NDIA Accountability Project

Proposed changes to the National Disability Insurance Scheme deviate from original goals

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Submission 1504

Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600

27/05/2026

Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 and Human Rights Obligations under the Convention on the Rights of Persons with Disabilities and other Treaties.

Dear Committee Secretary

We write to raise our concerns in relation to the proposed National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026. In our view the proposed changes to the National Disability Insurance Scheme Act 2013 deviate from original goals of the legislation, are at odds with Australia’s obligations to achieve rights for people with disability and fail to comply with a duty to avoid retrogressive measures in relation to economic, social and cultural rights.

  • The National Disability Insurance Scheme has an explicit goal to realise core human rights for people with disability in Australia. A very clearly stated Object of the National Disability Insurance Scheme Act 2013 is ‘to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities’ (Part 2 (3)(a)), as well as ‘give effect to certain obligations that Australia has as a party to,’ including the International Covenant on Civil and Political Rights the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on the Elimination of All Forms of Racial Discrimination’ (Part 2 (3)(i)).

  • We note that the National Disability Insurance Scheme Act 2013 has a strong human rights framing in its Objects – perhaps stronger than almost any other comparable Australian legislation – because of the commitment in the legislation to meet international rights obligations to ‘support the independence and social and economic participation of people with disability’ (Part 2 (3)(c)). This was underlined in the explanatory memorandum for the National Disability Insurance Scheme Bill 2012, which, as noted by the Parliamentary Joint Committee on Human Rights in 2013 ‘make clear that the NDIS has been conceived in light of the underlying conceptual framework and specific obligations of the UN Convention on the Rights of Persons with Disabilities (CRPD)’ (JCHR 2013, 2). The Statement of Compatibility with Human Rights, tabled with the National Disability Insurance Scheme Bill 2012, stated clearly that the legislation intended to engage with the ‘the rights of people with disabilities in the Convention on the Rights of Persons with Disabilities (CRPD), especially Articles 3, 4, 7, 8, 12, 19, 20, 21, 22, 26, 28, 30, 31; the rights of children in the Convention on the Rights of the Child , especially Articles 12 and 23; Article 10 of the International Covenant on Economic, Social and Cultural Rights ; and Article 17 of the International Covenant on Civil and Political Rights.’ Of particular note, the Statement of Compatibility highlighted the function of the Scheme in meeting obligations under Article 19 CRPD (‘Living independently and being included in the community’) and Article 26 CRPD (‘Habilitation and rehabilitation’).

Submission 1504

3.

The 2013 Community Affairs Legislation Committee review of the National Disability Insurance Scheme Bill 2012 noted the strong stakeholder endorsement for a rights-based approach in the NDIS legislation (CALC 2013, 21). The Committee recommended removal of the conditional language within the Bill which would only partially commit the Scheme to fulfilling human rights obligations, and recommended ‘the Bill be revised to more strongly reflect Australia’s international human rights obligations such as those in relation to: civil, political, economic, social and cultural rights; the prevention of racial discrimination or torture; and people with disability, women, and children’ (CALC2013, 22). The Committee recommendations were implemented in the revised text that would become the National Disability Insurance Scheme Act 2013, including through the explicit goal in the Objects of the legislation to meet obligations from no less than six of the core human rights treaties which Australia is party to.

4.

The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 proposes a number of amendments that aim to reduce costs on the Scheme and, as outlined in the Explanatory Memorandum, ‘put the Scheme on a more sustainable footing, now and for future generations.’ One of the key changes are the proposed powers for the Minister to make support determinations that funding provided to an eligible participant ‘may be less than the actual cost of providing or acquiring the support.’ Here, the rationale for reducing the level of funding available would be ‘for the purposes of ensuring the financial sustainability of the Scheme.’ Another important change is the proposed amendment to the Objects of the National Disability Insurance Scheme Act 2013, which would limit ‘reasonable and necessary’ supports to those that meet a condition of ‘financial sustainability.’

5.

The above measures deviate from the original stated Objects of the Scheme to ‘to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities.’ CRPD contains many rights that are immediately realisable under international law, including some explicitly named in the Explanatory Memorandum that was tabled with the National Disability Insurance Scheme Bill 2012 (‘especially Articles 3, 4, 7, 8, 12, 19, 20, 21, 22, 26, 28, 30, 31’). Importantly, at no point does CRPD condition rights with the qualifier that these rights should only be fulfilled where it is ‘financially sustainable’ to do so.

6.

Australia is a wealthy nation, with substantial capacity to fund social supports for people with disability to enable full social and economic participation. When Australia acceded to CRPD, it undertook to ‘take all appropriate steps’ to promote equality and prevent discrimination against people with disability, and as indicated above, implemented the National Disability Insurance Scheme as an important mechanism for realising the rights of people with disability. In this context, the rights of people with disability cannot be summarily limited in the name of the ‘financial sustainability’ of Scheme or because the projected costs of realising rights exceed initial expectations. Indeed, it should be noted that the Committee on the Rights of Persons with Disabilities General Comment No.5 on CRPD Article 19 (‘the right to live independently and be included in the community’) makes clear that States have an expansive obligation to ‘take deliberate and immediate steps to reallocate funding towards realizing the right of persons with disabilities to living independently in the community’ (CRPD/C/GC/5, 11).

7.

In so far as the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 explicitly seeks to limit reasonable and necessary supports to those which are ‘financially sustainable,’ it potentially represents a violation of a core duty: namely, non-retrogression in relation to economic, social and cultural rights. The Committee on the Rights of Persons with Disabilities, in General Comment No.5 on CRPD Article 19, have made clear that ‘retrogressive measures constitute a violation of article 19’ and that ‘States parties are prohibited from taking retrogressive measures with respect to the minimum core obligations of the right to live independently within the community’ (CRPD/C/GC/5,

Submission 1504

    10). On this matter, we note that the Parliamentary Joint Committee on Human Rights has
    already provided advice to Parliament in relation to the National Disability Insurance Scheme
      Amendment (Getting the NDIS Back on Track No. 1) Bill 2024, pointing out that limiting
    available supports to enable ‘financial sustainability’ may be at odds with the duty to avoid
    retrogressive measures: ‘While ensuring the financial sustainability of the NDIS is an
     important policy aim, given the high threshold that must be met to justify retrogressive
     measures under international human rights law, the committee considers that it is not clear
     whether this stated objective would, in itself, be considered legitimate for the purposes of
     international law’ (JCHM 2024, 42).

 8.  In summary, the National Disability Insurance Scheme was created with a clearly indicated
    purpose to give effect to Australia’s obligations under CRPD and other core human rights
       treaties. This legislative purpose was intentional in the design of the National Disability
    Insurance Scheme, reflecting the significance of the Scheme in responding to the
     discrimination and exclusion experienced by people with disability, and the demands by
    people with disability themselves that the Scheme adopt a rights-based approach. The
    National Disability Insurance Scheme Amendment (Securing the NDIS for Future
    Generations) Bill 2026 effectively proposes a change in the objects of the scheme where
      provision of supports to enable full participation of people with disability could be limited on
      the basis of the perceived ‘financial sustainability’ of the Scheme. This is at odds with the
       rights of people with disability as outlined in CRPD and other core treaties: the ‘financial
       sustainability’ of a support program is not a legitimate ground to remove supports that enable
     the right of people with disability to live independently within the community. In our view, to
     the extent that the Scheme fulfils obligations under international law to realise economic,
     social and cultural rights, such as that articulated in Article 19 CRPD, the proposed
   amendments represent a retrogressive measure which is prohibited under international law.

We hope that the above information is useful in informing the deliberations of the Senate Standing Committees on Community Affairs. For correspondence on this submission, please contact Associate Professor Dinesh Wadiwel at .

Yours sincerely

Associate Professor Dinesh Wadiwel Professor Linda Steele Human Rights and Socio-legal Studies Faculty of Law Sociology and Criminology The University of Technology Sydney The University of Sydney

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