Interview with Ray Hadley on sex therapy and the NDIS

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Ray Hadley:
The Australian Newspaper’s Yoni Bashan has a story of a federal government proposal to stop people with a disability from claiming sex services using the National Disability Insurance Scheme, has been directed by state and territory ministers who say it is an overreach and inconsistent with the scheme's core purpose. Well, that’s a surprise. The NDIS Minister federally, Stuart Robert, will press ahead with introducing legislation and amendments to Parliament this year, after a court ruled sex services were not excluded under law from being taxpayer-funded through the NDIS.

Now, it all revolved around a woman in her 40s according to the judgment, who was declined the funding in 2017 and I think most people would understand why, on the basis 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. Now, they’re a rather obscure body that makes some rather obscure decisions. The Federal Court later upheld this judgment and found the act did not expressly exclude such activities from being funded. Prior to illness the respondent had an active sex life but have medical conditions, such as the prospect of a sexual release of any kind, without assistance is highly unlikely it said. I don't think that was the intention of the NDIS and I don't think that the minister responsible, Stuart Robert, thinks it was either. He's on the line from our Canberra studio. Minister, Good morning.

Minister Robert:
Ray, good to talk to you, never thought you and I be talking about prostitutes.

Ray Hadley:
No, not in these terms.

Look, the NDIS, most of us think about, you know, people with disability and particularly children who are disadvantaged greatly disadvantaged and their families are therefor also disadvantaged and we want to help those people because they're the most vulnerable you can get. But I wouldn't have thought in any legislation that was framed it would have extended to sexual services for people with funding from the NDIS. The other thing I don't quite understand these. It says here that you didn't get any support from state and territory ministers does that mean all of them Labor, Liberal, they said you are wrong about this.

Minister Robert:
You're spot on Ray we all want to take care of Australians with disability and the NDIS is a fabulous national endeavour, but the legislation is silent when it defines reasonable and necessary so the Federal Court has said, therefore, most things are permissible including paying for prostitutes. Now the Commonwealth has never paid for prostitutes, it has never used taxpayers money and nor have the states and territories. So I've asked the states and territories to join with me because the law requires unanimity across the Commonwealth in the states and territories, for us to say that prostitutes will not be paid for by taxpayers money. Participants are welcome to avail themselves of anything that is lawful and they can pay for themselves. But of course, Andrew Barr has written to me personally, the ACT Chief Minister, and said no, no, prostitutes should be included and the other states and territories have all been silent. So I simply say to the states and territories, on principle, the Commonwealth objects to this, because I can't get agreement I'm forced to legislate, and if the states and territories wish to fund prostitutes, they can pay for it themselves.

Ray Hadley:
So are you telling me Brad Hazzard has not answered you either in the negative, or the affirmative that he hasn't come back to you the New South Wales Health Minister, a conservative Health Minister?

Minister Robert:
Well the New South Wales disability minister is Minister Ward [interrupted]

Ray Hadley:
Wait hang on, hang on, hang on. Gareth Ward.

Minister Robert:
Yes, Gareth Ward is the responsible minister. So I've asked all the ministers to let me know when they have ever paid for prostitutes before when they are running state and territory schemes and of course, none of them responded to me. They've all written to me to say we need to consult far more and we can't reach a decision, and the ACT has said no, we must find prostitutes. So I can't get unanimity the states and territories won't stump up. So the Commonwealth will now make a principled decision because we don't believe that taxpayer’s funds should be used for prostitution services. And by the way, an estimate I have on the cost if this goes forward starts at half a billion per annum.

Ray Hadley:
Well I'm hardly surprised Mr Ward hasn’t answered you given that in New York he had the services of a remedial massage, two of them, who apparently stole various belongings while they came to his room for remedial massage, I think in New York. The equivalent of the NDIS pay for that type of material either but anyway, I'm not surprised you haven't heard from Gareth Ward based on his, his own behaviour at varying times, which is a concern to everyone. When you say legislation, you'll then have to go to Parliament and hopefully get the cooperation of those in the crossbenches in the Senate as well.

Minister Robert:
That's right. So we'll… because the Federal Court has said that the law, ostensibly doesn't preclude and therefore it permits all activities in some respect, and they have therefore said that the provision of prostitution services is therefore allowed under the law. I will move to actually define what is reasonable and necessary so we can meet community standards, because I do not believe, Ray, that the federal government using taxpayer’s money to pay for prostitutes meets that standard, I just can't see it.

Ray Hadley:
Just in relation to what the Federal Court said, what's defined, I'm trying to think of other things, you know, beyond sexual services that the federal government would have to pay for. And for the life of me, I mean, unless it happened, I can't think of other things. But given that it's so open ended. God only knows what they're referring to

Minister Robert:
Correct. Because the Federal Court said that because that the act doesn't expressly exclude sexual activities from being considered, therefore, there's no legislative exclusion but that goes for everything. So I'm currently in the Administrative Appeals Tribunal right now, saying that I don't believe building a jetty for a participant who lives on a major river is reasonable and necessary even though one of their goals is to go kayaking, that I don't believe that that paying for Endota Spa is reasonably necessary when participants can pay for that and have their own income either from their employment or indeed from, from their disability support payments. So we have to draw rules about what is reasonably necessary because the community expects us to do that.

We'll spend $22 billion this financial year, Ray, which I think is great supporting over 420,000 Australians that need our support, but the nation expects us to spend it wisely.

Ray Hadley:
You see, I think you'd have to draft the legislation so broadly, that yeah, you couldn't specifically say we're not going to build a Wharf at the end of the riverbank so you can get into a kayak, I mean you'll just have to, 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.

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

Ray Hadley:
Without second guessing the Labor Party, outside, that'd be opposed to that legislation so then you'll need support of reasonable people in the upper house to get it through, I’d imagine.

Minister Robert:
Well I'm hoping that the Senators and Members here will be reasonable, I hope they'll understand that that no government has ever funded prostitution before that we can find in the history of the Commonwealth and we shouldn't be starting now. That states and territories, when they ran disability before it came to the NDIS, they never funded prostitutes. So I'm hoping the Parliament will be reasonable and, and I've got every expectation it will be.

Ray Hadley:
Well you better be careful Mr Ward doesn't try to slip in remedial massage into the legislation, I'll leave you with that thought. Thanks very much.

Minister Robert:
Ray, as always, good to talk to you.