In short:
NDIS Minister Bill Shorten will ban sex workers from being accessed using NDIS funding.
Disability advocates say it will put the choice of which people with a disability have sex in the hands of the government.
What’s next?
A Senate committee is scrutinising broader NDIS reforms, and has invited state premiers to weigh in.
Sex work will be banned from being funded through the National Disability Insurance Scheme under NDIS Minister Bill Shorten’s planned reforms, the minister has confirmed.
The decision to exclude sex work has prompted deep concern from the disability sector, who warn it will rob participants of free choice, and could be a sign of a broader tightening on what participants can access.
On Sunday, Mr Shorten told Sky News he intended to change the rules.
“We will rule it out, yeah, we will rule it out. It’s just not a sustainable proposition, it doesn’t pass the test, does it,” Mr Shorten said.
“The reality is I’ve got one or two examples I’m aware of that it’s ever happened, ever. So it’s not what’s happening in most of the scheme.”
Specialised sex services have been available through the NDIS since 2020 when the federal court ruled in a legal challenge that the National Disability Insurance Agency should approve those services where deemed reasonable and necessary.
The ruling was made in favour of a woman with multiple sclerosis who launched the challenge because there was no explicit exclusion of sex services being funded in the NDIS Act, nor in its rules.
Participants seeking to access sex workers through the NDIS must seek approval from the agency — which advocates say means in the cases it was used the agency must have determined it was reasonable and necessary.
People with Disability Australia president Marayke Jonkers said a ban would mean the government deciding who could have sex.
“While it’s not for every NDIS participant it has facilitated those supports for people to live an ordinary life, and sexual expression is part of an ordinary life and a human experience,” Ms Jonkers said.
“Changing this law would mean you’re now actually having the government choose whether some people with disability are having sex.
“Even within the disability community there are people who are like, ‘Yes I want to pay for that, or no I want that to be for love only,’ at least we respect each other’s right to choose, we don’t have a piece of legislation making that choice.”
Speaking at the National Press Club in 2021 Mr Shorten, then shadow disability minister, said he was not sure whether funding for sex workers was sustainable — but he criticised the Morrison government’s plan to ban sexual therapy as an NDIS service as a “stalking horse” to give the minister and the agency power to wind back other matters people could seek funding for.
NDIS sex work ban a ‘double standard’, say Greens
Greens disability spokesman Jordon Steele-John said NDIS participants already had difficulty accessing sex supports and felt shame when doing so.
He said when participants had explained why they needed funding through the NDIS for those services, it proved legitimate and within the rules of the scheme.
“It’s a bit of a double standard, really, the federal government is totally happy to provide public funds for sex-based supports such as Viagra and other types of medications that are available on prescription — as they should be — and there is a growing acceptance about the need to have open and honest conversations about sex and sexuality throughout the community,” Senator Steele-John said.
“And yet when it comes to disability and sexuality, it is framed often by people in positions of power it is framed as something that is salacious and taboo.”
Ms Jonkers also warned the ban could extend beyond sex work to include specialised sex aids for people with disability, or send a message that discouraged participants from seeking support.
She said disability groups “poured their hearts” into the government’s review of the NDIS, and the issue of funding sex work spoke to a wider question of what would be included or excluded as an NDIS support under the government’s proposed reforms to the program.
“That is actually deeply concerning to a lot of people in the community because for us as disabled people, we are the experts in our own lives,” Ms Jonkers said.
“A bureaucrat writing down ‘yes’ or ‘no’ to sex is one thing, but in the category of what’s going to be an allowed support, for example, is if you are allowed to use a robotic vacuum cleaner and mop if you have no arms — well, that would be much cheaper than the NDIS paying every week for a cleaner for the rest of their lives.
“The [NDIS] review actually recommends putting trust in disabled people … this seems to be heading in the opposite direction, by starting to legislate a specific list.”
Senator Steele-John said it was disappointing the government would seek “to make such private and intimate details of disabled people’s supports the subject of public debate” in an attempt to find support for its reforms to be passed through parliament.
Inquiry scrutinising NDIS reforms invites premiers to weigh in
The government is seeking to save billions of dollars in future NDIS spending it warns it could make the scheme too expensive to sustain.
A bill before parliament would strengthen government powers to decide what can be approved under the NDIS, introduce new intervention pathways for people with psychosocial disability and young children, and strengthen the NDIS watchdog’s ability to protect participants from rorting.
The Greens and Coalition voted to kick the bill off to committee for inquiry, delaying its passage by at least eight weeks, which Mr Shorten said on Sunday would cost the government another billion more than it would have otherwise.
“We want to straighten it up. This nation doesn’t have a billion dollars to waste in a cost of living crisis,” he said.
“This scheme was for the people who are the most disabled, the people in their families. It’s changing lives. It is sick making, it is oxygen stealing to delay this for two months.”
State premiers and territory chief ministers, who have publicly expressed concerns that the reforms would require the states to again pick up some disability services, have now been invited to speak before the Senate inquiry.
State leaders have been invited because under the NDIS reforms they would be given power to approve NDIS rules at National Cabinet.