:format(webp))
Last week you might have noticed an attention-grabbing story that just about broke through the non-stop coronavirus media coverage. The Agency lost its Federal Court appeal against an Administrative Appeals Tribunal (AAT) decision that it was reasonable and necessary for a woman to receive NDIS funding for sex therapy.
At the time of the AAT ruling last year, the case was greeted with a media storm unlike anything NDIS stories are accustomed to seeing. While the decision received a lot of support, there were also some media outlets outraged at the idea of taxpayer pennies being used to fund anything connected to S-E-X. NDIS Minister Stuart Robert memorably said the decision was “not in line with community expectations of what are reasonable and necessary supports.” The fact that the majority of the community has probably never heard the term “reasonable and necessary supports” did not seem to matter. So, it was hardly a great shock when the Agency announced they would be appealing this decision to the Federal Court.
It is worth taking a moment here to acknowledge the massive personal toll this case must have had on the participant behind this case (whose identity has thankfully been suppressed for privacy reasons)- Talking about your sexual needs in front of a room full of lawyers and strangers? And then, just in case that wasn’t traumatic enough, doing it all over again for good measure? But by fighting this fight, she has set a precedent that other NDIS participants might be able to follow.
Okay, without further ado, let’s talk about sex! Or rather, let’s talk about lawyers talking about sex…
SEX WORK OR SEX THERAPY?
One of the Agency’s key objections to the AAT decision was that the Tribunal referred to the service the person was seeking as “sex therapy,” whereas the participant described it as “sex work.” The NDIA felt that it was not notified of this change of definition and consequently was not given the opportunity to respond accordingly.
But the Federal Court disagreed. They argued that while different words might have been used, both parties were clear about the nature of the service that was being provided. The Court also agreed with the AAT that this was a highly specialised service, which differs from how sex work might look in the wider community. In other words:
This position by the Court surprised me because I have read enough cases to know how much courts of law love semantics. But I guess everyone has their limits. At one point, the Court even described the Agency’s position as “pedantic.” I lived for that moment.
WHAT MAKES A SEX THERAPIST?
The Agency also made the argument that the sex worker/therapist relevant to this case could not be a sex therapist because they did not have the appropriate qualifications. We discussed this issue in an interview last year with Rog Butler from Curious Creatures, shortly after the AAT case was published. In Australia, you do not need any particular training or registration to describe yourself and work as a sex therapist, which can often make the task of forming a distinction between sex therapy and sex work more challenging.
The legal team for the participant did point out that in this instance, the employee had done specific training on working with people with disability. The NDIA was quick to retort that this was just a one-day training course- which even had a break for lunch (I mean, there are bigger crimes, but okay!). However, the Federal Court was not overly impressed by this line of argument. Their position was that this training, in combination with the person’s ongoing experience with the participant made them more than qualified for the job.
SEX TOYS
The Agency also contended that the AAT failed to consider sex toys as an alternative support.
The Court agreed with the AAT that sex toys were not an appropriate alternative in these circumstances. The Tribunal had divided its decision into two documents: one publicly available and the other private. The reasons that sex toys were not a suitable option were discussed in the private document, which makes sense because frankly that ain’t anyone else’s business.
POLITICS V. THE LAW
If you are reading the above and wondering what on earth this taxpayer-funded Agency was doing pursuing this line of argument, or even this case, the answer might be found in politics, not the law. Indeed, in a particularly pointed critique, the Court even suggested that the NDIA was motivated by “political” or “moral” considerations. In 2017, the Agency released a statement to the media saying “The NDIA does not cover sexual services, sexual therapy or sex workers in a participant's NDIS plan.” This media release was used as justification for refusing to fund sex work when the participant took the case to internal review.
The thing is, particular supports can be excluded from NDIS funding. These are listed in S5 (1) of the NDIS Supports for Participants Rules (2013). They include anything that might cause harm, is not related to the person’s disability or is a day-to-day living expense. But these Rules have to be approved by the Commonwealth and all the states and territories. Do you know how difficult it is to get that to happen? Much harder than getting something past the Agency’s media team.
The Federal Court also noted that the NDIA was reading the AAT’s judgement “with an eye attuned to the detection of error.” In other words, they were nitpicking. This case was not motivated by a true or significant different interpretation of reasonable and necessary. Instead, it born out of politics, morals, and a fear of negative headlines.
WHAT’S NEXT?
Get out your popcorn, because something tells me this conversation is not yet over. The McGarrigle Federal Court case around transport funding demonstrated how legal decisions do not necessarily result in the policy change in anything resembling a timely manner.
Undoubtedly, participants who are seeking NDIS funding for sex work or sex therapy are in a far better position than they were before this case went to hearing. But that does not mean that they will not have to fight for support. Which, like so many things in the NDIS, could lead to unequal outcomes.Especially between people able to take up an argument with the Agency, and those who cannot.
It is also possible that Minister Robert will try to get all the states and territories behind a legislative banning of NDIS funding for sex therapy or sex work. You would like to think the government had bigger priorities right about now, but you never know.
Those interested can find the full Federal Court decision here. It is a fascinating document. There are moments which are laugh out loud funny, paired with passages that actually manage to make sex boring. If you are interested in this topic, you might also like our series on sex and disability from last year.
