended”.

“NDIS participants can still freely use their own money, whether that is through government support or earned income, to spend on whatever they want. All we are saying is taxpayer NDIS funds were never intended to be used in this way and we’ll be ensuring this does not happen again.”