Let’s (Not) Talk About Sex

You might have noticed that, at DSC, we love talking about sex. But when the NDIS is your bread and butter, sex doesn’t always come up naturally in conversation—that is, until NDIS Minister Stuart Robert entered the picture with a series of TV and radio interviews talking about s-e-x (or, more specifically, sex work). However, summoning all the self-discipline we can muster, we have decided to abstain from any sex-related conversations for the time being, and here’s why.

Back up! Why on earth would you be talking about sex?

On 3 February, Robert went on a conservative talk-back radio show hosted by Ray Hadley to discuss the Federal Court decision that found it reasonable and necessary for a woman with MS to use NDIS funds for sex therapy. The ruling should have paved the way for more NDIS participants to receive funding for sexual services. In reality, this is still next to impossible. Despite the fact that there hasn’t exactly been a boom in the purchase of sexual services, Robert made it quite clear that he opposed the ruling and would seek to impose a ban on the purchase of sexual services with NDIS funds.

Legally, however, his hands are tied. Section 35 of the NDIS Act (section 34’s neglected younger sibling) does allow for the creation of legislative rules that prescribe supports that “will not be funded” by the NDIS, but the big catch is that the Commonwealth and all states and territories have to agree to it—and that’s just not something that often happens.

While the focus of Robert’s radio interview was the reluctance of the states and territories to create a legislative ban on NDIS-funded sex work, the minister also revealed his strategy for the upcoming legislative review of the Act. He has, in the past, signalled that he would like the legislation to go before parliament by mid-2021. Draft legislation has not been made public yet, so we don’t know what exactly Robert has planned. However, on Hadley’s show, the minister stated his intention to “give some boundaries” around what supports that the NDIS will fund.

As The Saturday’s Paper’s Rick Morton pointed out, this is the closest the government has come to admitting that it plans to redefine reasonable and necessary:

Robert's game plan

Let’s be clear about one thing: in the conversation about NDIS legislative reform, sex work is a red herring. Redrawing the lines of reasonable and necessary would impact every single decision on what the NDIS will or will not fund. But if the Minister successfully makes this a conversation about sex work, he might manage to get a whole host of legislative changes passed in the Senate. It’s quite a clever—albeit transparent—strategy, and it could work.

To explain, let’s deep dive into a game of what we in Australia like to call “democracy”. Changes to the NDIS Act need to be passed by both the House of Representatives and the Senate. The government controls the House, so there are unlikely to be roadblocks to legislative change there; however, the Senate is where things get interesting.

If Labour and the Greens stay firm in their opposition to Robert’s changes, then the fate of the NDIS Act will be decided by the Senate crossbench, that is, the Wild West of Australian politics. The crossbench consists of the following:

• Jacqui Lambie (one seat) – a Tasmanian senator who is one of the few surviving remnants of Clive Palmer’s brief debut into politics

• The Centre Alliance (one seat) – the former party of SA’s Nick Xenophon, the members of which—as the name suggests—tend to be centrists

• Rex Patrick (one seat) – a former member of the Centre Alliance

• Pauline Hanson’s One Nation (two seats)- you probably know One Nation.  

What is important here is that, although it’s pretty unpredictable, the Senate crossbench has a conservative leaning. It is unclear how any of the above senators would vote on Robert’s broader agenda for the NDIS Act, but it is a safe bet to assume that they would oppose NDIS funding for sex services. Moreover, we have to consider the fact that they will have a keen eye on how their votes appear to their electorates. The senators would (we hope) understand that the legislation is about more than sex work; however, if Robert successfully shapes the public narrative as being around sex work, they might be nervous about voting against the bill.

In summary: sex work is the Trojan horse that might usher wide-reaching NDIS changes through the Senate.

What's the worst that could happen?

It might seem a bit dramatic to get so worked up over a piece of legislation we haven’t even seen yet. While the draft could still surprise us, we do have a bit of an idea about what some of the big ticket items on the agenda might be. You can expect to see changes around the following:

Independent Assessments (IAs)

We don’t yet know how much of the NDIA’s planned rollout of IAs will require legislative approval. Nevertheless, we can be sure that the Agency will seek to improve the legal standing of IAs through the legislative review. Otherwise, Administrative Appeals Tribunal (AAT) and Federal Court cases could get pretty awkward for them from this point on.

Ministerial control on reasonable and necessary (s. 34)

Call me an optimist (you’d be the first), but I don’t actually think that Robert intends to alter section 34 per se. However, he and the NDIA have signalled a number of other changes that would basically mean that reasonable and necessary does not have the same standing that it does now.

Firstly, the planning policy proposed by the NDIA in its consultation papers shows an intention for IAs to be used to decide how much funding is put in a participant’s plan rather than a consideration of each support against section 34. Secondly, Robert’s radio discussion confirmed that he intends to change the legislation to allow the minister to ban supports without the need for state and territory approval. This has broader implications than a ban on sex work—it would also give any future minister the power to ban supports from the NDIS without much in the way of checks and balances, which is quite a frightening prospect.

Sex at a later date

The NDIS and sex work conversation is important and should in no way be swept under the rug. If you are interested in the topic, check out DSC’s series exploring sex and disability from 2019. We have had this conversation before, and we will have it again, but now is not the time (as much as we’d love it to be!).

Consider this: the Federal Court’s decision means that sex work as a reasonable and necessary support is now the legal status quo. If we can protect the legislation as it currently stands, we will also be standing up for people’s right to access this support.

No matter how sexy the bait is, we need to keep the conversation on reasonable and necessary and IAs because, over the next few months, literally everything will be at stake.