Submission to the Senate Community Affairs

Legislation Committee: National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

Executive Summary

The National Disability Insurance Scheme (NDIS) was meant to revolutionise disability support in Australia, providing people with permanent and significant disabilities the reasonable and necessary supports to live an ordinary life. However, the proposed NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 makes changes that fundamentally undermine the choice, control, and rights of NDIS participants. If passed, it would set disability rights in Australia back decades.

This submission outlines how key provisions of the Bill violate Australia’s human rights obligations under international law and risk significant harm to people with disability. The analysis is based on the articles of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and other core human rights treaties to which Australia is a party.

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The submission highlights how the Bill proposes to give extraordinary

ew powers to the National Disability Insurance Agency (NDIA) to

control participants’ lives and cancel supports, with limited transparency, oversight or review rights. It identifies how vague criteria and significant penalties will likely lead to the arbitrary suspension or cancellation of NDIS supports. There are grave concerns that the Bill’s provisions to introduce a new assessment process, expand debt-raising powers, limit choice of providers and mandate shared living arrangements will cause serious harm.

The analysis shows how the Bill’s provisions echo the failings of the illegal Robodebt scheme. Overall, the Bill represents an unacceptable erosion of disability rights in Australia that violates our obligations under the CRPD.

Background

The Bill was introduced into Parliament in March 2024 without any meaningful or in-depth consultation with the disability community, despite promises of co-design. The Bill claims to implement recommendations from the 2023 NDIS Review, but entire sections are inconsistent with what was actually recommended.

Many elements of the Bill can be traced back to abandoned proposals from the previous Coalition government in 2021, when then Minister Stuart Robert attempted to push through controversial changes.

Documents obtained by The Saturday Paper reveal staff who helped

design the illegal Robodebt scheme contributed to those abandoned

2021 reforms, which have now been resurrected in the current Bill.

Despite the concerning history and content of the Bill, the Government is

ushing the reforms through. The May 2024 Budget has already banked on the Bill and subsequent legislative changes delivering a $14.4 billion cut to NDIS costs over five years. However, achieving these savings depends on the Bill being passed urgently, even though the complementary “foundational supports” the states and territories have agreed to co-fund will not be in place for several years.

The Bill therefore risks leaving people with disability without essential supports if they are kicked off the NDIS through the proposed legislative changes. Disability advocates are deeply concerned this approach repeats the mistakes of past failed reforms, by putting cost-savings ahead of human rights.

Human Rights Analysis of Key Provisions

1. New NDIA Powers to Demand Information on Threat of Suspended or Cancelled Access

The Bill proposes broad new powers for the NDIA to compel a participant to provide any information or undergo an assessment, or else have their NDIS access suspended or revoked (proposed sections 30(5), 30A(7), 36(3)).

• This violates:

• CRPD Article 12 on equal recognition before the law, by

  undermining participants’ autonomy with punitive compliance

  measures.

• CRPD Article 22 on respect for privacy, through invasive

  information-gathering.

• CRPD Article 28 on adequate standard of living and social

  protection, by threatening essential supports.

There are no limits on the scope of information the NDIA can demand, the frequency of requests, or requirement for requests to be reasonable/necessary. Revoking access for non-compliance applies regardless of the participant’s capacity to respond. Cutting off NDIS funding for potentially minor non-compliance is excessive and cruel.

2. New NDIA Power to Pick a Participant’s Primary Disability

 (Without Participant Input or Review)

The Bill proposes the NDIA will decide whether a person is eligible due to disability requirements, early intervention requirements or both - implying assigning a ‘primary disability’ (proposed section 21(2)).

This violates:

• CRPD Articles 4 and 5 on respect for rights, equality and non-

  discrimination, through lack of transparency and consultation.

• CRPD Article 12 on equal recognition before the law, by removing

  review rights around this decision.

Categorising people by ‘primary disability’ rejects the reality that

disabilities frequently co-occur and interact. The NDIA has a troubled history of using ‘primary disability’ to arbitrarily restrict funding to only some of a person’s disability-related needs. The Bill would enshrine this problematic approach in law. There is no requirement for the NDIA to tell the person which category they’ve been put in, or any right to challenge it.

The idea of ‘whole of person’ means exactly that. It means what our disabilities are, all of them. Our medical conditions. Our ages, our families, our histories, geographies, sexual orientation, gender and cultural backgrounds. Categorising us by a single impairment and then by severity is a recipe for disaster – it is a return to the old schemes and postcode lotteries that we fought against in 2009.

New NDIA Power to Raise Debts for Supports It Retrospectively Deems Not ‘Reasonable and Necessary’

The Bill proposes that if the NDIA decides a support was not ‘reasonable and necessary’, even after the funds have been spent, it can raise a debt against the participant to recover the money (proposed section 45(1A)).

This violates:

• CRPD Article 12 on equal recognition before the law, by creating financial liabilities for potentially subjective decisions.
• CRPD Article 19 on living independently and being included in the community, by causing economic insecurity.

“\n\n- CRPD Article 28 on adequate standard of living, by clawing back\n\nfunds already used.

There is no time limit on when the NDIA can retrospectively decide a\npast payment was not ‘reasonable and necessary’. Given the lack of\ncertainty around when a support is ‘reasonable and necessary’, this puts\nparticipants in a state of perpetual financial insecurity. This also opens\ngovernment to both reputational damage in the wake of Robodebt and\nfiscal liability - the RoboNDIS campaign has already been launched and\nproposes class actions against government for just these actions.

www.roboNDIS.org

4. Broad NDIA Powers to Force Use of Specific\n Providers/Supports Against a Person’s Will

The Bill would allow the NDIA to mandate a participant use a specific\nprovider or support (proposed section 33(3)).

This violates:

• CRPD Article 19 on living independently and being included in the\n community, by removing choice and control.

• CRPD Article 3 on respect and non-discrimination, with no\n safeguards against mandating a provider that conflicts with a\n person’s cultural/identity needs.

There are no limits on this power. The NDIA could force a participant to\nuse a provider they had a terrible experience with. There are no

exceptions for when a specific provider would not meet a person’s

cultural, religious, sexuality or gender needs.

We believe that government will try to put in place panel providers for

specific categories, such as aids and equipment. But this flies in the face

of the principle of choice and control and will harm many disabled

people, cutting them off from essential supports.

5. New Assessment Process With No Legislated Right to

Challenge

The Bill introduces a new NDIA-controlled assessment process, where

the ‘needs assessment’ may be the only determinant of funding

(proposed section 32L). Participants get a copy of the assessment after

it’s already finalised, with no legislated right to comment before funding

decisions are locked in.

This violates:

CRPD Article 12 on equal recognition before the law, by removing

 transparency and accountability.

CRPD Article 13 on access to justice, by lacking clear appeal rights.

There are no details on how the assessment process works, whether the

person can comment on a draft and minimal review rights. If the NDIA

can effectively decide funding via a secretive assessment tool, it

removes transparency and control.

Expansion of NDIA Powers to Seize Funds and Cancel Plans If It Disputes a Person’s Spending

Currently, the NDIA can suspend or cancel a participant’s plan if it considers they have not complied with a “spending condition” it has imposed. The Bill allows the NDIA to seize plan funds and/or cancel the plan replacing it with a more restrictive one (proposed section 33(4)). This violates:

• CRPD Articles 12 and 28 on equal recognition before the law and adequate standard of living, by creating financial insecurity.
• CRPD Article 19 on living independently, by arbitrarily removing supports and funds.

Cancelling a person’s entire plan over subjective views about specific spending decisions is an extreme overreach. Participants will be in constant fear of losing funds and supports.

Summary of Human Rights Violations

The Bill’s proposed changes violate multiple articles of the CRPD:

• Article 3 on respect for inherent dignity, individual autonomy and independence
• Articles 4 and 5 on respect for rights and freedoms without discrimination
• Article 9 on accessibility
• Article 12 on equal recognition before the law
• Article 13 on access to justice

Conclusion and Recommendations

Based on the human rights analysis above, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Bill 2024 does not “get the NDIS back on track”. Instead, it derails the fundamental principles of choice and control that people with disability and their families fought hard for with the NDIS. Overall, the Bill represents an unacceptable erosion of disability rights in Australia,

It also undermines rights and protections in:

• Universal Declaration of Human Rights (UDHR)
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• Convention on the Rights of the Child (CRC)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The following articles are affected:

• Articles 16 and 17 on freedom from violence, exploitation and abuse
• Article 19 on living independently and being included in the community
• Article 22 on respect for privacy
• Articles 25 and 26 on health, habilitation and rehabilitation
• Article 28 on adequate standard of living and social protection

violating our obligations under international human rights law, especially

the CRPD.

The Australian Government should not proceed with a Bill that so

blatantly violates the rights of people with disability. We urge the

Parliament to reject this fatally flawed legislation.

Instead, any future NDIS reforms must be co-designed with people with

disability and their representative organisations to ensure an NDIS that

genuinely empowers participants. Critically, changes to limit access to

NDIS supports must not proceed until the complementary “foundational

supports“ outside the NDIS are actually in place. The proposed

expansion of NDIA powers and debt-raising arrangements should be

abandoned entirely and the Rules for the Scheme should be presented

alongside the proposed legislative changes to enable supported decision

making for both government and people with disability.

Australia needs an NDIS that enshrines the rights and respects the

dignity of people with disability – not the bad old schemes that it

replaced. We understand that this is the pathway that government has

decided upon to try to save money – we also understand, more fully than

anyone else, what the consequences will be. We urge each member of

the Committee to stand for what is right and listen to what people with

disability say.

Free and Equal Australia

This is too important to get wrong. It is about our lives.

• Free and Equal Australia is a group of experienced disability

• advocates who work within a disability and human rights

• framework to ensure the rights of people with disability are

• upheld and our voices are heard.

Introduction

The National Disability Insurance Scheme (NDIS) was meant to revolutionize disability support in Australia, providing people with permanent and significant disabilities the reasonable and necessary supports to live an ordinary life. However, the proposed NDIS Amendment (Getting the NDIS Back on Track) Bill 2024 makes changes that fundamentally undermine the choice, control, and rights of NDIS participants. Rather than an empowering scheme, this Bill shifts the NDIS towards a model where the NDIA has expansive and unchecked powers to control participants’ lives. If passed, it would set disability rights in Australia back decades.

This Bill is not only a legislative affront to the rights of people with disability but also a continuation of a harmful narrative that stigmatizes and dehumanizes disabled individuals. The recent online commentary about the ‘waste clock’ introduced by Bill Shorten is a glaring example of this. Statements like “see whose clock is bigger” and accusations of participants making “wasteful” claims for washing machines, birdseed, and crystal therapy are unfounded and misleading. These narratives paint people with disability as burdens on the taxpayer, reinforcing harmful stereotypes and contributing to societal stigma.

This behavior must be condemned in the strongest terms. In a country that lacks hate crime laws and in the wake of a Disability Royal Commission that heard thousands of stories of violence, abuse, and neglect against people with disability, it is unconscionable to vilify a marginalized group to justify government cuts during a global pandemic. Such actions cause irreversible harm to disabled people and their

Outline: Why the NDIS Amendment (Getting the NDIS Back on Track) Bill 2024 Must Not Pass

Introduction

The National Disability Insurance Scheme (NDIS) was meant to revolutionise disability support in Australia, providing people with permanent and significant disability the reasonable and necessary supports to live an ordinary life.

However, the proposed NDIS Amendment (Getting the NDIS Back on Track) Bill 2024 makes changes that fundamentally undermine the choice, control, and rights of NDIS participants. Rather than an empowering scheme, this Bill shifts the NDIS towards a model where the NDIA has expansive and unchecked powers to control participants’ lives. If passed, it would set disability rights in Australia back decades.

The Bill’s Concerning Provisions and Human Rights Implications

1. The NDIA Can Kick You Off the NDIS If You Don’t Provide Information

Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 30(5): “If a

Potential Breach of Rights:

• UNCRPD Article 12 (Equal recognition before the law): This

  provision could undermine participants’ autonomy and legal

  capacity by imposing punitive measures for non-compliance.

• UNCRPD Article 22 (Respect for privacy): Broad information-

  gathering powers could infringe on participants’ privacy.

• UNCRPD Article 28 (Adequate standard of living and social

  protection): It places unreasonable burdens on participants and

  risks those unable to comply losing vital supports.

2. The NDIA Can Secretly Decide Your “Primary Disability”

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 21(2): “The

  CEO must decide if a person is eligible due to meeting ’disability

  requirements’, ‘early intervention requirements’, or both.“

• UNCRPD Article 4 (Respect for rights): Lack of transparency

could violate the principles of respect for inherent dignity and full and effective participation.

• UNCRPD Article 5 (Equality and non-discrimination): The NDIA’s secret determinations could breach the obligation to closely consult with and actively involve persons with disabilities.

• UNCRPD Article 12 (Equal recognition before the law): The absence of review rights around this decision undermines legal security.

3. The NDIA Can Make You Pay Back Money If They Disagree With How You Spent It

Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 45(1A): “If the CEO considers that an amount paid to a participant under the participant’s plan has not been spent in accordance with the plan, The CEO may recover the amount from the participant as a debt due to the Agency.”

Potential Breach of Rights:

• UNCRPD Article 12 (Equal recognition before the law): Imposing debts for disputed expenditures could undermine participants’ legal and financial security.

• UNCRPD Article 19 (Living independently and being included in the community): Financial repayment obligations could reduce

• participants’ access to necessary supports, impacting their

• standard of living.

• UNCRPD Article 28 (Adequate standard of living and social

  protection): This undermines the principle of reasonable and

• necessary supports.

4. You Could Be Accused of Fraud If Your Support Coordinator

Organises a Disputed Support

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 46(1B): “If the

CEO considers that a person has committed fraud in relation to the

use of amounts paid to a participant under the participant’s plan,

the CEO may: (a) recover the amounts as a debt due to the

Agency; and (b) refer the matter for investigation and potential

prosecution.“

Potential Breach of Rights:

• UNCRPD Article 12 (Equal recognition before the law):

  Participants could face legal uncertainties and unfair treatment due

  to strict oversight on support coordinators.

• UNCRPD Article 19 (Living independently and being included

  in the community): Fraud accusations without proper legal

safeguards could hinder participants’ access to justice.

5. The NDIA Can Force You to Use Specific Providers or Supports

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 33(3): “The”

  CEO may impose conditions on the participant’s plan specifying

  that the participant must obtain supports from particular providers

  or must use specific types of supports.

Potential Breach of Rights:

• UNCRPD Article 19 (Living independently and being included

  in the community): Forcing participants to use specific providers

  could limit their independence and choice.

• UNCRPD Article 26 (Habilitation and rehabilitation): Restricting

  provider options could hinder access to appropriate and effective

  habilitation and rehabilitation services.

6. The NDIA Can Make You Use a Provider You Had a Terrible

Experience With

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 33(3): “The”

  CEO may impose conditions on the participant’s plan specifying

  that the participant must obtain supports from particular providers

  or must use specific types of supports.

Potential Breach of Rights:

• UNCRPD Article 16 (Freedom from exploitation, violence,

  abuse): Forcing participants to use previously harmful providers

  could expose them to further exploitation or abuse.

• UNCRPD Article 12 (Equal recognition before the law):

  Participants’ preferences and experiences should be considered in

  provider selection.

• UNCRPD Article 17 (Protecting the integrity of the person): It

  fails to protect participants from mistreatment.

• UNCRPD Article 19 (Living independently and being included in the community): It undermines participants’ choice and control.

• UNCRPD Article 12 (Equal recognition before the law): This undermines the principles of dignity and autonomy.

8. The NDIA Wants to Use a Secret Assessment Process to Decide Your Funding

Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 32L(6A): “The CEO must give a participant a copy of their needs assessment report as soon as practicable after the CEO receives the report.”

Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 45(1A): “If the CEO considers that an amount paid to a participant under the participant’s plan has not been spent in accordance with the plan, the CEO may recover the amount from the participant as a debt due to the Agency.”

Potential Breach of Rights:

• UNCRPD Article 12 (Equal recognition before the law): Potential debts from disputed funding usage could affect participants’ financial stability and access to supports.

• UNCRPD Article 19 (Living independently and being included in the community): It undermines the autonomous choice and control that is meant to underpin the NDIS.

10. The NDIA Can Ask for Any Medical Information With No Limits

Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 30(3): “The CEO may request the participant to undergo an assessment or a medical, psychiatric, psychological or other examination and provide a report to the CEO.”

• UNCRPD Article 22 (Respect for privacy): Unlimited requests for

  medical information could infringe on participants’ privacy.

• UNCRPD Article 12 (Equal recognition before the law): Broad

  information requests could undermine participants’ autonomy and

  legal capacity.

11. You Could End Up With a Debt and Agency Management Due to Provider Fraud

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 46(1A): “If the

  CEO considers that a person has committed fraud in relation to the

use of amounts paid to a participant under the participant’s plan,

the CEO may: (a) recover the amounts as a debt due to the

Agency; and (b) refer the matter for investigation and potential

prosecution.“

• Reference:

  • National Disability Insurance Scheme Amendment (Getting

    the NDIS Back on Track No. 1) Bill 2024, Section 33(4): “If the

    CEO considers that a participant has not complied with a condition

    imposed under subsection (3), the CEO may: (a) suspend the

    provision of funding under the participant’s plan; or (b) revoke the

    participant’s plan and prepare a new plan.“

Potential Breach of Rights:

• UNCRPD Article 12 (Equal recognition before the law):

  Disagreements on spending leading to loss of supports could

  undermine participants’ legal and financial security.

• UNCRPD Article 19 (Living independently and being included

  in the community): Losing access to supports could limit

  participants’ independence and community inclusion.

13. You Could Get Kicked Off the NDIS If You Have a Difficult

Period Without Realising

Reference:

• National Disability Insurance Scheme Amendment (Getting

  the NDIS Back on Track No. 1) Bill 2024, Section 30A(4): “If a

  participant fails to provide the information requested under

  subsection (1) within the period specified in the request, the CEO

  may: (a) suspend the person’s participant status; or (b) revoke the

  person’s participant status if the person fails to provide the

  information within a further period specified by the CEO.“

• Potential Breach of Rights:

• UNCRPD Article 19 (Living independently and being included in the community): Revocation during difficult periods could leave participants without essential supports.

• UNCRPD Article 12 (Equal recognition before the law): Revocation without clear safeguards could undermine participants’ legal and financial security.

• UNCRPD Article 28 (Adequate standard of living and social protection): It undermines the protection for participants during challenging times.

14. Lack of Clear Appeals Process for Needs Assessments Reference:

• National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, Section 32K(3A): “A participant who disagrees with their needs assessment report can request a replacement assessment; however, there are no specific provisions ensuring a clear and transparent appeals process.” Potential Breach of Rights:

• UNCRPD Article 13 (Access to justice): Lack of a clear appeals process could hinder participants’ access to justice for disputed assessments.

The NDIS Amendment (Getting the NDIS Back on Track) Bill 2024 does

not “get the NDIS back on track” at all. Instead, it derails the

fundamental principles of choice and control that people with disability

and our families fought so hard for. Overall, the Bill represents an

unacceptable erosion of disability rights in Australia. The Australian

government must not proceed with a Bill that so blatantly violates its

obligations under the UNCRPD.

Instead, we urge the government to abandon this fatally flawed and

harmful Bill. Australia needs an NDIS that genuinely empowers people

with disability—not one that empowers the NDIA to ride roughshod over

our dignity, autonomy, and rights.