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The NDIS minister is pushing for states and territories to agree on a ban on sex therapy under the insurance scheme. Disability advocates fear Stuart Robert’s plans to increase federal control are a cost-cutting exercise at heart. By Rick Morton.

Redrafting the NDIS

The minister for the National Disability Insurance Scheme, Stuart Robert.
Credit: David Gray / Getty Images

NDIS Minister Stuart Robert has conceded that government efforts to rewrite legislation underpinning the $25 billion National Disability Insurance Scheme will be broad and aimed at keeping contested decisions about participants’ funding out of tribunals or the courts.

The National Disability Insurance Agency, which runs the scheme, is the worst-performing government agency in terms of decisions overturned at tribunal.

The Coalition is currently redrafting the NDIS Act to allow the introduction of “independent assessors”, who are third parties without direct knowledge of a participant’s case assigned to determine how much support funding they should receive.

The changes will also ban sex therapy in participant support packages, as Robert confirmed this week.

“On principle, the Commonwealth objects to this … if states and territories wish to fund prostitutes, they can pay for it themselves,” he told 2GB.

The structural changes are likely to give the NDIS minister almost unfettered power in shaping the disability scheme. Disability advocates fear the new legislation, which has not yet been released, will permanently change the way certain rules governing the scheme are made, removing state veto rights and making them the sole preserve of the Commonwealth minister.

Robert’s frank admissions about his future plans for the NDIS came during a 2GB radio interview on Wednesday.

Host Ray Hadley asked the minister if, to hand decision-making power back to the NDIS agency, legislation would need to be drafted “so broadly… it'll have to be a decision made by the NDIS on what's fair and reasonable as opposed to a court determining what is fair and reasonable”.

“That's right,” Robert responded. “And that's what the legislation will seek to do. It will seek to, say, give some boundaries, provide some sort of some guidance in terms of what is reasonable and necessary that way participants can plan, and the agency can make decisions knowing full well they are within the body of the law.”

The minister’s comments were at odds with a statement provided to The Saturday Paper by his office in December last year about the proposed reforms, which are in part being driven by government fears of cost overruns in the NDIS.

At the time, a spokesperson for Minister Robert told this newspaper, “It is not the case that what is considered 'reasonable and necessary' per tribunal and court precedent and seven or so years' experience of the NDIS will be rewritten under the proposed model and associated legislative changes.”

On Thursday, Robert’s office told The Saturday Paper it rejects any suggestion “that the minister has changed his position”.

A spokesman said the minister’s previous statement “clearly makes the point that decisions made by either tribunals or courts over the past seven years regarding what constitutes reasonable and necessary will not be retrospectively changed”.

However, the signal issue that’s animated Robert’s attempts to redesign the NDIS is purported to be an appeal by the Commonwealth that was rejected by the Federal Court of Australia in May 2020.

The government had sought to overturn a decision by the Administrative Appeals Tribunal, which agreed a woman with multiple sclerosis and other complex health and disability conditions ought to receive modest funding from the NDIS for sex therapy to fulfil her basic human right to touch and sexual release, which she is not capable of doing on her own because of her health issues.

The Federal Court upheld the lower court’s decision, ruling against the Commonwealth.

Stuart Robert told Ray Hadley that if the government does not change the NDIS legislation, the cost of allowing sex work as a funded support “starts at half a billion [dollars] per annum”.

The Federal Court’s judgement from May last year labelled Robert’s cost prediction “rather dramatic”, echoing the view of the AAT.

The AAT was unconvinced that allowing funding support for sex therapy in the case before them “might have an adverse financial impact on the sustainability of the NDIS as a whole”.

In his 2GB interview, Minister Robert declined to use the court’s specific terminology – the woman’s case featured a qualified sex therapist – and instead mentioned “prostitutes” 10 times.

“I never thought you and I would be talking about prostitutes,” the minister told Hadley. “No, not in these terms,” the radio host replied.

States and territories which, for the moment, retain some decision-making power over the NDIS, have pushed back against Robert’s proposition. They have asked for time to consult about the impact of banning sex therapy from the NDIS.

ACT Minister for Disability Emma Davidson told The Saturday Paper that the move to exclude sex therapists was policy by “moral judgement”, which may mask an even bigger threat to the scheme.

“The ACT government has concerns that the federal government wants to take away the right of people with disability to determine what they need in their lives. The proposed changes to the NDIS Act may signal future cuts to the scheme and the dismantling of the premise of choice,” she said.

“Once this change has been made, the [federal] minister will be able to use it for anything he likes, as a way of cutting costs for whatever he doesn’t want people with disabilities to access.”

This article was first published in the print edition of The Saturday Paper on Feb 5, 2021 as "Redrafting the NDIS".

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Rick Morton is The Saturday Paper’s senior reporter.