9th August 2021

To: Martin Hoffman NDIA CEO

Dear Mr Hoffman,

Re: Sex services and the NDIS

Who we are

Touching Base developed out of the need to assist people with disability and sex workers to connect with each other, focusing on access, discrimination, human rights, legal issues and attitudinal barriers. Touching Base has brought the disability sector and the sex industry together in respectful and meaningful ways, through education, policy development, and training workshops for disability workers and sex workers.

Background

We appreciate that to a degree you have inherited the current situation in relation to sex services being accepted as a reasonable and necessary support for some NDIS participants, We acknowledge that the moves towards a prohibitive approach was created and driven by previous Federal Ministers.

We would like to also acknowledge the shifts in directions which have occurred within the last month in relation to proposed changes to the NDIS Act and we would like to take advantage of the reset offered by yourself and the Federal Minister at the recent Where To From Here (WTFH) conference.

We need to bring to your attention that information put out by the NDIA to its staff and other stakeholders, whilst under your management, has significantly contributed to current problems we outline below.

Having previously been engaged in negotiations with the agency we are seeking to re-engage to bring about sensible movement ahead in this area.

Problems with inclusion of requested supports in plans

Misconstrued attempt to unlawfully prohibit sex services as an NDIA support

Successive Ministers, starting with Christian Porter, have tried to unilaterally, therefore unlawfully1, rule out the funding of sex services in participants plans. In the case of WRMF, it was made clear by the Federal Court that the Minister has never had the power to make such a decision. Any decision to rule out a specific support requires unanimous support of State and Territory Ministers through the Disability Reform Council.

After the WRMF decision was handed down Minister Roberts’ sought to get such a prohibition through the Disability Reform Council but his approach was rejected by State and Territory Ministers.

Then Minister Roberts’ proposed to have the NDIS Act changed to remove the requirement for unanimous decision making to rule out particular supports. We understand that this proposal was recently put forward to the Disability Reform Council by Minister Reynolds, and the resulting communique makes it clear that the proposal has been rejected, along with the planned Independent Assessments.

We have recently been reliably informed that a decison was made in 2012/13 at the Disability Reform Council supporting sex services as a funded support under the NDIS.

We are in the process of getting the Federal Minister to confirm the particulars of this prior decision!

\n\n1 …S.35(1)(b) of the Act, … enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimity agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act.” (at para 43, [7]), FEDERAL COURT OF AUSTRALIA, National Disability Insurance Agency v WRMF [2020] FCAFC 79

This is consistent with the public statement made by Senator Fiffield at the National

Press Club in 2013 when this issue was raised in a question from the ABC

"This issue has come up before. When the Senate was having public hearings
into the NDIS legislation, this particular proposition was put: would the sorts of
services that you mentioned qualify as reasonable and necessary?
I’m not going to, I guess, give an on-the-spot ruling, but what I will say is the
NDIS isn’t there to provide a range of things which individuals, whether they have
a disability or not, might seek to have as part of their life. It’s there to provide
supports so that they can do and achieve things which are made a little more
困难 because of the disability that they had.

I’ll leave the comments there. Partly because, you know, I don’t want to have a

theadline that says, you know, “Minister says x, y, z is in, shock horror”. So I’m going to leave it there because the essence of the NDIS is working on a plan for an individual. Is: what are the goals, what the plans, what are the objectives for an individual? And each plan will be different, each plan will be personalised, and I’ll leave it at that.“2

Is it time for the NDIA to accept reality - that every attempt to prohibit these supports being funded has failed, in the AAT, the Federal Court and the Disability Reform Council?

We call upon you as CEO to remove any arbitrary barriers that exist because of those failed attempts and create pathways to faciltate participants getting funded supports to access sex services, where it is reasonable and necessary to assist them to meet their goals.

2 The Hon. Mitch Fifield’s address to the National Press Club on the topic 'A Better Deal for Australians

With Disability’- Dec 2013.

Statements and information put out by NDIA and prior Ministers are creating a substantial and unlawful barrier

We refer you to the following extracts of an information paper published by the NDIA in

November 2020 3:

More guidance on the boundaries of the NDIS for…

Under this category, a new rule will make clear that NDIS funding is not to be

used to purchase the services of a sex worker or devices solely for sexual

stimulation (p.5)

When supports should be purchased using personal income or government income support…

NDIS funds are not intended to pay for goods and services that are not related to a participant’s disability and that people generally pay for out of their ordinary income or government income support that people generally pay for out of their ordinary income or government income support. For example:

rent (other than specialist disability accommodation)
groceries
clothing
utility fees.

The Government and the NDIA will provide detailed guidance around supports relating to ordinary living expenses or day-to-day living costs.

3 Information Paper Improving the National Disability Insurance Scheme - Better Participant Experience and Improved Access and Planning, Published: 24 November 2020 (Updated 1 December 2020 to refer to NDIA papers now released)

Page 5

clear that NDIS funds should not be used to purchase the services of a sex worker or devices solely intended for sexual stimulation and arousal. (p. 20)

We have heard repeated reports of participants having NDIS staff refuse to include sex services as a funded support within their plans, on the basis of the information paper referred to above, and/or high profile media statements made by Ministers around this issue.

We note that the proposed reforms have been set aside by Minister Reynolds. Please advise us what steps you will be taking to correct the misinformed view held by many NDIS staff (Call Centre Staff / Planners / Support Coordinators / LACs) and external planners, that the prohibition of funding of sex services is a fait accompli.

Other matters of concern

We would like an opportunity to discuss the following issues with you at your earliest convenience:

Problems with processing invoices and payments
Unauthorised changes to management of plans
Development of clear NDIS policy on sex and relationship

We would be pleased to arrange a video conference or phone call with your office. You can email Saul via

Yours sincerely

Saul Isbister President Rose Handley Committee Member

Page Text Start

10th August 2021

To: Senator, The Hon Linda Reynolds CSC\nMinister for the NDIS

deeply regretted.

Dear Minister,

Re: Sex Services and the NDIS

Who we are

Background

We appreciate that to a degree you have inherited the current situation, in relation to sex services being accepted as a reasonable and necessary support for some NDIS participants. We acknowledge that the moves towards a prohibitive approach were created and driven by previous Federal Ministers.

We would like to also acknowledge the shifts in directions which have occurred within the last month in relation to proposed changes to the NDIS Act and we would like to take advantage of the reset offered by yourself and the NDIA CEO at the recent Where To From Here (WTFH) conference.

Having previously been engaged in negotiations with the NDIA we are seeking to re-engage to bring about sensible movement ahead in this area.

Misconstrued attempt to unlawfully prohibit sex services as

an NDIA support

Here is some specific background information related to your office as Minister for the

NDIS, that you may not be aware of.

Successive Ministers, starting with Christian Porter, have tried to unilaterally, therefore unlawfully1, rule out the funding of sex services in participants plans. In the case of WRMF, it was made clear by the Federal Court that the Minister for the NDIS has never had the power to make such a decision. As you are no doubt aware, any decision to rule out a specific support requires unanimous support of State and Territory Ministers through the Disability Reform Council.

After the WRMF decision was handed down Minister Robert sought to get such a prohibition through the Disability Reform Council but his approach was rejected by State and Territory Ministers.

Then Minister Robert proposed to have the NDIS Act changed to remove the requirement for unanimous decision making to rule out particular supports. We understand that this proposal was recently put forward to the Disability Reform Council and the resulting communique suggests to us that that proposal has been rejected by State and Territory Ministers, along with the planned Independent Assessments.

We have recently been reliably informed that a decison was made in 2012/13 at the Disability Reform Council, which endorsed sex services as a funded support under the NDIS. We would greatly appreciate it if you could confirm the particulars of this prior decision and bring it to the attention of the other State and Territory Ministers.

…S.35(1)(b) of the Act, … enables rules to be made prescribing reasonable and necessary supports that will not be funded under the National Disability Insurance Scheme. Such rules need to have the unanimous agreement of the host jurisdictions, therefore including the States and the Commonwealth, all of which contribute funds to pay for the Scheme. The requirement for unanimity arises from s.209 of the Act.” (at para 43, [7]), FEDERAL COURT OF AUSTRALIA, National Disability Insurance Agency v WRMF [2020] FCAFC 79

This is consistent with the public statement made by Senator Fiffield at the National

Press Club in 2013 when this issue was raised in a question from the ABC

      “This issue has come up before. When the Senate was having public hearings
       into the NDIS legislation, this particular proposition was put: would the sorts of
     services that you mentioned qualify as reasonable and necessary?
      I’m not going to, I guess, give an on-the-spot ruling, but what I will say is the
   NDIS isn’t there to provide a range of things which individuals, whether they have
    a disability or not, might seek to have as part of their life. It’s there to provide
     supports so that they can do and achieve things which are made a little more
         difficult because of the disability that they had.

              I’ll leave the comments there. Partly because, you know, I don’t want to have a
     headline that says, you know, "Minister says x, y, z is in, shock horror".
   So I’m going to leave it there because the essence of the NDIS is working on a
     plan for an individual. Is: what are the goals, what the plans, what are the
      objectives for an individual? And each plan will be different, each plan will be
     personalised, and I’ll leave it at that.”2

Is it time for your office and the NDIA to accept reality - that every attempt to prohibit these supports being funded has failed, in the AAT, the Federal Court and the Disability Reform Council? It is our understanding that such a move would not get past the current Federal Senate.

Having announced a reset of the relationship between the disability sector and the NDIA, we call upon you as Minister for the NDIS to take this opportunity to instigate the development of relationships and sexuality policies by the NDIA.

 2 The Hon. Mitch Fifield’s address to the National Press Club on the topic 'A Better Deal for Australians

With Disability’- Dec 2013.

This would action a request made by State and Territory Ministers at an earlier Disability

Reform Council meeting for further consultation to be conducted by the NDIA in relation to these matters.

Statements and information put out by NDIA and prior Ministers are creating a substantial and unlawful barrier

We refer you to the following extracts of an information paper published by the NDIA in November 2020 3:

More guidance on the boundaries of the NDIS for…

Under this category, a new rule will make clear that NDIS funding is not to be used to purchase the services of a sex worker or devices solely for sexual stimulation [p.5]

When supports should be purchased using personal income or 政府收入支持…（此处为中文内容，可能需要进一步确认）

rent (other than specialist disability accommodation)
groceries
clothing
utility fees.

The Government and the NDIA Will Provide Detailed Guidance Around Supports

The Government and the NDIA will provide detailed guidance around supports relating to ordinary living expenses or day-to-day living costs.

This will assist participants to make informed choices about how they should use their NDIS funding and what is more appropriately purchased with personal income or government payments. Changes to the legislation will also make it clear that NDIS funds should not be used to purchase the services of a sex worker or devices solely intended for sexual stimulation and arousal. [p.20]

We note that the proposed NDIS Act reforms have been set aside.

As Minister, could you please advise us what steps you will be taking to bring the NDIA back into lawful practice? Please advise us what steps you will be expecting the CEO to take to correct the misinformed view held by many NDIS staff (Call Centre Staff / Planners / Support Coordinators / LACs) and external planners, that the prohibition of funding of sex services is a fait accompli.

Other matters of concern

We would like an opportunity to discuss the following issues with you at your earliest

convenience:

Problems with processing invoices and payments
Unauthorised changes to management of plans
Development of clear NDIS policy on sex and relationship

We would be pleased to arrange a video conference or phone call with your office. You

can email Saul via

Yours sincerely

Saul Isbister President Rose Handley Committee Member

GPO Box 700 CANBERRA ACT 2601 1800 800 110 dis.gov.au

Mr Saul Isbister President Touching Base Inc

Dear Mr Isbister

Thank you for your letter of 9 August 2021, which is primarily in relation to the funding of sexual services by the NDIA.

The NDIA is aware of the issues raised in your letter and is considering these further in light of the Government’s legislative intentions.

The NDIA acts consistently with the current legislative and case law requirements. We will respond to your letter more substantively when the consideration mentioned above is completed.

Thank you again for writing.

Yours sincerely

Martin Hoffman Chief Executive Officer National Disability Insurance Agency

13 August 2021

MC21-006800

Mr Saul Isbister President, Touching Base info@touchingbase.org

Dear Mr Isbister

Thank you for your letter of 10 August 2021 to the Minister for Government Services and Minister for the National Disability Insurance Scheme, Senator the Hon Linda Reynolds CSC, concerning supports provided under the National Disability Insurance Scheme (NDIS). The Minister has asked me to reply on her behalf.

The Australian Government’s consistent position is that using NDIS funds to pay for the services of a sex worker is not in line with community expectations or the broader intent of the NDIS. The Government considers that, as for any other person, the cost of sexual services for an NDIS participant should come from their general income, which may include income support provided by the government.

I would like to assure you that it is not the Government’s intention to restrict the ability of the NDIS to fund other supports that could assist a person to express their sexuality and develop sexual relationships for the purposes of procreation, pleasure or intimacy.

There is also no intention to prevent the NDIS from providing funding for other supports that enable people with disability to have control over, choice about, and access to services pertaining to their sexuality and ability to exercise sexual rights and freedoms.

Rather, the Government considers it appropriate to limit any exclusion in relation to sex workers solely to paid sex work or a support that uses a device for a similar purpose.

Before taking a final position on Rules to give effect to this policy, Minister Reynolds has committed to listening to the concerns raised by people with disability, their families and disability organisations, such as your own, that support them.

Thank you for your advocacy on this issue. I trust this information is of assistance.

Yours sincerely

Julie Yeend LVO Branch Manager NDIS Governance 23 August 2021

GPO Box 9820 Canberra ACT 2601 Telephone 1300 653 227  National Relay Service: TTY: 133 677  Speak and listen: 1300 555 727 Internet relay: www.relayservice.com.au www.dss.gov.au

GPO Box 700 CANBERRA ACT 2601 1800 800 110 dis.gov.au

Mr Saul Isbister President Touching Base Inc.

Dear Mr Isbister

Thank you for your letter of 9 August 2021, which was primarily in relation to the funding of Sexual Services under the National Disability Insurance Scheme (NDIS). The National Disability Insurance Agency (NDIA) is aware of the issues raised in your letter. The NDIA had been considering these further in light of the Government’s legislative intentions. The current legislative reform, included in the NDIS Amendment (Participant Service Guarantee and Other Measures) Bill 2021, will implement significant improvements for participants, their families and carers by reducing red tape, increasing flexibility and clarifying timeframes for decision-making by providing for the Participant Service Guarantee. They do not address the funding of Sexual Services by the NDIA. The NDIA has continued to progress the development of a Sexual Services policy consistent with the outcomes of WRMF, and is currently working through implementation requirements. This includes consideration of any safety and regulation requirements for the delivery of such supports, and will require the Agency to work with our colleagues in the Department of Social Services and the NDIS Quality and Safeguards Commission. In the meantime, the NDIA will continue to act consistently with the current legislative and case law requirements. Thank you again for writing. Yours sincerely Martin Hoffman Chief Executive Officer National Disability Insurance Agency

1 November 2021

Sex services funding under the NDIS

Problems with inclusion of requested supports in plans

Misconstrued attempt to unlawfully prohibit sex services as an NDIA support

Statements and information put out by NDIA and prior Ministers are creating a substantial and unlawful barrier

Page 5

Page Text Start

10th August 2021

Misconstrued attempt to unlawfully prohibit sex services as

This is consistent with the public statement made by Senator Fiffield at the National

This would action a request made by State and Territory Ministers at an earlier Disability

The Government and the NDIA Will Provide Detailed Guidance Around Supports