NDIS Quality and Safeguards Commission

Submission to the Attorney-General Department’s review of the Disability Discrimination Act 1992

October 2025

Acknowledgment of Country

The NDIS Quality and Safeguards Commission acknowledges the traditional custodians of the lands on which we work. We pay our respects to Elders past, present and emerging.

We thank all Aboriginal and Torres Strait Islander people for sharing their knowledge of country and culture with us so we can work together to shape culturally appropriate services for a more inclusive society.

Introduction

Background on the NDIS Quality and Safeguards Commission

The NDIS Quality and Safeguards Commission (NDIS Commission) is the regulator of providers and workers delivering NDIS supports and services to NDIS participants. We regulate the NDIS to ensure people with disability receive safe, high-quality supports and services. The NDIS Commission was established in 2018 following the release of the NDIS Quality and Safeguarding Framework in 2016.

Section 181D of the National Disability Insurance Scheme Act 2013 (NDIS Act) establishes the role of the NDIS Commissioner. The NDIS Commissioner has a range of functions, which are:

(a) the core functions

(b) the registration and reportable incident functions

(c) the complaints functions

(d) the behaviour support function

(e) such other functions that are conferred on the Commissioner by or under this Act or any other law of the Commonwealth

(f) to do anything incidental or conducive to the performance of any of the above functions.

The core functions of the NDIS Commissioner are set out at section 181E of the NDIS Act, which are:

(a) to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the National Disability Insurance Scheme

(b) to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services, including those received under the National Disability Insurance Scheme

(c) to promote the provision of advice, information, education and training to NDIS providers and people with disability

(d) to secure compliance with this Act through effective compliance and enforcement arrangements, including through the monitoring and investigation functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4

(e) to promote continuous improvement amongst NDIS providers and the delivery of progressively higher standards of supports and services to people with disability

(f) to develop and oversee the broad policy design for a nationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability

(g) to provide advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions

(h) to engage in, promote and coordinate the sharing of information to achieve the objects of this Act

(i) to provide NDIS market oversight, including:

• (i) by monitoring changes in the NDIS market which may indicate emerging risk and
• (ii) by monitoring and mitigating the risks of unplanned service withdrawal.

Not all regulatory levers for the NDIS market rest with the NDIS Commission. The National Disability Insurance Agency (NDIA) is responsible for NDIS pricing, including the NDIS Pricing Arrangements and Price Limits document and the NDIS Support Catalogue. The NDIA is also responsible for the enrolment of Specialist Disability Accommodation (SDA) housing.

The NDIS Market Roles and Responsibilities sets out the relevant NDIS parties and their market role across Australian and state and territory governments.

The NDIS Commission directly co-regulates two of its functions with states and territories:

• behaviour support (through state and territory authorisation processes); and
• the NDIS Worker Screening Check (through state and territory worker screening units, in accordance with arrangements set out in the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS).

While the NDIS Commission is an Australian Government agency, funding and governance for the NDIS is shared among all Australian governments.

The current NDIS Commissioner is Ms Louise Glanville. Ms Natalie Wade is the Associate NDIS Commissioner.

Focus Areas

The NDIS Commission welcomes the opportunity to contribute to this review by the Attorney-General’s Department.

We note that as a human rights regulator our core purpose is to protect and promote the rights of people with disability and ensure that NDIS participants are treated with dignity, equality and respect and their rights are upheld.

For the purposes of making a written submission, we have drawn upon specific themes from the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) review that are particularly relevant to the functions and powers of the NDIS Commissioner:

• Definition of Disability
• Addressing intersectionality
• Positive duty for duty holders to eliminate discrimination
• Offensive behaviour and vilification protections
• Disability Standards.

The NDIS Commission notes in preparing a submission to the Disability Discrimination Act Review, we draw on our organisational experience, insights and broad program of work, and consideration of relevant reviews and royal commissions (including the NDIS Review and Disability Royal Commission). Noting the comprehensive nature of this review, the NDIS Commission could not tackle all consultation questions and instead applied a thematic lens to the Issues Paper.

Part 1 – Updating understandings of disability and disability discrimination

Definition of Disability

Consultation questions responded to

1. How should disability be defined in the Disability Discrimination Act?

2. What factors should be considered in developing a new definition of disability?

Response

The NDIS Commission applies a rights-based lens to disability throughout its organisation and regulatory activities. To support this, we have developed internal Human Rights Guidance.

The NDIS Commission is supportive of developing a modernised definition of disability in the Disability Discrimination Act aligning with the human rights model of disability and approach taken by the Disability Royal Commission, the United Nations Convention of the Rights of Persons with Disability (UNCRPD) and intersectionality.

In addition, we suggest that the Commonwealth works (as far as practicable) to develop a standardised and/or consistent definition of disability across Commonwealth legislation while ensuring that this definition is practically implementable in different contexts. Consideration should be given to the possible impact of different definitions of disability across Commonwealth legislation particularly in relation to the NDIS Act and the Disability Services and Inclusion Act 2023.

While the NDIS Act does not include a definition of disability, section 24 of the NDIS Act stipulates circumstances in which a person meets the disability requirements for the purposes of accessing the NDIS. A person meets the disability requirements if the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable (and several other conditions including whether the impairment affects the person’s capacity for social and economic participation) (subsection 24(1); and see also section 32BA). This aligns with a rights-based approach, focusing on how disability affects participation and independence, not just on a medical diagnosis.

It should also be noted that preamble of the UNCRPD defines disability in line with the approach taken by the Disability Royal Commission.1 This is supported by General Comment VI which, among other things, states that disability-inclusive anti-discrimination laws ‒can only be effective if they are based on a broad impairment-related definition of disability– and ‒a broad impairment-related definition of disability does not perpetuate the medical model of disability–.2

1 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007 A/RES/61/106 (entered into force 3 May 2008) Preamble(e). 2 Committee on the Rights of Persons with Disabilities, General comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018).

Addressing intersectionality

Consultation questions responded to

3. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

4. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

Response

Intersectionality

The NDIS Commission acknowledges that an intersectional lens is required to ensure the best outcomes for all NDIS participants.

Kimberlie Crenshaw writes that, ‒Intersectionality is an analytic sensibility, a way of thinking about identity and its relationship to power–3. Intersectionality recognises that individuals have many overlapping identities (for example, disability, gender, culture) which create complex relationships with power systems that may manifest in different ways ‒ for example, oppression or privilege.

The NDIS Commission recognises the many experiences of intersectionality of people with disability. By recognising intersectionality, we can strengthen our commitment to equity, social and economic inclusion, and human rights.

The NDIS Commission’s Disability Action Plan (DAP) has been shaped by people with disability who have diverse backgrounds, identities and experiences. When the diverse voices of people with disability are included there is not only acknowledgement of the broader systemic and structural barriers facing people with disability, but there is an institutional need to work to remove them.

Intersectionality is reflected as a guiding principle in the NDIS Act which requires (where the Act permits an act or thing to be done by or in relation to a person with disability by another person) consideration of the age, cultural and linguistic circumstance, sex, gender identity, sexual orientation and intersex status of people with disability.4 We suggest giving consideration to amending the objectives of the Disability Discrimination Act, or introducing guiding principles to the Disability Discrimination Act, which similarly introduce intersectionality as a key consideration in the application of protections under the Act.

Coverage of international human rights instruments

Intersectionality connects all international human rights instruments through one lens, helping us to recognise how experiences of multiple discrimination are not discrete. The UNCRPD preamble states that it is ‒concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status–5. Beyond the UNCRPD, there are several human rights instruments relevant to the intersectional identities of people with disability, some of which are given partial effect in Australia by the NDIS Act. We welcome consideration of amendments to the Disability Discrimination Act (e.g. section 12(8) and other relevant substantive provisions) to incorporate other key human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, as appropriate.

3 Kimberlie Crenshaw (2015) Why intersectionality can’t wait, The Washington Post 24 September 2015 4 National Disability Insurance Scheme Act 2013 s 5.

status–5. Beyond the UNCRPD, there are several human rights instruments relevant to the intersectional identities of people with disability, some of which are given partial effect in Australia by the NDIS Act. We welcome consideration of amendments to the Disability Discrimination Act (e.g. section 12(8) and other relevant substantive provisions) to incorporate other key human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, as appropriate.

Replacing the comparator test with the detriment test to better address intersectionality

We consider the Disability Discrimination Act to be particularly relevant to disability discrimination in the context of the NDIS ‒ for example when it comes to disability discrimination in the context of goods, services and facilities as well as accommodation6.

As outlined in the Disability Discrimination Act Review’s issues paper, the NDIS Commission considers that the comparator test does not lend itself to easily addressing the intersectional discrimination that NDIS participants may face. Not only should careful consideration be given to abandoning the comparator test in favour of the detriment test, but any such change should adequately address circumstances where NDIS participants experience discrimination:

• on the basis of having multiple disabilities and/or
• on an intersectional basis (where they have a disability and combined with another characteristic).

5 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007 A/RES/61/106 (entered into force 3 May 2008) Preamble(p). 6 For example, under sections 24 and 25.

Part 2 – Positive duty to eliminate discrimination

Positive duty for duty holders to eliminate discrimination

Consultation question responded to

12. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

Response

Support for a positive duty under the Disability Discrimination Act

The NDIS Commission would be supportive of introducing a positive duty for all organisations to eliminate discrimination under the Disability Discrimination Act, as this would improve outcomes for NDIS participants and people with disability more broadly (and align with the approach taken under the Sex Discrimination Act 1984 (Cth)). The NDIS Commission considers this to be an appropriate mechanism for addressing disability discrimination on a wider scale.

The NDIS Commission has taken significant steps to eliminate discrimination of all kinds within our organisation ‒ including disability discrimination. Key steps include developing a Disability Action Plan (DAP), introducing disability leave and establishing processes for reasonable adjustments for staff.

Importantly our DAP’s objectives focus on:

• improving accessibility to create a safe and inclusive organisation
• improving career pathways and professional development opportunities for staff with disability
• disability leadership and inclusion.

Through the DAP, the NDIS Commission is committed to:

• working with our NDIS sector partners to improve outcomes for people with disability
• including the perspectives of people with a lived experience of disability in all our work
• encouraging a shift in community attitudes that helps to improve the human rights of people with disability.

We also note that the NDIS Commission has adopted a positive duty relating to human rights when fulfilling its functions and utilising its powers under the NDIS. As articulated in our Human Rights Guidance and Regulatory Approach Document, we act compatibly with human rights and consider human rights when making decisions. This requires staff to demonstrate consideration of human rights at an early stage, helping to prevent breaches from occurring.

Our key regulatory mechanisms in relation to disability discrimination

Under paragraph 73F(2)(a) of the NDIS Act, it is a condition of registration that registered NDIS providers must (among other things), comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory (including the Disability Discrimination Act) in which the person or entity operates as a registered NDIS provider.

The NDIS Commission may also consider discrimination (and other rights-based matters) through enforcement of the NDIS Code of Conduct which sets minimum expectations to all providers, their employees and persons engaged by providers.

The NDIS Code of Conduct is provided in section 6 of the National Disability Insurance Scheme (Code of Conduct) Rules 2018:

The NDIS Code of Conduct requires people who deliver NDIS supports and services to:

• act with respect for individual rights to freedom of expression, self-determination, and decision-making in accordance with relevant laws and conventions
• respect the privacy of people with disability
• provide supports and services in a safe and competent manner with care and skill
• act with integrity, honesty, and transparency
• promptly take steps to raise and act on concerns about matters that might have an impact on the quality and safety of supports provided to people with disability
• take all reasonable steps to prevent and respond to all forms of violence against, exploitation, neglect, and abuse of people with disability
• take all reasonable steps to prevent and respond to sexual misconduct
• not charge or represent higher prices for the supply of goods for NDIS participants without a reasonable justification.

Anyone can make complaints about potential breaches of the NDIS Code of Conduct and where a breach is confirmed, the NDIS Commission can take a range of actions as appropriate, including education, compliance and enforcement action or prohibiting providers from operating in the NDIS market.7

Together with the NDIS Code of Conduct, the NDIS Practice Standards assist NDIS participants to be aware of what quality service provision they should expect from NDIS providers.

7 National Disability Insurance Scheme Act 2013 s 73V(3).

Part 4 – Improving access to justice

Offensive behaviour and vilification protections

Consultation questions responded to

Harassment and offensive behaviour

27. How could the Disability Discrimination Act be amended to protect people with disability from offensive behaviour and/or harassment?

28. If the Disability Discrimination Act were to prohibit offensive behaviour and/or harassment, how should these terms be defined?

29. Should there be exemptions for any behaviour, similar to the Racial Discrimination Act?

Vilification

30. Given the recent legislative developments, are there any further gaps in the legislative framework that could be addressed by amendments to the Disability Discrimination Act to protect people with disability from vilification?

Response

Support for protections against harassment, offensive behaviour and vilification under the Disability Discrimination Act

The NDIS Commission considers harassment, offensive behaviour and vilification to be significant factors which undermine the provision of safe and quality services and support under the NDIS (as well as undermining the associated human rights).

While it is noted that section 39 of the Disability Discrimination Act offers protection from harassment in the context of goods, services and facilities, the NDIS Commission would be supportive of expanding these existing protections to include the context of accommodation. This is particularly relevant to the work of the NDIS Commission as individuals engaging home and living supports using their NDIS funding should be protected from harassment on the basis of their disability. This would potentially support improved access to safe and quality accommodation and supports for NDIS participants and better outcomes for people with disability more broadly.

For similar reasons, the NDIS Commission is also supportive of introducing protections for offensive behaviour and vilification that would (among other things) apply in the context of supply of goods, services and facilities, as well as in the context of accommodation.

Part 6 – Modernising the Disability Discrimination Act

Disability Standards

Consultation questions responded to

45. How could compliance with and enforcement of the Disability Standards be improved?

46. Should the Disability Discrimination Act be amended to encourage relevant duty holders to self-report on their compliance with the Disability Standard(s) in disability action plans?

Response

The NDIS Commission considers that the three Disability Standards play a significant role in contributing to accessibility, safety and quality of life for NDIS participants. For example, some NDIS providers are covered by the Disability Standards for Education 2005. As such, the NDIS Commission supports measures that would enhance compliance with, and enforcement of, the Disability Standards.