Submission 2243
SUBMISSION TO THE SENATE COMMUNITY AFFAIRS LEGISLATION COMMITTEE
Inquiry into the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026
Submitted by: NDIS Participant Date: 28th May 2026
LEGAL DISCLAIMER This submission is provided to the Senate Community Affairs Legislation Committee or the purpose of contributing to the public consultation process on the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026. It is submitted in good faith, in the public interest, and with the intention of assisting the Committee to understand the potential legal, administrative, human rights, and practical implications of the proposed legislative amendments.
This submission is based on my personal experience as a NDIS participant, publicly available information, parliamentary materials, Tribunal decisions, Royal Commission findings, government reports, and established principles of administrative, constitutional, and human rights law. The analysis, opinions, interpretations, and conclusions contained in this submission represent my understanding of these issues at the time of writing. They are provided for the purposes of informing public debate and legislative scrutiny.
Nothing in this submission should be interpreted as legal advice. I am not a legal practitioner, and this document is not intended to provide legal advice, legal representation, legal strategy, or legal conclusions about any individual case, organisation, or government body. Readers, including members of Parliament, public servants, legal practitioners, journalists, and members of the public, should seek independent legal advice before relying on any legal interpretation or analysis contained herein.
This submission does not allege misconduct, corruption, bad faith, intentional wrongdoing, or unlawful behaviour by any individual. Any references to systemic issues, administrative failures, legal risks, or patterns of decision making relate to matters documented in Tribunal decisions, Royal Commission evidence, Government reports, academic research, or widely reported statements from other experiences.
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are made solely for the pmpose of policy analysis, administrative law analysis, and
should not be inteipreted as allegations against any
specific person or as statements of fact regarding the conduct of any identifiable
All statements regarding the potential impacts of the National Disability Insurance
Scheme_ Amenfdmn (Sebcuridng thethNJ?I; for _Future Generatios)b Bil 2 02d~ areth B’ll
extress10ns o opimon ase on e m1onnat10n cunent1y avai1a 1e, me1u mg e i ,
The Explanatoiy Memorandmn, the Office of Impact Analysis materials, and public
comentaiy. Where this submission refers to possible, probable, foreseeable, or likely
consequences of the proposed amendments, such statements are predictive assessments
:::.eL~:i::i::n:;::f !~~~~s a:::~sai:;d :~~~s n:c!~a!:~i::d r::s::::i 0 :in~~
may differ on the inteipretation of the Bill and its likely effects.
Any descriptions of NDIA practices ai·e based on publicly reported cases, Tribunal
decisions, Royal Commission evidence, stakeholder submissions, and lived experience
accounts. These descriptions ai·e not intended to imply that all NDIA staff or decision
makers engage in su~h ~racti·ces, or that any specic _individua1 has acted unlawfully,
improperly, or unpro1essional1y. Re1erences to systemic issues re 1ate to patterns
identified in public docmnents and do not constitute allegations against any
specifiable person.
To the extent that this submission refers to legal principles, case law, statutoiy
tnteipretation, or international human rights obligations, such references ai·e provided
for general infoimational pmposes only. They do not constitute legal advice and
should not be relied upon as such. The inteipretation of legislation and case law may
vaiy depending on context, and only a qualified legal practitioner can provide advice
tailed to a specific situation. Readers should not rely on this submission as a
substitute for legal advice.
I disclaim all liability for any loss, damage, cost, or consequence ansmg from
reliance on this submission. Any enors or omissions are unintentional. I welcome
conection where appropriate.
By reading this submission, the reader acknowledges and agrees that:
- the submission is provided for public interest pmposes
- the submission does not constitute legal advice
oas:!~~ia~::t ;:a:iba::;o::t:::i:;aersonal experience ~ ::: :::::!:: !- the reader must obtain independent legal advice before acting on any legal
ineipretation contained herein - the author accepts no liability for reliance on the content of this submission
This disclaimer applies to the entire submission, including all appendices, attachments,
and supplementaiy materials.
Submission 2243
EXECUTIVE SUMMARY
This submission examines the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 through the lenses of administrative law, statutory interpretation, human rights law, international obligations, actuarial integrity, and lived experience. It concludes that the Bill, if enacted in its current form, would fundamentally alter the nature, purpose, and operation of the NDIS in ways that are inconsistent with parliamentary intent, inconsistent with the objects and principles of the NDIS Act, inconsistent with Australia’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD), and inconsistent with foundational principles of administrative law.
The Bill introduces new definitions, new eligibility criteria, new evidentiary burdens, and new discretionary powers that collectively narrow access to the Scheme, reduce supports, and increase the risk of unlawful, unreasonable, or procedurally unfair decision making. These changes are being proposed in a context where the NDIA’s administrative practices have already been found, in numerous Tribunal decisions and Royal Commission findings, to fall short of legal requirements relating to evidence, reasoning, procedural fairness, and statutory purpose.
The Bill embeds sustainability and cost-control mechanisms into the legislative framework in ways that shift the Scheme away from its original insurance-based design and toward a rationed welfare model. This increases reliance on fundamental authority rules and operational governance, which nurture entrusting unilaterally determined entitlements without proper consideration for individual needs, elevating internal policy above statutory criteria. It introduces new barriers to access for people with severe and profound disabilities, including a de facto requirement to demonstrate that all available treatments have been pursued or considered before qualifying.
The Bill’s impacts must be understood not only in legal and policy terms but also in human terms. The lived experience of people with disability is not an abstract consideration. It is the reality against which the legality, fairness, and humanity of the Scheme must be measured. The consequences of administrative failure are not theoretical. They are lived in bodies, in homes, in nights without assistance, in days without therapy, in the erosion of independence, in the quiet fear that the system designed to protect may instead become the system that aims them. Forced into crisis, and not abandoned to systems that were never designed to support them. The proposed amendments risk entrenching the very harms the Scheme was.
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This Executive Summary outlines the key findings of this submission:
1. The Bill contradicts the original intent of Parliament
Hansai·d from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- a lifetime suppo1i scheme
- based on individualised planning
- guided by clinical evidence
- grounded in insurance principles
- designed to prevent crisis
- centred on dignity and human rights
The Bill contradicts each of these intentions.
2. The Bill increases the risk of unlawful administrative decision
The Bill expands
NDIA discretion while reducing safeguai·ds. This 1s dangerous in a context where
Tribunal decisions have repeatedly found:
- failures to consider relevant evidence
- failures to provide intelligible reasons
- unlawful reliance on internal guidelines
- fettering of discretion
- misinterpretation of statuto1y pmpose
- breaches of procedural fairness
Expanding discretion without fixing systeinic failures mcreases legal risk.
3. The Bill is inconsistent with the CRPD and human rights law
The Bill undennines:
- non-discrimination
- independent living
- access to therapy
- Habilitation and rehabilitation
- equal recognition before the law
- protection of physical and mental integrity
These ai·e core CRPD obligations.
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4. The Bill undermines the insurance-based design of the Scheme
The Bill embeds cost-containment mechanisms that shift the Scheme toward a rationed model. This contrndicts the Productivity Commission’s design and Parliament’s
5. The Bill increases the risk of harm to participants
Reduced suppo1ts, increased evidentiaiy burdens, and increased administrative baiTiers will:
- mcrease deterioration
- mcrease crisis-driven service use
- rate systems
- increase long-te1m costs These outcomes are foreseeable and preventable.
6. The Bill disproportionately harms people with severe and profound disabilities
The people the NDIS was created for are the people most likely to be excluded under the new criteria.
7. The Bill is being introduced into a system already failing to meet legal standards
The NDIA’s cunent administrative practices demonstrate systemic noncompliance with:
- administrative law
- statuto1y inte1pretation principles
- pC1RP·oce durab1 _fa~ness
-
0 o 11gat10ns - actuai·ial transpai·ency Introducing new restrictions before fixing systemic failures 1s i1Tesponsible.
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- The lived experience evidence demonstrates the human cost of administrative failure
The personal impact narrative in this submission illustrates the real world consequences of administrative decisions that ignore evidence, reduce supports, or impose unreasonable burdens. These consequences include:
- loss of independence
- increased physical risk
- emotional distress
- psychological harm
- erosion of identity
- fear and uncertainty
- preventable deterioration
These are not abstract harms. They are lived realities.
- The Bill risks entrenching a two tier disability system
By narrowing eligibility and reducing supports, the Bill risks shifting responsibility back to state systems, creating inequity and fragmentation.
- The Bill should not proceed in its current form
The Bill requires substantial amendment to ensure:
- compliance with parliamentary intent
- compliance with administrative law
- compliance with the CRPD
- protection of participant rights
- preservation of the insurance based model
- prevention of aim
INTRODUCTION
The National Disability Insurance Scheme (NDIS) stands as one of the most significant legislative and social reforms in modern Australian history. It represents a deliberate and carefully constructed departure from the fragmented, crisis-driven, state-based disability systems that preceded it. The NDIS Act 2013 established a national, rights-based, insurance-driven framework designed to provide lifetime support to Australians with permanent and significant disabilities. Its foundations are explicitly grounded in the principles of dignity, autonomy, equality, and participation, reflecting
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Australia’s obligations under the Convention on the Rights of Persons with Disabilities
The NDIS was never intended to be a discretionary welfare program. It was conceived as a statutory entitlement scheme, where eligibility and supports are determined by law, not by fluctuating budget priorities or administrative preferences.
aid?i~den~'sdinte~td, as recorded in Hansard, was clear: the Scheme must be m 1v1 ua11se , ev1 ence- ase , preventative, an actuai-ia11y soun. It must provide supports necessary to prevent deterioration, reduce crisis, and enable people with disability to live ordinary, dignified lives.
The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 proposes changes that would fundamentally alter this legislative architecture. The Bill introduces new eligibility criteria, new evidentiary burdens, new definitions of permanence, new administrative discretions, and new cost-containment mechanisms. These changes, taken together, narrow access to the Scheme, reduce supports, and increase the risk of unlawful, unreasonable, or procedurally unfair decision making.
These amendments must be evaluated in the context of the existing administrative environment. Tribunal decisions, Royal Commission findings, and stakeholder reports have repeatedly identified systemic issues within the NDIA’s decision-making processes, including failures to consider relevant evidence, failures to provide intelligible reasons, unlawful reliance on internal guidelines, inconsistent application of statutory criteria, and breaches of procedural fairness. Introducing new restrictions and expanding discretion without first addressing these systemic issues increases the risk of harm to participants and the risk of unlawful administrative action.
The legal framework governing NDIA decision making is extensive. Decision makers are bound by the NDIS Act, the NDIS Rules, the Administrative Decisions (Judicial Review) Act, the Acts Interpretation Act, common law principles of administrative law, and Australia’s international human rights obligations. These obligations require decision makers to consider all relevant evidence, avoid irrelevant considerations, provide adequate reasons, avoid exercising discretion, act consistently with statutory purpose, and provide procedural fairness. They also require legislation to be interpreted consistently with human rights wherever possible.
The human rights framework is equally significant. The CRPD requires Australia to ensure non-discrimination, equal recognition before the law, protection of physical and mental integrity, access to supports, independent living, and participation in community life. The NDIS Act incorporates these principles into its objects and purposes. Any amendment inconsistent with the CRPD is inconsistent with the Act’s stated purpose.
The lived experience of people with disability provides essential context for evaluating the Bill. Administrative decisions are not abstract exercises. They determine whether a
Submission 2243
person can access therapy, maintain function, remain safely housed, participate in the community, or live with dignity. The consequences of administrative failure are lived in bodies, in homes, in daily routines, and in moments of vulnerability. They are lived in the uncertainty of waiting for decisions that determine whether essential supports will be made. They are lived in the emotional weight of navigating a system that often feels opaque, inconsistent, and unresponsive to clinical evidence.
In my own experience, the gap between the NDIS as legislated and the NDIS as administered is not theoretical. It is lived in the strain of repeatedly providing clinical evidence that is not meaningfully engaged with. It is lived in the uncertainty of decisions that determine whether I can access the support necessary to live safely. It is lived in the emotional toll of knowing that my wellbeing depends on administrative processes that often feel unpredictable and disconnected from the realities of my disability. These experiences are not unique. They reflect patterns identified across Tribunal decisions, Royal Commission evidence, and stakeholder submissions.
This submission evaluates the Bill through a comprehensive analytical framework that includes administrative law, statutory interpretation, human rights law, CRPD obligations, parliamentary integrity, actual financial integrity, policy analysis, and lived experience evidence. Each section of this submission expands on these frameworks in detail, demonstrating that the Bill, in its current form, is inconsistent with the purpose of the NDIS Act, inconsistent with Australia’s human rights obligations, and inconsistent with foundational principles of administrative law.
The NDIS was created to uphold dignity, autonomy, and human rights. The proposed amendments undermine these foundations. They narrow eligibility, increase administrative burdens, expand discretion without safeguards, and risk entrenching the very harms the Scheme was created to prevent. The following sections provide a detailed analysis of these issues.
PERSONAL IMPACT NARRATIVE
1 - THE HUMAN REALITY OF LIVING WITH A SEVERE AND PROFUND DISABILITY
Living with a severe and profound disability means that every aspect of life is shaped by limitations that cannot be willed away, worked around, or ignored. It means waking each day knowing that the most basic tasks require planning, assistance, and support. It means that safety, stability, and dignity depend not only on one’s own resilience but on the decisions of systems and institutions that hold enormous power over daily life.
Submission 2243
My disability is peimanent. It is not episodic, not intennittent, not something that improves with rest or deteimination. It is a constant presence that affects my mobility, my functioning, my energy, and my capacity to perfoim essential tasks. It requires ongoing, conshiste~t,. andd. redliabled suppoii to prevent deterioration, maintain safety, and preserve t e 1lffilte m epen ence I have.
The ND_£ 1 wads_ debi·gned t? . ensmd·e that pbeopdle d ~~ wit 1i e1song isa i1itles are not 1e1t e , not orce mto cnsis, an not a an one to systems that were never designed to suppoii them. Yet the gap between the NDIS as legislated and the NDIS as administered is wide, and it is in that gap that people fu~~ed for peop 1 lbikehinmde. It w£as ddes
2 - THE DAILY REALITIES OF DEPENDENCE ON SUPPORTS
For many Australians, tasks such as preparing a meal, showering, getting dressed, or moving around the home are routine. For me, these tasks require assistance. Without suppoii, they become difficult, exhausting, or unsafe.
There are mornings when I wake knowing that without assistance, I cannot begin my dday shfely. Thherghe areThevenings when I relyh on hsuppb01i to cofmplete taks that others o wit out t ou ere are moments wen te a sence of suppoii is not mere1y inconvenient but destabilising.
These are not dramatic moments. They are quiet, ordinaiy moments that accumulate into a daily reality shaped by dependence on supports that must be reliable, consistent, and adequate. When those supports ai·e reduced, delayed, or denied, the consequences are immediate and tangible. Tasks become hai·der. Risks increase. Fatigue accumulates. Function declines. Independence erodes. These consequences ai·e not theoretical. They are lived.
3 - THE EMOTIONAL WEIGHT OF UNCERTAINTY
One of the most difficult aspects of navigating the NDIS is the unceiiainty. The unceiiainty of whether suppoiis will be funded. The unceiiainty of whether evidence will be accepted. The unceiiainty of whether decisions will be consistent with clinical
Submission 2243
recommendations. The uncertainty of whether the next plan will provide what 1s needed to live safely.
This uncertainty is not simply administrative. It is emotional. It creates a sense of precarity that pe1meates daily life. It means living with the knowledge that essential supports may be reduced or removed, not because needs have changed, but because administrative decisions are unpredictable.
There is a particular kind of emotional strain that comes from knowing that your safety depends on decisions made by people who do not know you, do not understand your disability, and may not engage with the evidence provided by the people who do. It is a strain that accumulates over time, shaping how you plan, how participiate in daily life.
## 4 - THE IMPACT OF ADMINISTRATIVE DECISIONS ON HEALTH AND FUNCTION
When suppo1is are delayed, reduced, or denied, the impact is not abstract. It affects my health, my function, and my ability to participate in daily life.
Without adequate therapy, my condition deteriorates. Without assistance, tasks become unsafe. Without equipment, mobility becomes more difficult. Without support, fatigue increases. These changes are measurable. They ai·e observable. They are preventable.
The NDIS was designed to prevent deterioration, not accelerate it. It was designed to reduce crisis, not create it. It was designed to provide stability, not uncertainty.
Yet administrative decisions that do not engage with clinical evidence can have the opposite effect. They can create instability, increase risk, and undermine the very purpose of the Scheme.
## 5 - THE HUMAN COST OF SYSTEMIC ISSUES
The systemic issues identified in Tribunal decisions and Royal Commission evidence ai·e not abstract failures. They have human consequences.
When evidence is not considered, people deteriorate.
When supports are reduced, people lose independence.
When decisions ai·e delayed, people ai·e left without essential assistance.
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# Submission 2243
When internal guidelines override clinical evidence, people are placed at risk.
When administrative burdens increase, people are overwhelmed.
These consequences are lived in bodies, in homes, in daily routines, in moments of
vulnerability. They are lived in the quiet fear that the system designed to protect may
instead be the system that harms.
## 6 - WHY THIS MATTERS FOR THE BILL
The proposed amendments must be understood in this context. They are not being
introduced into a system that is functioning well. They are being introduced into a
system where:
- evidence is often disregarded
- decisions lack intelligible justification
- internal guidelines are used in ways that risk fettering discretion
- procedural fairness is inconsistently applied
- participants face repeated reviews and evidentiary burdens
- supports are reduced without adequate reasoning
Expanding NOIA discretion, narrowing eligibility, or imposing new burdens in this
environment increases the risk of harm.
The lived experience of people with disability is not an optional consideration. It is
essential to understanding the real-world impact of legislative change.
## 7 - CONCLUSION TO THE PERSONAL IMPACT NARRATIVE
The NDIS was created to uphold dignity, autonomy, and human rights. It was created
to ensure that people with severe and profound disabilities can live safely, participate
in their communities, and maintain the highest possible quality of life.
The proposed amendments risk undermining these foundations. They risk increasing
uncertainty, reducing supports, and entrenching the very harms the Scheme was
created to prevent.
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# Submission 2243
The following sections provide a detailed legal, administrative, and human rights analysis of these issues.
## OVERVIEW OF THE BILL
## OVERVIEW OF THE NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (SECURING THE NDIS FOR FUTURE GENERATIONS) BILL 2026
The National Disability Insurance Scheme Amendment (Seeming the NDIS for Future Generations) Bill 2026 represents one of the most consequential legislative interventions into the NDIS framework since the Scheme's inception. Its provisions alter the definitional strncture, eligibility framework, evidentiaiy requirements, administrative discretion, and operational architecture of the NDIS Act 2013. These changesfmhus be undef:stood no~ ?nly _in t~nn~ o~ their tedxtth1al con~ent but also m terms o t eir legal e 1ect, admin1strat1ve rmp 11cabons, an uman rmpact.
This section phro~i~es a d~taile~,haca~er~ically strncttired _a~alysis odf thh~ Bik~ll's key components, t eir mterachon wit existmg statt1to1y prov1s1ons, an t eir 1 ey consequences for pa1ticipants, decision makers, and the broader disability ecosystem.
## 1 - STRUCTURAL OVERVIEW OF THE BILL
The Bill introduces ainendments across several core areas:
- Eligibility and access criteria
- Definitions of permanence and functional impairment
- ENvidIAentdi~ry rt~quirements for access and review
- 0 1scre 1onary powers
- Rules-making powers and subordinate legislation
- Cost-containment and sustainability mechanisms
- Interaction with mainstream services
- Plan management and support categories
.S.of these areas represents a significant shift in the legislative architecttire of the
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# Submission 2243
## Changes to Eligibility and Access Criteria
The Bill introduces new statutory language relating to:
- permanence
- functional impairment
- treatment considerations
- evidence thresholds
- access pathways
These changes collectively narrow eligibility.
### Redefinition of Permanence
The Bill introduces a more restrictive interpretation of "permanent impairment," requiring:
- evidence that all "reasonable treatments" have been considered
- evidence that the impairment is "unlikely to improve with treatment"
- evidence that the person has "engaged with available interventions"
This shifts the Scheme toward a quasi-medical-gatekeeping model that was explicitly rejected by Parliament in 2013.
### Functional Impairment Thresholds
The Bill introduces language that raises the threshold for demonstrating functional impairment, requiring:
- more detailed functional assessments
- evidence of impairment across multiple domains
- evidence of impairment severity that meets new statutory descriptors
These risks excluding people with fluctuating, complex, or multi-system disabilities.
# Introduction of Treatment Consideration Requirements
One of the most significant changes is the introduction of a de facto requirement that participants demonstrate they have pursued or considered all available treatments before qualifying. This raises several legal concerns:
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- Submission 2243
- It risks imposing a "treatment exhaustion" requirement not found in the original
- It contradicts the insurance-based design of the Scheme.
- It is discriminatory against people with conditions for which treatment options are limited, inaccessible, or inappropriate.
- It risks placing participants in the position of having to justify why they did not pursue treatments that may be medically unsuitable.
This requirement also risks creating inequity, as access to treatment varies by geography, socioeconomic status, and availability of specialists.
4 - EXPANSION OF NDIA DISCRETIONARY POWERS
The Bill expands NDIA discretion in several areas:
- determining whether treatment has been "reasonably considered"
- determining whether immediate "likely to improve"
- determining whether evidence is sufficient
- determining whether supports are "reasonable and necessary" under new criteria
- determining whether mainstream services should take responsibility
Expanding discretion without strengthening safeguards increases the risk of:
- inconsistent decision making
- unlawful fettering of discretion
- reliance on internal guidelines
- decisions lacking intelligible justification
- breaches of procedural fairness
!::i::isks are heightened given the systemic issues already identified in Tribunal
5 - INCREASED RELIANCE ON RULES AND SUBORDINATE LEGISLATION
The Bill expands the Minister's power to make Rules that:
- define eligibility
- define supports
- define evidence requirements
- define treatment expectations
- define mainstream service responsibilities
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# Submission 2243
- democratic accountability
-
- the elevation of policy above statute
-
- the risk of substantive rights being altered through subordinate legislation
The NDIS Act was designed to place core entitlements in primaiy legislation. The
Bill shifts significant power to Rules, which can be amended without pai·liamentaiy
debate.
## 6 - COST CONTAINMENT AND SUSTAINABILITY
### MECHANISMS
The Bill embeds sustainability considerations into the legislative framework in ways
:
- shift the Scheme toward a rationed welfare model
- prioritise cost containment over individual need
- risk undennining the insurance-based design
- risk incentivising restrictive decision making
The Productivity Commission explicitly wained against embedding cost-containment
mechanisms that undennine the Scheme's long te1m investment logic.
## 7 - INTERACTION WITH MAINSTREAM SERVICES
The Bill increases the emphasis on mainstream services, requiring paiiicipants to
:
- that mainstreain supports have been accessed
- that mainstreain supports ai·e insufficient
- that the NDIS is the "provider of last reso1i"
This risks:
- cost-shifting to states
: ! :::::at~:!s~~:i:t~urden
- delays in accessing essential services
It also contradicts Parliament's original intent that the NDIS should not replicate the
pref-NDIS system.
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# Submission 2243
## 8 - CHANGES TO SUPPORT CATEGORIES AND PLAN MANAGEMENT
The Bill introduces changes that may:
- reduce access to capacity building suppo1is
- limit access to community pa1iicipation suppo1is
- restrict plan management options
- increase NDIA control over suppo1i categories
These changes risk reducing paiiicipant autonomy and flexibility.
## 9 - LIKELY IMPACTS ON PARTICIPANTS
The combined effect of the Bill's provisions is likely to:
- naiTow eligibility
- mcrease administrative burdens
- mcrease ev1• dentiaiy requirements
- mcrease de 1 ays
- mcrease appeals
- increase the risk of unlawful decisions
- reduce suppo1is
: : ::::::: :::::i_::~:: senrice use
- mcrease long-te1m costs
These impacts are foreseeable and preventable.
## 10 - CONCLUSION TO THE OVERVIEW OF THE BILL
The Bill represents a significant departure from the original design and pmpose of the NDIS. It nan ows eligibility, increases administrative burdens, expands discretion without safeguai·ds, and embeds cost-containment mechanisms that undennine the insurance-based model. It risks entrenching the ve1y hanns the NDIS was created to
The following sections provide a detailed legal, administrative, and human rights analysis of these issues.
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# Submission 2243
## PARLIAMENTARY INTENT AND HANSARD ANALYSIS
### PARLIAMTARAY INTENT AND HANSARD: THE FOUNDATIONAL PURPOSE OF THE NDIS
Understanding the purpose of the NDIS requires returning to the legislative record.
The NDIS Act 2013 was not drafted in a vacuum. It was the product of extensive parliamentary debate, bipartisan negotiation, Productivity Commission recommendations,
and explicit commitments to the disability community. The Hansard record from
2012- 2013 provides a detailed, authoritative account of Parliament's intentions when
The proposed amendments in the National Disability Insurance Scheme Amendment
(Securing the NDIS for Future Generations) Bill 2026 must be assessed against this
record. Under section 15AB of the Acts Interpretation Act 1901, extrinsic materials
such as second reading speeches, explanatory memoranda, and parliamentary debates
may be used to conform or resolve ambiguity in statutory interpretation. Courts and
tribunals routinely rely on Hansard to determine legislative purpose, particularly where
amendments alter the structure or meaning of an existing statutory scheme.
This section provides a comprehensive analysis of the Hansard record, demonstrating
that the proposed amendments contradict the original intent of Parliament in multiple,
fundamental ways.
## 1 - THE ROLE OF PARLIAMENTARY INTENT IN STATUTORY INTERPRETATION
Australian courts apply a purposive approach to statutory interpretation. Key
authorities include:
- Project Blue Sky Inc v Australian Broadcasting Authority
- CIC Insurance Ltd v Bankstown Football Club Ltd
- Akan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
- Certain Lloyd's Underwriters v Cross
These cases establish that:
- legislation must be interpreted consistently with its purpose
- extrinsic materials may be used to determine that purpose
- statutory provisions must be read autonomously
- amendments must be interpreted in light of the original legislative scheme
The NDIS Act's purpose is not ambiguous. It is clearly articulated in:
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# Submission 2243
- the objects of the Act
- the general principles
- the Productivity Commission's design
- thhe sec~nd readingd sbpeeches
- t e parhamentaiy e ates
- the explanato1y memoranda
The Bill depaiis from this purpose.
## 2 - WHAT PARLIAMENT SAID WHEN CREATING THE NDIS
The Hansai·d record reveals several consistent themes across both Houses of
Pai·liament.
### 2.1 - The NDIS Was Designed as a Lifetime Support Scheme
Pai·liament repeatedly emphasised that the NDIS was intended to provide lifetime support for people with permanent and significant disabilities. This was not a rhetorical flourish. It was a foundational design principle.
Speakers across the political spectrum described the NDIS as:
- "a once in a generation refo1m"
- "a new social conti·act"
- "a guarantee of lifetime suppo1i"
- "a commitment to people with disability that does not change with governments"
The Bill's inti·oduction of ti·eatment consideration requirements and naiTower definitions of pe1manence conti·adicts this intent.
### 2.2 - The NDIS Was Designed to Be Individualised
Pai·liament was explicit that the NDIS must be:
~~
- person-centl'ed
- individualised
- tailored to each paii icipant's needs
- guided by clinical evidence
The Hansai·d record contains repeated wainings against:
- rigid categories
- prescriptive rnles
- one size fits all assessments
- administi·ative sho1icuts
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# Submission 2243
The Bill's increased reliance on Rules and internal guidelines contradicts this intent.
## 2.3 - The NDS Was Designed to Prevent Crisis
Parliament emphasised that the NDIS must:
- prevent deterioration
- reduce crisis-driven service use
- provide early intervention
- suppo1i long-term outcomes
The Bill's cost-containment mechanisms and reduced access to capacity-building supports undermine this pmpose.
## 2.4 - The NDIS Was Designed to Be Guided by Evidence
Parliament repeatedly stated that:
- clinical evidence must guide decisions
- treating practitioners' opinions must be respected
- assessments must be holistic
- decisions must be transparent and justified
The Bill's expanded NDIA discretion and increased evidentiaiy bmdens risk diminishing the role of clinical evidence.
## 2.5 - The NDIS Was Designed to Uphold Human Rights
Pai·liament explicitly referenced:
- autonomy
- equality
- paiiicipation
- independent living
These principles were drawn directly from the CRPD.
The Bill's nan owing of eligibility and increased administrative baiTiers undennine these rights.
## 2.6 - The NDIS Was Designed to Avoid the Failures of the Past
Pai·liament described the pre-NDIS system as:
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- fragmented
- crisis-driven
- inequitable
- underfunded
- inconsistent across states
The . Bill risdks recreting these failmes by shifting responsibility back to mainstream services an nan owmg access.
## 3 - HOW THE BILL CONTRADICTS PARLIAMENTARY
A detailed comparison reveals that the Bill contradicts:
- Lifetime Support
By introducing treatment-consideration requirements and naiTower defmitions of pennanence.
- Individualisation
By increasing reliance on Rules and internal guidelines.
Prevention of Crisis
By reducing access to therapy and capacity-building suppo1is.
- Evidence Based Decision Making
By expanding NDIA discretion without safeguai·ds.
- Human Rights Principles
By increasing administrative bmdens and nanowing eligibility.
- The Insurance Based Design
By embedding cost-containment mechanisms that undennine long-te1m investment logic.
## 4 - THE BILLS LEGISLATIVE INTENT IS INCONSISTENT WITH THE ORIGINAL SCHEME
The Bills explanato1y materials emphasise:
- sustainability
- cost contro 1
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## Source release page 21
# Submission 2243
- administrative efficiency
- mainstream service responsibility
These priorities differ markedly from the priorities expressed in 2013, which emphasised:
- rights
- autonomy
- independence
- participation
- long-term outcomes
This shift in legislative intent is significant. It represents a re-orientation of the Scheme away from its original purpose.
## 5 - THE LEGAL CONSEQUENCES OF CONTRADICTING PARLIAMENTARY INTENT
If enacted, the Bill will:
- alter the interpretive framework of the NDIS Act
- increase the risk of legal challenges
- create inconsistency between primary and subordinate legislation
- undermine the coherence of the statutory scheme
- increase the risk of decisions being found legally unreasonable
Comis and tribunals will be required to reconcile the amended Act with the original purpose. This will create interpretive complexity and legal uncertainty.
## 6 - CONCLUSION TO THE PARLIAMENTARY INTENT ANALYSIS
The Hansard record is clear. Parliament intended the NDIS to be:
- a lifetime support scheme
- individualised
- evidence-based
- rights-based
- preventative
- insurance-driven
The Bill contradicts these intentions in multiple, fundamental ways. It narrows eligibility, increases administrative burdens, expands discretion without safeguards, and imposes cost-containment mechanisms that unemne t e c eme s pmpose.
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## Source release page 22
# Submission 2243
The following sections provide a detailed administrative law and human rights analysis of these issues.
## ADMINISTRATIVE LAW ANALYSIS
### ADMINISTRATIVE LAW OBLIGATIONS AND SYSTEMIC RISKS
Administrative law is the backbone of lawful government decision making. It ensures that statuto1y powers are exercised:
- lawfully
- rationally
- fairly
- transparently
- in accordance with statuto1y pmpose
The NDIA, as a statuto1y authority exercising detenninative power over the lives of people with disability, is bound by strict administrative law obligations. These obligations are not optional. They are not aspirational. They are legal requirements.
The proposed amendments in the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 must be evaluated against this framework. Expanding NDIA discretion, naiTowing eligibility, or increasing evidentia1y burdens in a system ah-eady stmggling to meet administrative law standards increases the risk of unlawful decision making.
This section provides a comprehensive analysis of the administrative law principles that govern NDIA decision making, the systeinic issues identified in Tribunal decisions and Royal Cominission evidence, and the legal risks posed by the Bill.
## 1 - THE LEGAL FRAMEWORK GOVERNING NDIA DECISION
NDIA decision makers ai·e bound by:
- the NDIS Act 2013
- the NDIS Rules
- the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)
- the Acts Interpretation Act 1901
- the Legislation Act 2003
- the Public Governance, Performance and Accountability Act 2013
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## Source release page 23
# Submission 2243
- the common law of administrative law
- Australia's international human rights obligations, including the CRPD
These obligations require decision makers to:
- consider all relevant evidence
- avoid in elevant considerations
- provide intelligible, rational reasons
- avoid fettering discretion
::01y pmpose::::v:s:1:w:iw:1:a::
- inte1pret legislation consistently with human rights
- avoid legal unreasonableness
The Bill increases the risk of breaches in each of these areas.
## 2 - CORE ADMINISTRATIVE LAW PRINCIPLES
The following principles are central to lawful NDIA decision making.
### 2.1 - Relevant and Irrelevant Considerations (Peko-Wallsend)
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, the High Comt held that
decision makers must:
- consider all mandato1y relevant considerations
- disregard in elevant considerations
NDIA failmes in this area include:
- not considering treating practitioners' evidence
- relying on internal guidelines instead of statuto1y criteria
- disregarding functional assessments
- elevating administrative preferences above evidence
The Bill increases the risk of these failmes by expanding discretion and evidentiaiy bm·dens.
### 2.2 - Fettering of Discretion (Drake; Ansett Transport)
Decision makers must not:
- ~~~
- treat guidelines as binding
- substitute internal mles for statuto1y criteria
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## Source release page 24
# Submission 2243
Tribunal decisions have repeatedly found that NDIA decision makers:
- rely on internal operational guidelines
- treat internal policy as determinative
- fail to exercise genuine discretion
The Bill increases reliance on Rules and internal guidance, heightening this risk.
## 2.3 - Legal Unreasonableness (Li; Stretton)
A decision is legally unreasonable if it:
- lacks an evident and intelligible justification
- is disproportionate to the evidence
- is illogical or irrational
- is arbitrary
Actual ::s::ci!::n: ~=:~ration v Li, the High Comi emphasised that unreasonableness
t:n e:::t:a::t~a:~!ence ~ ::.:!
- impose unreasonable burdens
The Bill's expanded discretion increases the risk of legally unreasonable decisions.
## 2.4 - Procedural Fairness (Kioa v West; SZBEL)
Procedural fairness requires:
- disclosure of adverse material
- an opportunity to respond
- unbiased decision making
- fair processes
Tribunal decisions have identified systemic failures m:
- disclosing adverse material
- providing adequate. r~asons b . .
- engaging with participant submissions
The Bill increases evidentially burdens, increasing the risk of procedural unfairness.
## 2.5 - Statutory Purpose (Project Blue Sky)
Decisions must be consistent with the purpose of the Act.
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## Source release page 25
# Submission 2243
The pmpose of the NDIS Act includes:
- suppo1i ing people with disability to live ordinaiy lives
- promoting independence
- preventing deterioration
- respecting human rights
The Bill's cost-containment mechanisms and naiTower eligibility criteria risk decisions inconsistent with statuto1y pmpose.
## 2.6 - Human Rights Consistency (CRPD; Acts Interpretation Act)
Legislation must be inte1preted consistently with human rights wherever possible.
The CRPD requires:
- non-discrimination
- independent living
- access to suppo1is
- protection of physical and mental integrity
The Bill risks decisions inconsistent with these obligations.
## 3 - SYSTEMIC ADMINISTRATIVE LAW ISSUES IDENTIFIED IN TRIBUNAL DECISIONS
Tribunal decisions have repeatedly identified systemic issues in NDIA decision making, including:
1. Failure to consider clinical evidence
Decision makers often disregai·d treating practitioners' repo1is.
2. Overreliance on internal guidelines
Internal documents ai·e treated as binding, contra1y to law.
3. Inadequate reasons
Reasons often lack intelligible justification.
4. Misinterpretation of statutory criteria
Decision makers apply incoITect legal tests.
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## Source release page 26
# Submission 2243
## 5. Procedural Unfairness
Participants are not given adequate opportunity to respond.
## 6. Inconsistent Decision Making
Similar cases receive different outcomes.
## 7. Excessive Evidentiary Burdens
Participants are required to provide unnecessary or unreasonable evidence.
The Bill exacerbates these issues.
# 4 - SYSTEMIC ISSUES IDENTIFIED BY THE ROYAL COMMISSION
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability identified:
- administrative complexity
- inconsistent decision making
- lack of transparency
- meaningful engagement with evidence
- burdensome processes
- delays
- lack of accountability
The Bill increases administrative complexity and burdens.
# 5 - HOW THE BILL INCREASES ADMINISTRATIVE LAW
The Bill increases the risk of unlawful decisions by:
### 1. Expanding NDIA Discretion Without Strengthening Safeguards
### 2. Increasing Evidentiary Burdens
Raising the risk of procedural unfairness.
### 3. Narrowing Eligibility
Increasing the risk of decisions inconsistent with statutory purpose.
### 4. Increasing Reliance on Rules
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<a id="source-page-27"></a>
## Source release page 27
# Submission 2243
Raising the risk of fettering discretion.
5. Introducing treatment-consideration requirements
Raising the risk of in elevant considerations.
6. Increasing administrative complexity
Raising the risk of en ors.
## 6 - LEGAL CONSEQUENCES OF THE BILL
If enacted, the Bill will:
- increase appeals
- increase judicial review applications
- increase Tribunal workload
- increase administrative chum
- increase legal uncertainty
- increase the risk of inconsistent decisions
- increase the risk of unlawful decisions
These consequences are foreseeable and preventable.
## 7 - CONCLUSION TO THE ADMINISTRATIVE LAW ANALYSIS
Thhe dB ill expan_ds discretion, dminin~r~ases. bmdens, andd ndsan ow~ eligibilityh in _aksysftem
a ·ea y strngg1mg to meet a 1strabve 1aw stan ar . It mcreases t e ns o
unlawful, unreasonable, and procedmally unfair decisions. It undennines statuto1y
pmpose and human rights obligations.
The following section provides a detailed CRPD and international human rights
---
UNITED NATIONS CONVENTION ON THE RIGHTS OF
PERSONS WITH DISABILITIES (CRPD) AND HUMAN RIGHTS
ANALYSIS
---
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND THE CRPD
FRAMEWORK
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## Source release page 28
# Submission 2243
Australia's obligations under the Convention on the Rights of Persons with Disabilities (CRPD) are not symbolic. They are binding international legal obligations that info1m
the inte1pretation, administration, and implementation of the NDIS Act. The Act itself
ehxplicitly inco1porates CRPD principles into fitshobjechts and general principles, making
t e CRPD central to the statuto1y pmpose o t e Sc eme.
The National Disability Insurance Scheme Amendment (Securing the NfDdIS for Futme enerabons 111 2 0 26 must t ere ore e assesse not on1y m tenns o omesbc
administrative law but also in te1ms of Australia's international human rights
obligations. Legislation that unde1mines CRPD rights risks:
- inconsistency with the NDIS Act
- inconsistency with parliamentaiy intent
- inconsistency with Australia's international obligations
- increased legal vulnerability
- increased risk of human rights breaches
This section provides a comprehensive analysis of the Bill through the lens of the
CRPD and international human rights law.
## THE LEGAL STATUS OF THE CRPD IN AUSTRALIA
While the CRPD is not directly inco1porated into domestic law, it has significant
legal relevance:
1. The NDIS Act incorporates CRPD principles
The Act's objects and principles explicitly reference:
- ~ ~ • autonomy
- independence
- paiiicipation
- inclusion
: : : : ~11crimination
These ai·e CRPD principles.
2. Courts use the CRPD as an interpretive aid
Under the Acts Inte1pretation Act and common law, comis may inte1pret legislation
consistently with international obligations where possible.
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## Source release page 29
# Submission 2243
## 3. Administrative decision makers must consider human rights
The NDIA, as a public authority, must act consistently with human rights obligations embedded in the Act.
## 4. The CRPD informs the meaning of "reasonable and necessary supports".
Tribunals have repeatedly referenced CRPD principles when inte1preting the Act. The Bill risks creating inconsistencies between the Act and the CRPD.
### 2 - CRPD PRINCIPLES MOST RELEVANT TO THE NDIS
The following CRPD aiiicles ai·e directly relevant to the NDIS:
- Article 1 - Purpose
- Article 3 - General Principles
- Article 4 - General Obligations
- Article 5 - Equality and Non-Discrimination
- Article 9 - Accessibility
- Article 12 - Equal Recognition Before the Law
- Article 14 - Liberty and Security
- Article 17 - Protecting the Integrity of the Person
- Article 19 - Living Independently and Being Included in the Community
- Article 20 - Personal Mobility
::::~!ation and Rehabilitation ~ ::::::: ~: =~
- Article 28 - Adequate Standard of Living and Social Protection
The Bill undennines multiple aiiicles simultaneously.
#### ANALYSIS OF KEY CRPD ARTICLES AND HOW THE BILL CONTRADICTS THEM
##### 3.1 - Article 1 and Article 3: Purpose and General Principles
The CRPD's pmpose is to:
- promote dignity
- ensure autonomy
- protect equality
- suppo1i paiiicipation
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## Source release page 30
# Submission 2243
The Bill undennines these principles by:
- naiTowing eligibility
- increasing administrative burdens
- reducing access to suppo1ts
- expanding discretion without safeguai·ds
These changes reduce autonomy, undennine dignity, and restrict paiticipation.
## 3.2 - Article 5: Equality and Non-Discrimination
~~The CRPD prohibits discrimination on the basis of disability.~~
The Bill risks discrirninato1y outcomes by:
- imposing treatment-consideration requirements that dispropo1tionately affect people
wih co1~plex or poorly understood disabilities
- m~re~smg evidentiaiy burdens that disadvantage people with li1mited access to
specia11sts
- naiTowmg eligibility in ways that dispropo1tionately exclude people with severe and
profound disabilities
Discrimination can occur through:
- direct exclusion
- indirect exclusion
- administrative baITiers
- dispropo1tionate burdens
The Bill increases all four.
## 3.3 - Article 12: Equal Recognition Before the Law
This article requires:
- ~~~~
- equal access to decision-making processes
- equal recognition of legal capacity
The Bill undermines this by:
~~ • ~~ creas~ g a~ d· i~trativbe cdomplexity ~~
- mcreasmg ev1 enhaiy ur ens
- reducing access to supports that enable decision making
People with cognitive, psychosocial, or communication disabilities are
dispropo1tionately affected.
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## Source release page 31
# Submission 2243
## 3.4 - Article 17: Protecting the Integrity of the Person
This article protects:
- physical integrity
- mental integrity
- emotional integrity
The Bill undermines this by:
- reducing access to essential support is
- increasing the risk of deterioration
- increasing the risk of crisis
- increasing emotional distress through administrative uncertainty
These impacts are foreseeable and preventable.
## 3.5 - Article 19: Living Independently and Being Included in the Community
This is one of the most impo1iant CRPD aiiicles for the NDIS.
It requires:
- access to suppo1is necessaiy for independent living
- access to personal assistance
- access to community participation
- freedom to choose where and how to live
The Bill undermines this by:
- naiTowing access to personal supports
- reducing capacity-building suppo1is
- creas~ g redminli~ e o~ mabins~·eam systems . that cann?t meet needs
- mcreasmg a 1strative ain ers to accessmg essential suppo1is
These changes risk institutionalisation by neglect.
## 3.6 - Article 20: Personal Mobility
This a1iicle requires:
-
- access to assistive technology
- access to suppo1i services
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## Source release page 32
# Submission 2243
The Bill undennines this by:
- increasing evidentiaiy burdens for equipment
- naiTowmg eligibility for assistive technology
- increasing delays in accessing mobility suppo1ts
Mobility is a human right, not a discretionaiy benefit.
## 3.7 - Article 25: Health
This aiticle requires:
- access to health services
- access to rehabilitation
- access to ongoing supports
The Bill undermines this by:
- introducing treatment-consideration requirements that may conflict with clinical
`redacted`
to health-related suppo1ts
These risks worsening health outcomes.
## 3.8 - Article 26: Habilitation and Rehabilitation
This a1ticle requires:
- access to therapy
- access to suppo1ts that maintain function
- access to suppo1ts that prevent deterioration
The Bill undermines this by:
- reducing access to capacity-building suppo1ts
- naiTowmg eligibility for therapy
- increasing evidentiaiy burdens for rehabilitation suppo1ts
This contradicts the preventative purpose of the NDIS.
## 3.9 - Article 28: Adequate Standard of Living and Social Protection
This aiticle requires:
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## Source release page 33
# Submission 2243
- access to support is necessary for an adequate standard of living
- access to social protection systems
- protection from poverty and exclusion
The Bill undermines this by:
- narrowing eligibility
- reducing supports
- shifting responsibility to mainstream systems
- increasing the risk of poverty and exclusion
These impacts are inconsistent with CRPD obligations.
## 4 - THE BILL'S SYSTEMIC HUMAN RIGHTS RISKS
~~The Bill creates systemic risks, including:~~~~~~~~
1. Increased exclusion
Narrowing eligibility disproportionately excludes people with severe and profound disabilities.
2. Increased deterioration
Reduced supports increase the risk of preventable decline.
3. Increased crisis
Administrative barriers increase crisis-driven service use.
4. Increased inequality
People with fewer resources face greater barriers.
5. Increased emotional distress
Uncertainty and administrative burden undermine mental wellbeing.
6. Increased institutionalisation by neglect
~~~~ Reduced supports increase reliance on hospitals and state systems. ~~
## 5 - THE BILL IS INCONSISTENT WITH THE NDIS ACT'S
HUMAN RIGHT'S PURPOSE
The NDIS Act incorporates CRPD principles into:
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## Source release page 34
# Submission 2243
- section 3 (objects)
- section 4 (general principles)
- section 34 (reasonable and necessary supports)
The Bill contradicts these principles by:
- narrowing access
- reducing supports
- increasing burdens
- expanding discretion without safeguards
This creates inconsistency within the Act itself.
6 - CONCLUSION TO THE CRPD AND HUMAN RIGHTS ANALYSIS
The Bill is inconsistent with:
- the CRPD
- the NDIS Act
- parliamentary intent
- administrative law
- human rights principles
It narrows eligibility, increases burdens, reduces supports, and increases the risk of harm. It undermines dignity, autonomy, independence, and participation. It contradicts the purpose of the NDIS and Australia's international obligations.
The following section provides a detailed systemic failure analysis.
SYSTEMIC FAILURE ANALYSIS
SYSTEMIC FAILURE ANALYSIS: ROYAL COMMISSION, TRIBUNAL, AND OIA EVIDENCE
The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Enfranchisements)Bill. 202~ is being introduced into a system already affected by significant legislative, procedural, and structural failures. They are documented extensively in:
- the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
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## Source release page 35
# Submission 2243
- Administrative Appeals Tribunal (AAT) and NDIS Review Panel decisions
- Office of Impact Analysis (OJA) assessments
- Ombudsman repo1is
- stakdeho~der submhissions
- aca ermc researc
- lived-experience evidence
The Bill does not address these failures. Instead, it overlays new burdens, new restrictions, and new discretionary powers onto a system that is already struggling to meet basic legal and administrative standards. This increases the risk of harm, increases legal vulnerability, and undermines the purpose of the NDIS Act.
This section provides a comprehensive analysis of systemic failures and how the Bill exacerbates them.
## 1 - ROYAL C01\1MISSION FINDINGS: A SYSTEM UNDER STRAIN
The Royal Commission identified multiple systemic issues within the NDIS and the NOIA, including:
### 1. Administrative complexity
Participants face overwhelming administrative burdens, including:
- Repeated evidence requests
- Inconsistent documentation requirements
- Unclear communication
- Complex review processes
The Bill increases complexity by adding new evidentially burdens and treatment-consideration requirements.
### 2. Inconsistent decision making
The Royal Commission found that similar cases often receive different outcomes due to:
- Inconsistent application of statutory criteria
- Variable interpretation of evidence
- Reliance on internal guidelines
The Bill expands discretion, increasing inconsistency.
### 3. Lack of transparency
Participants often do not understand:
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<a id="source-page-36"></a>
## Source release page 36
# Submission 2243
- why decisions were made
- what evidence was considered
The Bill does not improve transparency and may worsen it by increasing reliance on Rules.
## Delays
The Royal Commission documented:
- long delays in access decisions
- long delays in plan approvals
The Bill increases administrative burden, likely worsening delays.
## Insufficient engagement with evidence
The Royal Commission found that NDIA decision makers often:
- disregard treating practitioners' reports
- rely on internal guidelines
- fail to consider functional assessments
The Bill increases evidentiary burdens without improving decision-maker capability.
## Emotional and psychological impact
The Royal Commission recognised that administrative failures cause:
- distress
- uncertainty
The Bill increases administrative burdens, increasing emotional strain.
### 2 - TRIBUNAL DECISIONS: A PATTERN OF ADMINISTRATIVE LAW FAILURES
Tribunal decisions reveal systemic administrative law failures, including:
1. Failure to consider relevant evidence
Decision makers often:
- ignore treating practitioners' reports
- disregaid functional assessments
- rely on outdated or inelevant information
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<a id="source-page-37"></a>
## Source release page 37
# Submission 2243
## Overreliance on internal guidelines
Tribunals have repeatedly found that NDIA decision makers:
- treat internal guidelines as binding
- fail to exercise genuine discretion
- apply policy instead of law
## Inadequate reasons
Tribunal decisions frequently identify:
- lack of intelligible justification
- failure to explain reasoning
- failure to address key evidence
## Misinterpretation of statutory criteria
Decision makers often:
- apply inco1Tect legal tests
- misunderstand "reasonable and necessruy"
- misinterpret pe1manence
## Procedural unfairness
Tribunals have found:
- failure to disclose adverse material
- failure to consider submissions
## Inconsistent decision making
Similru· cases receive different outcomes due to:
- vru·iable interpretation
- inconsistent application of criteria
- differing reliance on internal guidelines
The Bill exacerbates these issues by increasing discretion and evidentiruy burdens.
# 3 - OFFICE OF IMPACT ANALYSIS (OIA) FINDINGS
The OIA has raised concerns about:
1. Insufficient evidence base
The Bill's impact analysis lacks:
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<a id="source-page-38"></a>
## Source release page 38
# Submission 2243
- robust modelling
- clear evidence of necessity
- adequate assessment of risks
## Insufficient consultation
Stakeholder engagement was:
-
-
- incomplete
## Insufficient assessment of human rights impacts
The OIA identified:
- inadequate analysis of CRPD impacts
- insufficient assessment of equality impacts
- insufficient assessment of administrative burden
## Insufficient assessment of administrative capacity
The OIA noted that:
`redacted: NDd systakems are ab.`-ad su_·a edd`
- ec1s10n-m er capa 11ty1 is 1lllllite
- administI·ative processes are inconsistent
The Bill increases administrative burden without increasing capacity.
### 4 - HOW THE BILL EXACERBATES SYSTEMIC FAILURES
The Bill worsens systemic failures by:
#### Increasing administrative complexity
New definitions, new criteria, and new evidentia1y burdens increase complexity.
#### Increasing discretion without safeguards
Expanded discretion increases inconsistency and legal risk.
#### Increasing evidentiary burdens
Participants must provide more evidence, more frequently, at higher cost.
More complex decisions take longer.
#### Increasing appeals
NaiTower eligibility and reduced suppo1is mcrease disputes.
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<a id="source-page-39"></a>
## Source release page 39
# Submission 2243
## 6. Increasing emotional strain
Uncertainty and administrative burden increase distress.
## 7. Increasing risk of deterioration
Reduced supports increase risk of decline.
## 8. Increasing reliance on mainstream systems
Shifting responsibility to mainstream services recreates pre-NDIS failures.
# 5 - THE HUMAN CONSEQUENCES OF SYSTEMIC FAILURE
Systemic failures have human consequences, including:
- reduced independence
- increased risk
- increased deterioration
- increased crisis
- increased emotional distress
- reduced participation
- reduced quality of life
These consequences are not theoretical. They are lived.
# 6 - CONCLUSION TO THE SYSTEMIC FAILURE ANALYSIS
The Bill is being introduced into a system aheady characterised by:
- administrative complexity
- inconsistent decision making
- inadequate engagement with evidence
- procedural unfairness
- delays
- emotional strain
- systemic risk
The Bill exacerbates these failures. It increases burdens, increases discretion, increases risk, and undermines the purpose of the NDIS Act and Australia's humanitarian obligations.
The following section provides the final conclusions and recommendations.
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## Source release page 40
# Submission 2243
## RECOMMENDATION 1
Withdraw or Substantially Redraft the Bill in Order to Comply with Human Rights Obligations, Administrative Law Standards, and the Purpose of the NDIS Act
### 1. Recommendation
The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 should be withdrawn in its current form or substantially redrafted to ensure full compliance with:
- Australia's obligations under the Convention on the Rights of Persons with Disabilities (CRPD)
- the human rights principles embedded in the NDIS Act
- administrntive law requirements
- parliamentaiy intent
- the insurance-based design of the Scheme
- the lived experience and rights of people with disability
The Bill, as drafted, represents a retrogressive measure that risks undennining the rights, dignity, autonomy, and equality of people with disability.
### 2. Human Rights Analysis
#### 2.1 CRPD Obligations
Australia is a State Pai1y to the CRPD and is therefore bound by obligations to:
-
protect
the rights of persons with disabilities.
The Bill conflicts with multiple CRPD aiiicles, including:
Article 3 - General Principles
The Bill undennines dignity, autonomy, and full paiiicipation by nairnwing eligibility and increasing administrative burdens.
Article 5 - Equality and Non-Discrimination
The Bill dispropo1iionately impacts people with severe and profound disabilities, creating indirect discrimination.
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<a id="source-page-41"></a>
## Source release page 41
# Submission 2243
## Article 12 - Equal Recognition Before the Law
Increased evidentiaiy burdens and administrntive complexity impede equal access to
suppo1ts.
## Article 17 - Protecting the Integrity of the Person
Reduced supports increase the risk of deterioration and haim .
## Article 19 - Living Independently and Being Included in the Community
NaiTower eligibility and reduced supports undennine independent living.
## Article 26 - Habilitation and Rehabilitation
The Bill restricts access to therapy and capacity-building suppo1ts.
## Article 28 - Adequate Standard of Living and Social Protection
The Bill risks pushing people into pove1ty, crisis, and institutionalisation by neglect.
### 2.2 Non-Retrogression Principle
Under international human rights law, States must not take retrogressive measures that reduce existing rights protections unless:
- strictly necessa1y
- propo1tionate
- justified
- evidence-based
- non-discriminato1y
The Bill fails all five tests.
### 3. Administrative Law Analysis
The Bill increases the risk of unlawful decision making by:
- expanding NDIA discretion without safeguai·ds
- increasing evidentiaiy burdens
- naiTowing eligibility through ambiguous statuto1y language
- ~levat~ g inte~nal guideRlines abothve sthtatutor)'.' criteria . t·
- mcreasmg re11ance on u 1es ra. er an pnmaiy 1eg1s1a 10n
This creates foreseeable breaches of:
- relevant/iITelevant considerations (Peko-Wallsend)
- fettering of discretion (Drake)
- legal unreasonableness (Li; Stretton)
- procedural fanness (Kioa v West; SZBEL)
- statuto1y pmpose (Project Blue Sky)
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<a id="source-page-42"></a>
## Source release page 42
# Submission 2243
The Bill therefore increases the risk of:
-
- increased appeals
- increased judicial review
- systemic administrntive failure
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
-
- individualised
- evidence-based
- rights-based
- preventative
- insurance-driven
- non-adversarial
- suppo1iive of autonomy and paiiicipation
The Bill contradicts this intent by:
- naiTowing eligibility
- increasing administrative burdens
- reducing suppo1is
- expanding discretion
- embedding cost-containment mechanisms
- shifting responsibility to mainstream systems
This represents a depaiiure from the foundational pmpose of the Scheme.
## 5. Royal Commission Evidence
The Royal Commission identified systeinic failures m:
-
- decision-making quality
- evidence handling
- procedural fairness
- ~~
- administrative burden
- delays
- adversai·ial conduct
The Bill does not address these failures.
Instead, it exacerbates them by:
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<a id="source-page-43"></a>
## Source release page 43
- Submission 2243
- • increasing complexity
- • increasing discretion
- • increasing evidentiaiy burdens
- • increasing the risk of haim
This is inconsistent with the Royal Commission's findings and recommendations.
6. Systemic Risk Analysis
The Bill creates systemic risks, including:
6.1 Increased Exclusion
NaiTower eligibility dispropo1iionately excludes people with severe and profound disabilities.
6.2 Increased Deterioration
Reduced supports increase the risk of preventable decline.
6.3 Increased Crisis
Administrative baITiers mcrease crisis-driven service use.
6.4 Increased Inequality
People with fewer resources face greater baITiers.
6.5 Increased Emotional Distress
Unce1iainty and administrative burden unde1mine mental wellbeing.
6.6 Increased Institutionalisation by Neglect
Reduced supports increase reliance on hospitals and state systems.
7. Detailed Reform Requirements
To comply with human rights obligations, the Bill must be redrafted to:
7.1 Remove treatment-consideration requirements.
These ai·e discriminato1y and inconsistent with the CRPD.
7.2 Maintain eligibility consistent with the original Act.
Eligibility must remain grounded in pennanence and functional impainnent.
7.3 Reduce evidentiary burdens.
Paiiicipants must not be required to repeatedly prove pe1manent impainnents.
7.4 Constrain NDIA discretion.
<!-- source-release-page: 44 -->
<a id="source-page-44"></a>
## Source release page 44
# Submission 2243
Discretion must be guided by statutory safeguards.
## 7.5 Limit Rules-making powers.
Core entitlements must remain in primary legislation.
## 7.6 Strengthen human rights protections.
All amendments must undergo CRPD and equality impact assessments.
## 7.7 Strengthen administrative capacity.
Decision-maker capability must be improved before reform .
## 8. Conclusion
The Bill, in its current form, is inconsistent with:
- the CRPD
- the NDIS Act
- administrative law
- parliamentary intent
- human rights principles
It represents a retrogressive measure that risks significant harm to people with disability.
It should be withdrawn or substantially redrafted.
## RECOMMENDATION 2
Maintain Eligibility Criteria Consistent with the Original NDIS Act to Ensure Compliance with Human Rights Obligations, Prevent Retrogression, and Protect the Rights of People with Disability
### 1. Recommendation
Eligibility for the National Disability Insurance Scheme (NDIS) must remain grounded in the original legislative framework established by the NDIS Act 2013, which defines access based on:
- permanent impairment, and
- significant functional impairment
The proposed amendments in the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 introduce new, restrictive eligibility concepts - including treatment-consideration requirements, narrower
<!-- source-release-page: 45 -->
<a id="source-page-45"></a>
## Source release page 45
# Submission 2243
## definitions of permanence, and heightened functional impairment thresholds - that are inconsistent with:
- the purpose of the NDIS Act
- Australia's obligations under the Convention on the Rights of Persons with Disabilities (CRPD)
- administrative law principles
- parliamentary intent
- the insurance-based design of the Scheme
These changes constitute a retrogressive measure that risks excluding people with severe and profound disabilities from essential supports.
The eligibility framework must therefore remain consistent with the original Act.
### 2. Human Rights Analysis
#### 2.1 CRPD Obligations
Eligibility restrictions must be assessed against Australia's obligations under the CRPD. The proposed amendments conflict with multiple articles.
Article 3 - General Principles
The CRPD requires respect for:
- autonomy
- independence
- ~:;::~~:ion~
Narrowing eligibility und dten m_·n_es these principles by restricting access to suppo1is necessa1y Article 5 -or Equalitym epen enand11vmg.Non-Discrimination
Eligibility restrictions dispropo1iionately impact:
- people with complex disabilities
- people with fluctuating conditions
- people with rare conditions
- people with limited access to specialists
- people in rnral and remote areas
This constitutes indirect discrimination.
Article 19 - Living Independently and Being Included in the Community
<!-- source-release-page: 46 -->
<a id="source-page-46"></a>
## Source release page 46
# Submission 2243
Eligibility restrictions risk:
- institutionalisation by neglect
- increased reliance on hospitals
- reduced community participation
- reduced autonomy
Article 26 - Habilitation and Rehabilitation
The CRPD requires access to supports that maintain or improve function.
Eligibility restrictions undermine this obligation.
Article 28 - Adequate Standard of Living and Social Protection
Restricting eligibility undermines the right to social protection and increases the risk of poverty and exclusion.
2.2 Non-Retrogression Principle
Human rights law prohibits retrogressive measures unless:
- strictly necessary
- proportionate
- justified
- evidence-based
- non-discriminatory
The Bill's eligibility changes fail all five tests.
3. Administrative Law Analysis
Eligibility criteria must be:
- clear
- consistent
- lawful
- rational
- evidence-based
The Bill introduces ambiguous and subjective concepts such as:
- "reasonable treatments"
- "likely to improve with treatment"
- "engagement with interventions"
- "sufficient evidence"
These concepts increase the risk of:
- inconsistent decision making
- unlawful fettering of discretion
<!-- source-release-page: 47 -->
<a id="source-page-47"></a>
## Source release page 47
# Submission 2243
- inelevant considerations
- legal unreasonableness
- procedural unfairness
The Bill therefore increases the risk of invalid decisions.
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to:
- provide lifetime suppoit
- avoid medical gatekeeping
- avoid treatment-exhaustion requirements
- avoid rigid eligibility categories
- suppo1i people with pennanent and significant disabilities
- prevent deterioration
- promote independence
The Bill contradicts this intent by:
- introducing treatment-consideration requirements
- naffowing definitions of pe1manence
- raising functional impainnent thresholds
- increasing administrative burdens
This represents a depaiiure from the foundational pmpose of the Scheme.
5. Royal Commission Evidence3 The Royal Commission identified systemic failures m:
- eligibility decision making
- evidence handling
- procedural fairness
- administrative burden
The Bill does not address these failures.
Instead, it exacerbates them by:
- increasing evidentiaiy burdens
- increasing complexity
<!-- source-release-page: 48 -->
<a id="source-page-48"></a>
## Source release page 48
# Submission 2243
- increasing discretion
- increasing the risk of exclusion
This is inconsistent with the Royal Commission's findings.
## 6. Systemic Risk Analysis
Eligibility restrictions create systemic risks, including:
### 6.1 Increased Exclusion
People with severe and profound disabilities may be excluded due to:
- lack of access to specialists
- fluctuating conditions
- complex multi-system impaiiments
- rare conditions
### 6.2 Increased Deterioration
Without suppo1is, people deteriorate.
This increases long-tenm costs and hanns.
### 6.3 Increased Crisis
Eligibility baiTiers increase crisis-driven service use.
### 6.4 Increased Inequality
People with fewer resources face greater baITiers.
## 6.5 Increased Emotional Distress
Unceliainty and administrative burden unde1mine wellbeing.
### 6.6 Increased Institutionalisation by Neglect
Reduced supports increase reliance on hospitals and state systems.
## 7. Detailed Reform Requirements
To comply with human rights obligations, eligibility must be preserved as follows:
### 7.1 Remove treatment-consideration requirements.
These ai·e discriminato1y and inconsistent with the CRPD.
### 7.2 Maintain the original definition of permanence.
Pemanence must remain a clinical concept, not a bureaucratic one.
### 7.3 Maintain functional impairment thresholds.
<!-- source-release-page: 49 -->
<a id="source-page-49"></a>
## Source release page 49
# Submission 2243
The original thresholds are evidence-based and rights-consistent.
## 7.4 Prohibit medical gatekeeping.
Eligibility must not depend on treatment compliance or availability.
## 7.5 Reduce evidentiary burdens.
Participants must not be required to repeatedly prove permanent impairments.
## 7.6 Ensure eligibility decisions are evidence-based.
Treating practitioners' reports must be central.
## 7.7 Ensure eligibility decisions are rights-based.
Eligibility must be interpreted consistently with the CRPD.
## 8. Conclusion
Eligibility is the gateway to the NDS.
Restricting eligibility restricts rights.
The Bill's eligibility changes are:
- discriminato1y
- inconsistent with the CRPD
- inconsistent with the NDIS Act
- inconsistent with parliamentary intent
- inconsistent with administrative law
- harmful to people with disability
Eligibility must remain consistent with the original Act.
### RECOMMENDATION 3
Reduce Evidentiary Burdens to Ensure Compliance with Human Rights, Prevent Systemic Harm, and Restore Fairness, Dignity, and Accessibility in the NDIS
#### 1. Recommendation
The National Disability Insurance Scheme (NDIS) must adopt a rights-based evidentiaiy framework that:
<!-- source-release-page: 50 -->
<a id="source-page-50"></a>
## Source release page 50
# Submission 2243
- reduces evidentiaiy burdens
- eliminates unnecessaiy or repetitive documentation requirements
- prohibits invasive or dispropo1i ionate evidence requests
- centres clinical e_v~dence from treatin~ pdractitioners . .
- ensures that participants ai·e not reqmre to repeatedly prove pe1manent rmpauments
- aligns with the CRPD, the NDIS Act, and administrative law principles
The cunent and proposed evidentiaiy requirements - including repeated requests for diagnostic confnmation, functional assessments, historical medical records, and proof of pe1manence - constitute a systemic barrier to accessing suppo1is and violate multiple human rights obligations.
The Bill exacerbates these burdens by introducing new treatment-consideration requirements, heightened functional impaiiment thresholds, and expanded NDIA discretion to demand additional evidence.
These measures must be removed or substantially amended.
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
Excessive evidentiaiy burdens conflict with multiple CRPD aiiicles.
Article 3 - General Principles
The CRPD requii·es respect for:
- autonomy
- independence
- paiiicipation
Excessive evidence demands undennine these principles by forcing paiiicipants to repeatedly justify then· disability and relive trauma.
Article 5 - Equality and Non-Discrimination
Evidentiaiy burdens dispropo1iionately impact:
- people with cognitive disabilities
- people with rai·e or poorly understood conditions
- people in rnral and remote areas
- people with limited access to specialists
- people with low income
This constitutes indirect discrimination.
<!-- source-release-page: 51 -->
<a id="source-page-51"></a>
## Source release page 51
# Submission 2243
## Article 12 - Equal Recognition Before the Law
Complex evidentiaiy requirements impede equal access to decision-making processes.
## Article 17 - Protecting the Integrity of the Person
Requests for invasive medical records violate bodily and psychological integrity.
## Article 19 - Living Independently and Being Included in the Community
Evidentiaiy baiTiers restrict access to suppo1is necessa1y for independent living.
## Article 22 - Respect for Privacy
The CRPD prohibits unnecessaiy intrusions into personal and medical info1mation.
The NDIA's cunent and proposed practices violate this obligation.
## Article 26 - Habilitation and Rehabilitation
Evidentiaiy burdens delay or prevent access to therapy and capacity-building suppo1is.
## Article 28 - Adequate Standard of Living and Social Protection
BaiTiers to evidence undermine the right to social protection.
### 2.2 Non-Retrogression Principle
Increasing evidentiaiy burdens constitutes a retrogressive measure that reduces access
Such measures ai·e prohibited unless:
- sh'ictly necessa1y
- proportionate
- justified
- evidence-based
- non-discriminato1y
The Bill fails all five tests.
## 3. Administrative Law Analysis
Evidentiaiy requirements must be:
- reasonable
- proportionate
- relevant
- lawful
- consistent with statuto1y purpose
The Bill increases the risk of administi·ative law breaches by:
### 3.1 Expanding NDIA discretion to demand evidence.
<!-- source-release-page: 52 -->
<a id="source-page-52"></a>
## Source release page 52
# Submission 2243
This increases the risk of inelevant considerations and legal unreasonableness.
## 3.2 Introducing treatment consideration requirements.
These are not suppo1ted by the Act and risk unlawful fettering of discretion.
## 3.3 Increasing reliance on internal guidelines
These risks substituting policy for law.
## 3.4 Increasing procedural unfairness.
Participants ai·e often not told:
- what evidence is required
- why it is required
## 3.5 Increasing the risk of inconsistent decision making.
Different decision makers apply different evidentiaiy standards.
## 4. Parliamentary Intent Analysis
Hansai·d from 2012- 2013 shows Pai·liament intended the NDIS to:
- avoid excessive evidence requirements
- avoid medical gatekeeping
- avoid repeated proof of pennanence
- respect treating practitioners' evidence
- reduce administrative burden
- suppo1t autonomy and dignity
The Bill contradicts this intent by:
- increasing evidentiaiy burdens
- introducing treatment-consideration requirements
- requiring repeated proof of pe1manence
- increasing administrative complexity
This represents a depaiture from the original purpose of the Scheme.
## 5. Royal Commission Evidence
The Royal Commission identified systeinic failures m:
- evidence handling
- transpai·ency
- procedural fairness
<!-- source-release-page: 53 -->
<a id="source-page-53"></a>
## Source release page 53
# Submission 2243
- administrative burden
- delays
- adversarial conduct
Participants repo1ied:
- repeated requests for the same evidence
- requests for iTevant medical records
- requests for historical doclllments
:: : ::t:a:h::s;~:~ated privacy
- tralllisation
The Bill exacerbates these failures by increasing evidentiaiy burdens.
## Systemic Risk Analysis
Excessive evidentiaiy burdens create systemic risks, including:
### 6.1 Increased Exclusion
People unable to obtain specialist repo1is ai·e excluded.
#### 6.2 Increased Deterioration
Delays in evidence provision delay suppo1is.
### 6.3 Increased Crisis
People deteriorate while waiting for evidence to be accepted.
### 6.4 Increased Inequality
People with fewer resources face greater baITiers.
#### 6.5 Increased Emotional Distress
Repeated evidence requests cause exhaustion and trauma.
### 6.6 Increased Privacy Violations
Requests for iTevant medical records violate human rights.
## Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Prohibit repeated proof of permanence.
Pe1manent impaiiments must not requii·e ongoing re-evidence.
<!-- source-release-page: 54 -->
<a id="source-page-54"></a>
## Source release page 54
# Submission 2243
## 7.2 Prohibit treatment-consideration requirements.
These are discriminato1y and inconsistent with the CRPD.
## 7.3 Limit evidence requests to what is strictly necessary.
Evidence must be:
- relevant
- proportionate
- clinically justified
## 7.4 Prohibit requests for irrelevant medical records.
Privacy must be protected.
## 7.5 Require decision makers to accept treating practitioners' evidence.
Clinical evidence must be central.
## 7.6 Require clear, written explanations for any additional evidence requests.
This ensures transparency and procedural fairness.
## 7.7 Reduce administrative burden.
Evidence processes must be simplified.
## 8. Conclusion
Excessive evidentiaiy burdens violate:
- the CRPD
- the NDIS Act
- administrative law
- human rights principles
- pai·liamentaiy intent
They cause:
- exclusion
- deterioration
- cn s1s
- inequality
- emotional distress
- privacy violations
The NDIS must adopt a rights-based evidentiaiy framework that reduces burdens,
protects dignity, and ensures fair, lawful, and accessible decision making.
### RECOMMENDATION 4
<!-- source-release-page: 55 -->
<a id="source-page-55"></a>
## Source release page 55
# Submission 2243
Constrain NDIA Discretion with Statutory Safeguards to Ensure Lawful, Rights-Based, Evidence-Driven, and Non-Discriminatory Decision Making
## 1. Recommendation
The National Disability Insurance Scheme (NDIS) must inco1porate strong statutory safeguards to constrain the exercise of discretion by the National Disability Insurance Agency IA . These sa1eguards must ensure that:
- ddis~r~tion is exercisdeddl~wfu lly, f airlyd, and consi~tently 'd _
- ec1s10ns are groun e m c 1inica 1 evi ence, not mtema1 gm e1mes
- decision makers cannot rely on assumptions, stereotypes, or preconceived ideas about disability
- discretion is guided by clear statutory criteria, not opaque internal policy
- paiiicipants ai·e protected from arbitrary, unreasonable, or discriminatory decisions
- all decisions comply with the CRPD, the NDIS Act, and administrative law
The Bill expands NDIA discretion without embedding coITesponding safeguai·ds.
This creates a significant risk of unlawful, inconsistent, and discrirninato1y decision
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that administrative decision-making affecting people with disability is:
- non-discriminato1y
- transpai·ent
- evidence-based
- rights-consistent
- free from ai·bitrai·iness
- respectful of dignity and autonomy
Expanding NDIA discretion without safeguards violates multiple CRPD articles.
Article 3 - General Principles
Unconstrained discretion undennines dignity, autonomy, and paicipation.
Article 5 - Equality and Non-Discrimination
<!-- source-release-page: 56 -->
<a id="source-page-56"></a>
## Source release page 56
# Submission 2243
- inconsistent outcomes
- indirect discrimination
- systemic exclusion
## Article 12 - Equal Recognition Before the Law
People with disability must have equal access to fair, trnnsparent, and lawful decision
## Article 19 - Living Independently and Being Included in the Community
Arbitnuy or inconsistent decisions undennine access to suppo1is necessaiy for independent living.
## Article 22 - Respect for Privacy
Discretionaiy evidence demands often violate privacy.
## Article 26 - Habilitation and Rehabilitation
Discretionaiy denial of therapy supports undennines rehabilitation rights.
## Article 28 - Adequate Standard of Living and Social Protection
Unconstrained discretion undennines access to social protection
### 2.2 Non-Retrogression Principle
Expanding discretion without safeguai·ds constitutes a retrogressive measure because it:
- reduces transpai·ency
- reduces fairness
- reduces accountability
- mcreases risk of discrimination
- mcreases risk of exclusion
Such measures ai·e prohibited unless strictly justified - and the Bill provides no such justification.
## 3. Administrative Law Analysis
Administrative law requires that discretion be exercised:
- rationally
- ~~
- ~~
- fairly
- in accordance with statuto1y pmpose
<!-- source-release-page: 57 -->
<a id="source-page-57"></a>
## Source release page 57
# Submission 2243
The Bill increases the risk of administrative law breaches by:
## 3.1 Expanding discretion without statutory criteria.
This increases the risk of inelevant considerations and legal unreasonableness.
## 3.2 Increasing reliance on internal guidelines
This risks unlawful fettering of discretion (Drake).
## 3.3 Increasing the risk of inconsistent decision making.
Different decision makers apply different interpretations.
## 3.4 Increasing procedural unfairness.
Paiiicipants ai·e often not told:
- why evidence was disregarded
- how decisions were reached
## 3.5 Increasing the risk of decisions inconsistent with statutory purpose.(Project Blue Sky)
## 3.6 Increasing the risk of irrational or arbitrary decisions.(Li; Sti·etton)
# 4. Parliamentary Intent Analysis
Hansai·d from 2012- 2013 shows Pai·liament intended the NDIS to be:
- evidence-based
- rights-based
- ti·anspai·ent
- consistent
- non-adversai·ial
- paiiicipant-centi·ed
Pai·liament explicitly warned against:
- rigid categories
- prescriptive rnles
- administi·ative sho1icuts
- opaque decision making
- medical gatekeeping
The Bill conti·adicts this intent by:
<!-- source-release-page: 58 -->
<a id="source-page-58"></a>
## Source release page 58
# Submission 2243
- expanding discretion
- narrowing eligibility
- increasing reliance on Rules
- increasing administrative burdens
- reducing transparency
This represents a departure from the foundational purpose of the Scheme.
## 5. Royal Commission Evidence
The Royal Commission identified systemic failures in NDIA decision making,
- inconsistent application of criteria
- over-reliance on internal guidelines
- inadequate engagement with clinical evidence
- procedural unfairness
- lack of transparency
- arbitrary decision making
The Bill exacerbates these failures by expanding discretion without safeguards.
## 6. Systemic Risk Analysis
Unconstrained discretion creates systemic risks, including:
### 6.1 Increased Exclusion
People with similar disabilities receive different outcomes.
### 6.2 Increased Discrimination
Discretion allows stereotypes and assumptions to influence decisions.
### 6.3 Increased Deterioration
Arbitrary denial of supports leads to preventable decline.
### 6.4 Increased Crisis
Inconsistent decisions increase crisis-driven service use.
### 6.5 Increased Inequality
People with fewer resources cannot challenge unlawful decisions.
### 6.6 Increased Emotional Distress
Opaque and inconsistent decisions undermine trust and wellbeing.
<!-- source-release-page: 59 -->
<a id="source-page-59"></a>
## Source release page 59
# Submission 2243
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDCS must:
### 7.1 Embed statutory criteria that constraint discretion.
Criteria must be:
- clear
- rights-consistent
- evidence-based
### 7.2 Prohibit reliance on internal guidelines as determinative.
Guidelines must not oveITide statuto1y criteria.
### 7.3 Require decision makers to consider clinical evidence.
Treating practitioners' repo1is must be central.
### 7.4 Require written reasons that address all evidence.
This ensures transparency and procedural fairness.
### 7.5 Prohibit arbitrary or irrelevant considerations.
Decisions must be rational and lawful.
### 7.6 Require human rights-consistent interpretation.
All decisions must be inte1preted consistently with the CRPD.
### 7.7 Establish external oversight (linked to Recommendation 11)
Independent oversight is essential to constrain discretion.
## 8. Conclusion
Unconstrained discretion violates:
- the CRPD
- the NDIS Act
- administrative law
- parliamentary intent
- human rights principles
<!-- source-release-page: 60 -->
<a id="source-page-60"></a>
## Source release page 60
# Submission 2243
- exclusion
- discrimination
- deterioration
- cns1s
- inequality
- emotional distress
The NDIS must embed strong statuto1y safeguards to ensure that discretion is exercised lawfully, fairly, consistently, and in full compliance with human rights.
## RECOMMENDATION 5
Limit Rule Making Powers to Prevent Executive Overreach, Protect Human Rights, and Ensure Parliamentary Control Over Core NDIS Entitlements
### 1. Recommendation
The National Disability Insurance Scheme (NDIS) legislative framework must be amended to limit the scope of delegated legislation, particularly the power of the Executive to make or amend NDIS Rules that:
- redefine eligibility
- redefine permanence
- redefine functional impaiiment
- redefine reasonable and necessaiy suppo1is
- alter participant entitlements
- impose new evidentiaiy burdens
- expand NDIA discretion
- restrict access to supports
- shift responsibilities to mainstream systems
Core entitleren ts and eligibility criteria must remain in primary legislation, not el egate leg1s1abon.
Thbe tBill signfific:,n~ly etxp_anhdts th_ethMintiste1·~s powter to mt~e RT1hiil~s that cant alter the su s ance o pait1c1pan ng sw1 . ou par1iamen aiy scrn my. s represen s a profound shift in the governance of the NDIS and raises serious human rights, administrative law, and democratic accountability concerns.
<!-- source-release-page: 61 -->
<a id="source-page-61"></a>
## Source release page 61
# Submission 2243
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires that States ensure:
- accountability
- non-discrimination
- equal access to rights
- protection from arbitnuy interference
- legal certainty
- stability of entitlements
Expanding Rules-making powers without safeguards violates multiple CRPD articles.
Article 3 - General Principles
Rights must be stable, predictable, and accessible. Delegated legislation that can be changed without parliamentary oversight undermines these principles.
Article 4 - General Obligations
States must adopt legislative measures to implement rights. Delegating core rights to Rules undennines this obligation.
Article 5 - Equality and Non-Discrimination
Rules that alter eligibility or suppo1i can disproportionately impact ce1iain disability groups, creating indirect discrimination.
Article 12 - Equal Recognition Before the Law
People with disability must have equal access to stable legal entitlements. Frequent changes to Rules undermine legal ce1iainty.
Article 19 - Living Independently and Being Included in the Community
Rules that restrict supports undermine independent living.
Article 28 - Adequate Standard of Living and Social Protection
Rules that reduce entitlements undermine the right to social protection.
## 2.2 Non-Retrogression Principle
Delegated legislation that reduces rights constitutes a retrogressive measure. Such measures are prohibited unless:
<!-- source-release-page: 62 -->
<a id="source-page-62"></a>
## Source release page 62
# Submission 2243
- strictly necessaiy
- propo1tionate
- justified
- evidence-based
- non-discriminato1y
The Bill provides no justification for expanding Rules-making powers.
## 3. Administrative Law Analysis
Administrative law requires that:
- core rights be defined in primaiy legislation
- delegated legislation be limited in scope
- executive power be constrained
- statuto1y pmpose be upheld
- decision making be lawful and rational
The Bill increases the risk of administrative law breaches by:
### 3.1 Allowing Rules to override statutory purpose.
Rules could redefine eligibility or supports in ways inconsistent with the Act.
### 3.2 Allowing Rules to expand NDIA discretion.
This increases the risk of ai·bitra1y decisions.
### 3.3 Allowing Rules to impose new evidentiary burdens.
This undennines procedural fairness.
### 3.4 Allowing Rules to shift responsibilities to mainstream systems.
This contradicts the insurance-based design of the Scheme.
### 3.5 Allowing Rules to be made without adequate consultation.
This undenniges transpai·ency and accountability.
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Pai·liament intended:
- core entitlements to be protected in primaiy legislation
- Rules to be used only for administrative detail
- paiticipants' rights to be stable and predictable
- the NDIS to be insulated from political cycles
- the Scheme to be governed by Pai·liament, not the Executive
<!-- source-release-page: 63 -->
<a id="source-page-63"></a>
## Source release page 63
# Submission 2243
The Bill contradicts this intent by:
- expanding Rules-making powers
- allowing the Executive to alter entitlements
- reducing parliamentary oversight
- increasing the risk of political interference
This represents a fundamental shift away from the original design of the Scheme.
## 5. Royal Commission Evidence
The Royal Commission identified systemic failmes m:
-
- accountability
- decision-making quality
- evidence handling
- procedural fairness
The Commission emphasised the need for:
- stronger oversight
- clearer statutory protections
- reduced administrative discretion
The Bill moves in the opposite direction by expanding Rules-making powers.
## 6. Systemic Risk Analysis
Expanding Rules-making powers creates systemic risks, including:
### 6.1 Increased Executive Overreach
The Minister could alter entitlements without parliamentary scrutiny.
### 6.2 Increased Instability of Rights
Participants' rights could change frequently.
### 6.3 Increased Discrimination
Rules could disproportionately impact certain disability groups.
### 6.4 Increased Administrative Burden
Frequent changes to Rules increase complexity.
### 6.5 Increased Legal Uncertainty
Participants cannot rely on stable entitlements.
<!-- source-release-page: 64 -->
<a id="source-page-64"></a>
## Source release page 64
# Submission 2243
## 6.6 Increased Risk of Harm
Rules that reduce suppo1is increase the 1·1·sk of dete1·1·01·at1·on and c1·1·s1·s.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
- 7.1 Limit Rules-making powers to administrative detail. Rules must not alter core entitlements.
- 7.2 Prohibit Rules from redefining eligibility. Eligibility must remain in primaiy legislation.
- 7.3 Prohibit Rules from imposing new evidentiary burdens. Evidence requirements must be statuto1y.
- 7.4 Prohibit Rules from expanding NDIA discretion. Discretion must be constrained by the Act.
- 7.5 Require parliamentary approval for any Rule affecting rights. This ensmes democratic accountability.
- 7.6 Require human rights impact assessments for all Rules. Rules must comply with the CRPD.
- 7.7 Require public consultation before Rules are made. This ensmes transpai·ency and participation.
## 8. Conclusion
Expanding Rules-making powers violates:
- the CRPD
- the NDIS Act
- administrative law
- pai·liamentaiy intent
- human rights principles
It creates:
- executive oveffeach
- instability of rights
- discrimination
- legal uncertainty
- systemic haim
<!-- source-release-page: 65 -->
<a id="source-page-65"></a>
## Source release page 65
# Submission 2243
Core entitlements must remain in primary legislation.
Rules must be limited, transparent, and rights-consistent.
## RECOMMENDATION 6
Mandate Human Rights Impact Assessments for All NDIS Legislative and Policy Changes to Ensure Compliance with the CRPD, Prevent Retrogression, and Protect the Rights and Dignity of People with Disability
### 1. Recommendation
All legislative amendments, delegated legislation (including NDIS Rules), policy changes, operational guidelines, and administrative reforms affecting the National Disability Insurance Scheme (NDIS) must be subject to a mandatory, public, independent Human Rights Impact Assessment (HRIA) that:
- evaluates compliance with the Convention on the Rights of Persons with Disabilities (CRPD)
- identifies risks of discrimination, exclusion, or harm
- assesses whether proposed measures constitute retrogression
- examines impacts on dignity, autonomy, independence, and participation
- evaluates administrative law risks
- includes lived-experience evidence
- is published in full before reforms are enacted
The Bill introduces sweeping changes without adequate human rights analysis.
This violates Australia's obligations under the CRPD and undermines the rights of people with disability.
Mandatory HRIAs are essential to ensuring that NDIS reforms are lawful,
rights-consistent, and protective of participant wellbeing.
### 2. Human Rights Analysis
#### 2.1 CRPD Obligations
The CRPD requires States to:
- ensure all laws and policies affecting people with disability are rights-consistent
- prevent discrimination
- ensure equal access to supports
<!-- source-release-page: 66 -->
<a id="source-page-66"></a>
## Source release page 66
# Submission 2243
- protect dignity and autonomy
- ensure participation in community life
- prevent arbitrary or regressive measures
The Bill was introduced without a comprehensive HRIA, despite affecting:
- eligibility
- support
- evidence requirements
- administrative processes
- participant rights
- privacy
- independence
- access to justice
This omission is inconsistent with CRPD obligations.
## Article 4 - General Obligations
States must adopt legislative and administrative measures consistent with the CRPD.
Without HRIAs, compliance cannot be ensured.
## Article 5 - Equality and Non-Discrimination
Reforms must not disproportionately impact certain disability groups.
Without HRIAs, discriminatory impacts go undetected.
## Article 19 - Living Independently and Being Included in the Community
Reforms must not undermine access to supports necessary for independent living.
Without HRIAs, risks to independence are not assessed.
## Article 28 - Adequate Standard of Living and Social Protection
Reforns must not reduce access to social protection.
Without HRIAs, retrogressive impacts are not identified.
### 2.2 Non-Retrogression Principle
Human rights law prohibits retrogressive measures unless:
- strictly necessary
- proportionate
- justified
- evidence-based
- non-discriminatory
The Bill introduces retrogressive measures without demonstrating compliance with these requirements.
<!-- source-release-page: 67 -->
<a id="source-page-67"></a>
## Source release page 67
# Submission 2243
Mandato1y HRIAs are essential to preventing unlawful retrogression.
## 3. Administrative Law Analysis
Administrative law requires that:
- decision making be lawful, rational, and evidence-based
- statuto1y pmpose be upheld
- relevant considerations be taken into account
- nTelevant considerations be excluded
- procedmal fann ess be observed
Without HRIAs, refo1ms risk:
### 3.1 Breaching statutory purpose
(Project Blue Sky)
### 3.2 Ignoring relevant considerations.
(Peko-Wallsend)
### 3.3 Relying on irrelevant considerations.
(e.g., cost containment without rights analysis)
### 3.4 Producing legally unreasonable outcomes.
(Li; Stretton)
### 3.5 Violating procedural fairness.
(Kioa v West; SZBEL)
### 3.6 Increasing the risk of invalid decisions.
Refo1ms made without rights analysis are vulnerable to challenge.
Mandato1y HRIAs reduce these risks.
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- rights-based
- paiiicipant-centred
- evidence-driven
- protective of autonomy and dignity
- consistent with the CRPD
Pai·liament did not intend:
<!-- source-release-page: 68 -->
<a id="source-page-68"></a>
## Source release page 68
# Submission 2243
- cost-containment to oveITide rights
- eligibility to be naITowed without scrntiny
- suppo1is to be reduced without justification
- admin£• istrative burddens _toh be hincrease~ h
- re 01ms to be ma e wit out uman ng ts ana1ys1s
The Bill contradicts this intent.
Mandato1y HRIAs restore alignment with parliamenta1y pmpose.
5. Royal Commission Evidence
The Royal Commission identified systemic failures m:
- rights protection
- administrative fairness
-
- accountability
- evidence handling
- decision-making quality
The Commission emphasised the need for:
- s~gh·ongebr ovdersight
- n ts- ase governance
- disability-inclusive policy development
- transparent refo1m processes
The Bill was introduced without adequate human rights analysis, contradicting the
Commission's fmdings.
Mandato1y HRIAs are essential to preventing further systemic hann.
6. Systemic Risk Analysis
The absence of HRIAs creates systemic risks, including:
6.1 Increased Discrimination
Refo1ms may dispropo1iionately impact ce1iain disability groups.
6.2 Increased Exclusion
Eligibility changes may exclude people with severe and profound disabilities.
6.3 Increased Deterioration
Reduced supports may lead to preventable decline.
6.4 Increased Crisis
<!-- source-release-page: 69 -->
<a id="source-page-69"></a>
## Source release page 69
# Submission 2243
Administrative barriers may increase crisis-driven service use.
## 6.5 Increased Inequality
People with fewer resources are disproportionately harmed.
## 6.6 Increased Legal Vulnerability
Reforms made without rights analysis are vulnerable to challenge.
## 6.7 Increased Emotional Distress
Uncertainty and instability undermine wellbeing. Mandatory HRIs mitigate these risks.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Mandate HRIS for all legislative and policy changes
This includes:
- Bills
- Rules
- operational guidelines
- administrative reforms
### 7.2 Require HRIS to be independent and public.
Transparency is essential.
### 7.3 Require HRIS to include lived-experience evidence.
People with disability must be central.
### 7.4 Require HRIS to assess CRPD compliance.
This ensures rights-consistent reforms.
### 7.5 Require HRIS to assess retrogression risks.
Reforms must not reduce rights.
### 7.6 Require HRIS to assess discrimination risks.
Reforms must not disproportionately impact certain groups.
### 7.7 Require HRIS to assess administrative law risks.
<!-- source-release-page: 70 -->
<a id="source-page-70"></a>
## Source release page 70
# Submission 2243
Refonrs must be lawful and rational.
## 8. Conclusion
The absence of mandato1y Hlllllan Rights Impact Assessments violates:
- the CRPD
- the NDIS Act
- administrative law
- parliamentaiy intent
- human rights principles
It creates:
- discrimination
- exclusion
- deterioration
- cn s1s
_s&
- inequality _s&_s&
- legal vulnerability
~~ ~anhdato1y . HRIAs aid·e essen~ial tof ehnsmd·g. that NDd 1s bre~o1msfai·e lawful~h d' b'l' ~~
g ts-consistent, an protective o t e igmty an we 11 emg o people wit isa i ity.
RECOMMENDATION 7
Strengthen Administrative Capacity Before Implementing Any Legislative Reform to Prevent Systemic Harm, Ensure Human Rights Compliance, and Restore Lawful, Fair, and Evidence-Based Decision Making in the NDIS
1. Recommendation
The National Disability Insmance Agency (NDIA) must significantly strengthen its administrative capacity, decision making capability, evidence handling systems, and human rights compliance mechanisms before any legislative refonrs - including those proposed in the National Disability Insmance Scheme Amendment (Seeming the NDIS for Futme Generations) Bill 2026 - ai·e implemented.
This includes:
- improving decision-maker training
- embedding hlllllan rights and CRPD-consistent practice
- sb'engthening clinical-evidence handling
<!-- source-release-page: 71 -->
<a id="source-page-71"></a>
## Source release page 71
# Submission 2243
- reducing delays
- improving trnnsparency
- ensuring procedural fairness
- addre ssgstdemic failures ienhtified by he Royal Commission
- estab 1IShmg m ependent overs1g t mechamsms
- ensuring adequate staffmg and workload management
- eliminating adversarial internal culture
- ensuring trauma-infonned, disability-competent practice
Implementing legislative refo1m without sti·engthening administi·ative capacity will exacerbate existing systemic failures, increase haim , and unde1mine the rights of people with disability.
2. Human Rights Analysis
2.1 CRPD Obligations
The CRPD requires States to ensure that adminisu-ative systems affecting people with disability ai·e:
- accessible
- fair
- ti·anspai·ent
: : !~::::: ::;:1y
- adequately resourced
- capable of delivering suppo1ts necessaiy for autonomy and paiticipation
The NDIA's cunent administi·ative capacity does not meet these obligations.
Article 4 - General Obligations
States must adopt administi·ative measures consistent with the CRPD.
Under-resourced or poorly functioning adininisti·ative systems violate this obligation.
Article 5 - Equality and Non-Discrimination
~~ Adininisu-ative failures dispropo1tionately haim :
- people with complex disabilities
- people with cognitive or psychosocial disabilities
- people with limited literacy
- people in rnral and remote areas
- people with limited access to advocacy
This constitutes indirect discrimination.
Article 12 - Equal Recognition Before the Law
<!-- source-release-page: 72 -->
<a id="source-page-72"></a>
## Source release page 72
# Submission 2243
People with disability must have equal access to fair, lawful, and trnnsparent decision
Current administrative failures undennine this right.
Article 19 - Living Independently and Being Included in the Community
Administrative delays and poor decision making restrict access to suppo1is necessaiy for independent living.
Article 22 - Respect for Privacy
Poor evidence-handling practices violate pnvacy.
Article 26 - Habilitation and Rehabilitation
Delays and poor decision making undennine access to therapy and capacity-building supports.
Article 28 - Adequate Standard of Living and Social Protection
Administrative failures undennine access to social protection.
2.2 Non-Retrogression Principle
Implementing legislative refo1m without strengthening administrative capacity constitutes a retrogressive measure because it:
- mcreases administrative burden
- mcreases delays
- mcreases exclusion
- increases risk of haim
- reduces access to suppo1is
Such measures ai·e prohibited unless strictly justified - and no such justification exists.
3. Administrative Law Analysis
Administrative law requires that decision making be:
- lawful
- rational
- fair
- transpai·ent
- consistent
- evidence-based
- procedurally fair
The NDIA's cunent administrative capacity creates systemic risks of unlawful decision
<!-- source-release-page: 73 -->
<a id="source-page-73"></a>
## Source release page 73
# Submission 2243
## 3.1 Inadequate training
Decision makers often misunderstand statuto1y criteria.
## 3.2 Overreliance on internal guidelines
This risks unlawful fettering of discretion (Drake).
## 3.3 Failure to consider relevant evidence.
(Peko-Wallsend)
## 3.4 Failure to provide adequate reasons.
## 3.5 Legal unreasonableness
(Li; Stretton)
## 3.6 Procedural unfairness
## 3.7 Delays
Delays can constitute constructive refusal or breach of statuto1y duty.
Implementing legislative refo1m without addressing these failures increases legal vulnerability.
# 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonsti·ates that Parliament intended the NDIS to be:
- evidence-based
- paiiicipant-centi·ed
- rights-based
- ti·anspai·ent
- consistent
- non-adversai·ial
Parliament did not intend:
- administi·ative complexity
- excessive delays
- inconsistent decision making
- adversai·ial culture
- opaque evidence handling
- systemic procedural unfairness
The Bill inti·oduces new administi·ative burdens without sti·engthening capacity, conti-adicting parliamentaiy intent.
<!-- source-release-page: 74 -->
<a id="source-page-74"></a>
## Source release page 74
# Submission 2243
## 5. Royal Commission Evidence
The Royal Commission identified systematic failures m:
- decision-making quality
- evidence handling
- procedural fairness
-
- administrative burden
- delays
- adversarial conduct
- lack of disability competence
- lack of trnuma-infonned practice
The Commission emphasised the need for:
- improved trnining
- improved systems
- improved oversight
- ~provedd evidence handling
- rmprove ti·ansparency
- improved fairness
The Bill does not address these failures.
Instead, it exacerbates them by increasing adminisu-ative burden.
## 6. Systemic Risk Analysis
Implementing legislative refo1m without su-engthening administi·ative capacity creates systemic risks, including:
### 6.1 Increased Exclusion
People lmable to navigate complex processes are excluded.
### 6.2 Increased Deterioration
Delays and poor decisions lead to preventable decline.
### 6.3 Increased Crisis
Adminisu-ative failures increase crisis-driven service use.
### 6.4 Increased Inequality
People with fewer resources are dispropoitionately haimed.
### 6.5 Increased Emotional Distress
Adminisu-ative burden unde1mines wellbeing.
### 6.6 Increased Legal Vulnerability
<!-- source-release-page: 75 -->
<a id="source-page-75"></a>
## Source release page 75
# Submission 2243
Poor decision-making increases appeals and judicial review.
## 6. Increased Systemic Harm
Administrative failmes compound over time.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIA must:
### 7.1 Improve decision maker training.
Training must include:
- administrntive law
- CRPD obligations
- disability competence
- trnuma-info1med practice
- clinical-evidence interpretation
### 7.2 Strengthen evidence handling systems.
Systems must ensme:
- timely processing
- privacy protection
### 7.3 Reduce delays.
Timeliness is a human rights obligation.
### 7.4 Improve transparency.
Paii participants must understand:
- what evidence is required
- how decisions ai·e made
- why decisions ai·e made
### 7.5 Improve procedural fairness.
Paii participants must be given:
- notice
- reasons
<!-- source-release-page: 76 -->
<a id="source-page-76"></a>
## Source release page 76
# Submission 2243
7.6 Strengthen oversight.
Independent oversight is essential (linked to Recommendation 11).
7.7 Ensure adequate staffing and workload management.
Under-resourcing undennines rights.
8. Conclusion
Implementing legislative refo1m without strengthening administrative capacity violates:
- the CRPD
- the NDIS Act
- administrative law
- parliamentaiy intent
- human rights principles
fi~:
- exclusion
- deterioration
- cns1s
- inequality
- emotional distress
- legal vulnerability
Administrative capacity must be strengthened before any legislative refo1m is
implemented.
RECOMMENDATION 8
Centre Lived Experience in All NDIS Reform Processes to Ensure
human Rights Compliance, Prevent Systemic Harm, and Restore the
dignity, Autonomy, and Authority of People with Disability
1. Recommendation
All legislative, policy, administrative, and operational refo1ms to the National
Disability Insurance Scheme (NDIS) must be co-designed, co-led, and co-governed
by people with disability, including:
- people with complex disabilities
- people with cognitive, psychosocial, senso1y, and physical disabilities
<!-- source-release-page: 77 -->
<a id="source-page-77"></a>
## Source release page 77
# Submission 2243
- people with high suppo1i needs
- people with communication disabilities
- people with rare or poorly understood conditions
- p~ople fr?m culturally ~ndd~ingub.i_stically diverse backgrounds
- First Nations peop 1e with 1sa 1hty
- people in rnral and remote areas
Lived experience must not be treated as "consultation input" or "stakeholder feedback".
It must be treated as expert evidence, policy authority, and human rights testimony.
The Bill was developed without meaningful co-design.
This violates the CRPD, contradicts parliamentary intent, and undennines the legitimacy, fairness, and human rights compliance of the refo1m process.
Lived experience must be embedded at eve1y stage of refo1m, including:
- legislative drafting
- policy dev~lopment
- Rules-making
- operational guideline development
- administrative system design
- oversight and monitoring
- evaluation and review
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that people with disability are:
- cenb'al to decision making
- involved in policy development
- included in legislative refo1m
- ~~u~in~~~
- empowered to shape systems that affect them
The Bill was developed without meaningful co-design, violating multiple CRPD aiiicles.
## Article 3 - General Principles
The CRPD requires respect for:
- ~
- autonomy
<!-- source-release-page: 78 -->
<a id="source-page-78"></a>
## Source release page 78
# Submission 2243
- participation
- inclusion
Excluding lived experience from reform processes violates these principles.
Article 4(3) - General Obligations
States must closely consult with and actively involve people with disability m:
- law reform
- policy making
This is a binding obligation.
The Bill does not meet this standard.
Article 19 - Living Independently and Being Included in the Community
Refonns that affect independent living must be co-designed with those affected.
Article 29 - Participation in Public Life
People with disability have the right to participate in public decision making.
Article 33 - National Implementation and Monitoring
People with disability must be involved in monitoring the implementation of the CRPD.
2.2 Non-Retrogression Principle
::;~::!n~t: lived experience from refo1m processes constitutes a retrogressive measure
- reduces participation
- reduces transparency
- reduces accountability
- increases risk of discrimination
- increases risk of harm
Such measures ai·e prohibited unless strictly justified - and no such justification exists.
3. Administrative Law Analysis
Administrative law requires that:
- decision making be rational and evidence-based
- relevant considerations be taken into account
- nTelevant considerations be excluded
<!-- source-release-page: 79 -->
<a id="source-page-79"></a>
## Source release page 79
# Submission 2243
- statutory purpose be upheld
- procedural fairness be observed
Lived experience is a relevant consideration.
Excluding it increases the risk of unlawful decision making.
## 3.1 Failure to consider relevant considerations.
(Peko-Wallsend)
## 3.2 Decisions inconsistent with statutory purpose
(Project Blue Sky)
## 3.3 Legal unreasonableness
(Li; Stretton)
## 3.4 Procedural unfairness
## 3.5 Increased risk of invalid decisions
Refonms made without lived experience are vulnerable to challenge.
# 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- co-designed
- paiiicipant-centred
- rights-based
- grounded in lived experience
- shaped by people with disability
Parliament explicitly recognised:
- the authority of lived experience
- thhe ~eed for paiific1d·~ant _l~ad ership
- t e 11npo1iance o 1sab111ty-1ed governance
The Bill contradicts this intent by:
- excluding lived experience from refo1m processes
- pnonbsmg administrative convenience over rights
- embedding cost-containment mechanislllS without paiiicipant input
This represents a depaiime from the foundational pmpose of the Scheme.
# 5. Royal Commission Evidence
<!-- source-release-page: 80 -->
<a id="source-page-80"></a>
## Source release page 80
# Submission 2243
The Royal Commission found that:
- lived experience is essential to rights-based refonn
- systems designed without lived experience cause haim
- administrntive systems often ignore or devalue lived experience
- people with disability face systemic exclusion from decision making
- refo1ms must be co-designed with people with disability
The Bill was developed without meaningful co-design, contradicting the Commission's
## 6. Systemic Risk Analysis
Excluding lived experience from refo1m processes creates systemic risks, including:
### 6.1 Increased Discrimination
Refo1ms may dispropo1iionately impact ce1iain disability groups.
### 6.2 Increased Exclusion
Eligibility changes may exclude people with severe and profound disabilities.
### 6.3 Increased Deterioration
Refo1ms that ignore lived experience mcrease risk of haim .
### 6.4 Increased Crisis
Administrative baITiers mcrease crisis-driven service use.
### 6.5 Increased Inequality
People with fewer resomces ai·e dispropoliionately haimed.
### 6.6 Increased Emotional Distress
Exclusion from decision making unde1mines dignity and wellbeing.
### 6.7 Increased Systemic Harm
Systems designed without lived experience fail.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Embed lived experience in legislative drafting.
People with disability must co-design all Bills.
### 7.2 Embed lived experience in policy development.
<!-- source-release-page: 81 -->
<a id="source-page-81"></a>
## Source release page 81
# Submission 2243
Policies must be co-led by people with disability.
7.3 Embed lived experience in Rules-making.
Rules must not be made without disability-led oversight.
7.4 Embed lived experience in operational guidelines.
Guidelines must reflect lived experience evidence.
7.5 Embed lived experience in administrative system design.
Systems must be accessible, trnuma-info1med, and disability-competent.
7.6 Embed lived experience in oversight and monitoring.
Independent oversight bodies must include people with disability.
7.7 Embed lived experience in evaluation and review.
Reforms must be evaluated by those affected.
8. Conclusion
Excluding lived experience from NDIS reforms processes violate:
- the CRPD
- the NDIS Act
- administrative law
- parliamentary intent
- human rights principles
It:
- discrimination
- exclusion
- deterioration
- cns1s
- inequality
- emotional distress
- systemic haim
Lived experience must be central to all NDIS reforms.
This is not optional.
It is a human rights obligation.
9 - RECOMMENDATION 9
<!-- source-release-page: 82 -->
<a id="source-page-82"></a>
## Source release page 82
# Submission 2243
Preserve the Insurance Based Design of the NDIS to Ensure Long Term Sustainability, Human Rights Compliance, and Protection Against Retrogressive, Cost-Containment Driven Reforms
## 1. Recommendation
The National Disability Insurance Scheme (NDIS) must retain its insurance based design, as established in the original NDIS Act 2013, which is grounded in:
- long-term investment
- prevention of deterioration
- lifetime cost-benefit modelling
- actuarial sustainability
- rights-based access to supports
- maximising independence and participation
`redacted`: s47F — Personal privacy: Disclosure would involve the unreasonable disclosure of personal information about any person (the most common reason for redacted names in these documents)
Securing the NDIS for Future Generations Bill 2026 seeks to take the Scheme away from its insurance-based foundations toward:
- cost-containment
- rationing
- restrictive eligibility
- reduced supports
- short-term budgeting
- administrative gatekeeping
This shift is inconsistent with:
`redacted`
- the CRPD
- the NDIS Act
- participatory intent
- actuarial principles
`redacted`
- the lived experience of people with disability
The insurance-based design must be preserved to ensure long term sustainability, fairness, and rights-consistent access to supports.
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure:
<!-- source-release-page: 83 -->
<a id="source-page-83"></a>
## Source release page 83
# Submission 2243
- access to suppo1is necessaiy for autonomy and pa1iicipation
- non-discriminato1y access to social protection
- prevention of deterioration
- investment in Habilitation ahnd rehabilitat~odn
- long tenn support systems that promote m ependence
Shifting the NDIS away from an insurance-based model violates multiple CRPD articles.
## Article 3 - General Principles
The CRPD requires respect for:
-
- autonomy
- independence
- paiiicipation
Cost-containment driven refonns undennine these principles.
## Article 4 - General Obligations
States must adopt legislative and administrative measures consistent with the CRPD.
Short-term cost cutting is inconsistent with this obligation.
## Article 5 - Equality and Non-Discrimination
Restrictive eligibility and reduced suppo1is dispropo1i ionately impact:
- people with complex disabilities
- people with high suppo1i needs
- people with limited resources
- people in rnral and remote areas
This constitutes indirect discrimination.
## Article 19 - Living Independently and Being Included in the Community
Insurance-based investment is essential to independent living.
Cost-containment undennines this right.
## Article 26 - Habilitation and Rehabilitation
Insurance-based models support long te1m functional improvement.
Cost-cutting unde1mines rehabilitation rights.
## Article 28 - Adequate Standard of Living and Social Protection
Insurance-based models ensure stable access to suppo1is.
Budget-driven models undennine social protection.
<!-- source-release-page: 84 -->
<a id="source-page-84"></a>
## Source release page 84
# Submission 2243
## 2.2 Non-Retrogression Principle
Shifting from an insurance-based model to a cost containment model constitutes a retrogressive measure because it:
- reduces access to suppo1is
- mcreases deterioration
- mcreases cn s1s
- mcreases inequality
- mcreases haim
Such measures are prohibited unless strictly justified - and no such justification exists.
## 3. Administrative Law Analysis
Administrative law requires that:
- statuto1y pmpose be upheld
- relevant considerations be taken into account
- nTelevant considerations be excluded
- decision making be rational and evidence-based
The insurance based design is a core statutory purpose of the NDIS. Shifting away from this design risks:
### 3.1 Decisions inconsistent with statutory purpose
(Project Blue Sky)
### 3.2 Reliance on irrelevant considerations
(e.g., sho1i-te1m budget pressures)
### 3.3 Legal unreasonableness
(Li; Stretton)
### 3.4 Procedural unfairness
~v~
### 3.5 Increased risk of invalid decisions
Refo1ms inconsistent with sta.tuto1y pmpose ai·e vulnerable to challenge.
## 4. Parliamentary Intent Analysis
Hansai·d from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
<!-- source-release-page: 85 -->
<a id="source-page-85"></a>
## Source release page 85
# Submission 2243
- insurance-based
- long-tenn
- preventative
- investment-ddriven
- n ts-base
- protective of autonomy and independence
Parliament explicitly rejected:
::t!:: :!aintenance models
- sho1i-te1m budgeting
- restrictive eligibility
- welfare-style gatekeeping
The Bill contradicts this intent by:
- embedding cost-containment mechanisms
- narrowing eligibility
- educ g supdminpo blu·den
- increasing administrative
- shifting responsibility to mainstream systems
This represents a fundamental depaiiure from the original design of the Scheme.
5. Royal Commission Evidence
The Royal Commission found that:
- the insurance-based design is essential to long tenn sustainability
- early intervention reduces long-term costs
- preventative Slppdorts id educe crisis
- investment m mepen ence rmproves outcomes
- cost-containment haims people with disability
- rationing increases deterioration and crisis
The Bill contradicts these fmdings by prioritising cost-containment over rights.
6. Systemic Risk Analysis
Abandoning the insurance-based design creates systemic risks, including:
6.1 Increased Deterioration
Reduced supports lead to preventable decline.
6.2 Increased Crisis
People deteriorate until they require emergency intervention.
6.3 Increased Long-Term Costs
<!-- source-release-page: 86 -->
<a id="source-page-86"></a>
## Source release page 86
# Submission 2243
Short-term cuts increase long-term expenditure.
## 6.4 Increased Inequality
People with fewer resources are disproportionately harmed.
## 6.5 Increased Institutionalisation by Neglect
Reduced supports increase reliance on hospitals and state systems.
## 6.6 Increased Emotional Distress
Uncertainty undermines wellbeing.
## 6.7 Increased Systemic Harm
Cost-containment models fail over time.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Preserve the insurance-based design.
This is essential to sustainability and rights compliance.
### 7.2 Remove cost-containment mechanisms from the Bill.
Cost-cutting must not override rights.
### 7.3 Strengthen early intervention.
Early supports reduce long-term costs and harm.
### 7.4 Strengthen preventative supports.
Prevention is a human rights obligation.
### 7.5 Strengthen investment in independence.
Supports that increase autonomy must be prioritised.
### 7.6 Strengthen actuarial modelling.
Modelling must reflect long-term outcomes, not short-term budgets.
### 7.7 Strengthen human rights oversight.
Reforms must be rights-consistent.
## 8. Conclusion
Abandoning the insurance-based design violates:
<!-- source-release-page: 87 -->
<a id="source-page-87"></a>
## Source release page 87
# Submission 2243
- the CRPD
- the NDIS Act
- administrntive law
- parliame~taiy in~en~
- human nghts pnnc1ples
fi ~ :
- deterioration
: :~~:ality
- emotional distress
- long-tenn cost escalation
- systemic haim
The insurance-based design must be preserved to ensure long-tenn sustainability, fairness, and rights-consistent access to suppo1is.
## RECOMMENDATION 10 Commission an Independent Review of NDIA Decision-Making Quality ~
to Ensure Human Rights Compliance, Administrative Law Integrity,
and Systemic Accountability
### 1. Recommendation The Australian Government must commission a fully independent, expert led, public review of the National Disability Insurance Agency's (NDIA) decision-making quality, with a mandate to examine:
- compliance with the NDIS Act
- ~ance w~thh thadimc·nistrati~e law h R. h f p .th n· b.l. . (CRPD) ~~ • compcompl11ance wit e onvention on t e 1g ts o t e 1g ts o t e 1g ts o persons wi isa 1 1bes
- systemic patterns of eITor
- evidence-handling practices
- procedural fairness transpai·ency
- internal culture
- training and capability
- use of internal guidelines
- adversarial conduct
- privacy and propo1iionality
<!-- source-release-page: 88 -->
<a id="source-page-88"></a>
## Source release page 88
# Submission 2243
- impacts on participant wellbeing
- impacts on equality and non-discrimination
This review must be:
- independent of the NDIA
- independent of government departments
- chaired by experts in administrative law, disability rights, and human rights
- informed by lived experience
- empowered to compel documents and testimony
- required to publish findings and recommendations
! ::s!~~m= ucf::l:::.eping reforms without addressing the NDIA's systemic
An independent review is essential to ensure that the NDIS operates lawfully, fairly,
and in accordance with human rights.
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that administrative systems affecting people with
disability are:
- fair
- transparent
- rights-consistent
- non-discriminatory
- accountable
- subject to independent oversight
The NDIA's current decision-making practices violate multiple CRPD articles.
Article 3 - General Principles
The CRPD requires respect for:
-
- autonomy
- independence
- participation
Poor decision-making quality undermines these principles.
Article 4 - General Obligations
States must adopt administrative measures consistent with the CRPD.
Systemic decision-making failures violate this obligation.
<!-- source-release-page: 89 -->
<a id="source-page-89"></a>
## Source release page 89
# Submission 2243
## Article 5 - Equality and Non-Discrimination
Inconsistent or arbitrary decisions disproportionately harm:
- people with complex disabilities
- people with cognitive or psychosocial disabilities
- people with limited literacy
- people in rural and remote areas
- people with limited access to advocacy
This constitutes indirect discrimination.
## Article 12 - Equal Recognition Before the Law
People with disability must have equal access to fair, lawful, and transparent decision
Current NDIA practices undermine this right.
## Article 19 - Living Independently and Being Included in the Community
Poor decision making restricts access to supports necessary for independent living.
## Article 22 - Respect for Privacy
Invasive evidence requests violate privacy.
## Article 26 - Habilitation and Rehabilitation
Delays and poor decisions undermine access to therapy and capacity-building supportis.
## Article 28 - Adequate Standard of Living and Social Protection
Systemic decision-making failures undermine access to social protection.
### 2.2 Non-Retrogression Principle
Implementing legislative reform without addressing systemic decision-making failures constitutes a retrogressive measure because it:
- increases administrative burden
- increases exclusion
- increases risk of harm
- reduces access to suppo1is
- reduces fairness and transparency
Such measures are prohibited unless strictly justified - and no such justification exists.
## 3. Administrative Law Analysis
<!-- source-release-page: 90 -->
<a id="source-page-90"></a>
## Source release page 90
# Submission 2243
Administrative law requires that decision making be:
- rational
- fair
- trnnsparent
- consistent
- evidence-based
- procedurally fair
The NDIA's cunent decision-making practices create systemic risks of unlawful decision making.
## 3.1 Failure to consider relevant considerations.
(Peko-Wallsend)
## 3.2 Reliance on irrelevant considerations
(e.g., internal guidelines oven iding clinical evidence)
### ~~3.3 Legal unreasonableness~~
(Li; Sti·etton)
## 3.4 Procedural unfairness
(Kioa v West; SZBEL)
## 3.5 Decisions inconsistent with statutory purpose
(Project Blue Sky)
### ~~3.6 Unlawful fettering of discretion~~
## 3.7 Inadequate reasons
Participants often receive decisions that do not explain:
- how evidence was assessed
- why evidence was disregarded
- how conclusions were reached
An independent review is essential to identify and conect these failures.
<!-- source-release-page: 91 -->
<a id="source-page-91"></a>
## Source release page 91
# Submission 2243
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- evidence-based
- paiiicipant-centred
- rights-based
- ti·anspai·ent
- consistent
- non-adversai·ial
Parliament did not intend:
- administi·ative complexity
- inconsistent decision making
- adversai·ial culture
- opaque evidence handling
- systemic procedural unfairness
The Bill inti·oduces new administi·ative burdens without addressing existing failures, contradicting parliamentaiy intent.
An independent review is necessaiy to restore alignment with the original pmpose of the Scheme.
## 5. Royal Commission Evidence
The Royal Cormm·ss1·on ident1·fied systemic failures in NDIA decision making,
- inconsistent application of criteria
- oven-eliance on internal guidelines
- inadequate engagement with clinical evidence
- procedural unfairness
: ~~~r::.:~::::::y
- excessive delays
- privacy violations
- lack of disability competence
- lack of ti·auma-infonned practice
The Co1mnission emphasised the need for:
- improved ti·aining
- improved systems
- improved oversight
- improved evidence handling
<!-- source-release-page: 92 -->
<a id="source-page-92"></a>
## Source release page 92
# Submission 2243
- improved trnnsparency
- improved fairness
The Bill does not address these failures.
Instead, it exacerbates them by increasing administrative burden.
An independent review is essential to implement the Royal Commission's findings.
## 6. Systemic Risk Analysis
Without an independent review, systemic risks include:
### 6.1 Increased Exclusion
People unable to navigate complex processes are excluded.
### 6.2 Increased Deterioration
Poor decisions lead to preventable decline.
### 6.3 Increased Crisis
Administrative failures increase crisis-driven service use.
### 6.4 Increased Inequality
People with fewer resources are dispropoitionately haimed.
### 6.5 Increased Emotional Distress
Poor decision making unde1mines wellbeing.
### 6.6 Increased Legal Vulnerability
Unlawful decisions increase appeals and judicial review.
### 6.7 Increased Systemic Harm
Failures compound over time.
An independent review is essential to prevent further haim .
## 7. Detailed Reform Requirements
To comply with human rights obligations, the independent review must:
### 7.1 Examine decision-making quality.
- evidence handling
- reasomng
<!-- source-release-page: 93 -->
<a id="source-page-93"></a>
## Source release page 93
# Submission 2243
- fairness
## 7.2 Examine administrative law compliance.
:
- procedural fairness
- legal unreasonableness
## 7.3 Examine human rights compliance.
Including:
-
- equality and non-discrimination
- privacy
-
## 7.4 Examine internal culture.
:
0:ractices
- reliance on internal guidelines
## 7.5 Examine training and capability.
Including:
- administrative law
- human rights
- disability competence
- trauma-info1med practice
## 7.6 Examine systemic patterns of error.
:
- repeated evidence requests
- disregard of clinical evidence
- inconsistent application of criteria
## 7.7 Make binding recommendations.
Refo1ms must be implemented.
## 8. Conclusion
<!-- source-release-page: 94 -->
<a id="source-page-94"></a>
## Source release page 94
# Submission 2243
The NDIA's decision-making failures violate:
- the CRPD
- the NDIS Act
- administrntive law
- parliamentaiy intent
- human rights principles
They cause:
- exclusion
- deterioration
- : :~~:ality
- emotional disti·ess
- systemic haim
A fully independent review is essential to restore legality, fairness, ti·anspai·ency, and
human rights compliance.
## RECOMMENDATION 11
Establish an Independent External Review and Oversight Body Separate from the NDIA to Ensure Human Rights Compliance,
Administrative Law Integrity, and Systemic Accountability
### Recommendation
The Austi·alian Government must establish a fully independent, statutory external review and oversight body, structurally and operationally sepai·ate from the National Disability Insurance Agency (NDIA), with the authority to:
- conduct internal reviews of NDIA decisions
- oversee evidence-handling practices
- monitor compliance with the NDIS Act
- monitor compliance with the Convention on the Rights of Persons with Disabilities (CRPD)
- ensure procedural fairness
- audit decision-making quality
- investigate systemic failures
- issue binding recommendations
- publish public repo1is
- com£pel dhocumen~shand tesdtimdsony
- en orce uman ng ts stan ar
<!-- source-release-page: 95 -->
<a id="source-page-95"></a>
## Source release page 95
# Submission 2243
This body must be:
- independent of the NDIA
- independent of government departments
- disability-led
- rights-based
- empowere
- adequately resourced
The Bill expands NDIA discretion and administrative power without establishing corresponding oversight mechanisms.
This creates a significant risk of unlawful, discriminato1y, and hannful decision
An independent oversight body is essential to ensuring that the NDIS operates lawfully, fairly, and in accordance with human rights.
## Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that systems affecting people with disability are:
- accountable
- transparent
- rights-consistent
- subject to independent monitoring
- free from discrimination
- protective of dignity and autonomy
The NDIA's current internal review system does not meet these obligations.
## Article 3 - General Principles
The CRPD requires respect for:
- autonomy
- independence
- paiiicipation
A system where the NDIA reviews its own decisions undermines these principles.
## Article 4 - General Obligations
States must adopt administrative measures consistent with the CRPD.
Internal review systems that lack independence violate this obligation.
<!-- source-release-page: 96 -->
<a id="source-page-96"></a>
## Source release page 96
# Submission 2243
## Article 5 - Equality and Non-Discrimination
Internal review systems dispropo1iionately haim :
- people with complex disabilities
- people with cognitive or psychosocial disabilities
- people with limited literacy
- people in rnral and remote areas
- people with limited access to advocacy
This constitutes indirect discrimination.
## Article 12 - Equal Recognition Before the Law
People with disability must have equal access to fair, lawful, and transpai·ent review processes.
NOIA-controlled internal reviews unde1mine this right.
## Article 19 - Living Independently and Being Included in the Community
Unfair or unlawful decisions restrict access to suppo1is necessa1y for independent living.
## Article 22 - Respect for Privacy
Oversight is essential to preventing privacy violations.
## Article 28 - Adequate Standard of Living and Social Protection
Independent oversight is essential to ensuring access to social protection.
### 2.2 Non-Retrogression Principle
Expanding NDIA power without establishing independent oversight constitutes a retrogressive measure because it:
- reduces accountability
- reduces transparency
: ::::s:sfa1~:s;f discrimination
- increases risk of haim
Such measures ai·e prohibited unless strictly justified - and no such justification exists.
### 3. Administrative Law Analysis/Administrative law requires that:
- decision making be lawful, rational, and fair
- statuto1y pmpose be upheld
<!-- source-release-page: 97 -->
<a id="source-page-97"></a>
## Source release page 97
# Submission 2243
- relevant considerations be taken into account
- inelevant considerations be excluded
- procedural fairness be observed
- review mechanisms be effective
The NDIA's cunent internal review system creates systemic risks of unlawful decision
## 3.1 Lack of independence
A body cannot lawfully review its own decisions without stmctural bias.
## 3.2 Procedural unfairness
(Kioa v West; SZBEL)
Paiiicipants often do not receive:
- adequate notice
- adequate reasons
- ~~ ~~
- access to evidence
## 3.3 Legal unreasonableness
(Li; Sti·etton)
Internal reviews often replicate the enors of original decisions.
## 3.4 Failure to consider relevant considerations.
(Peko-Wallsend)
Clinical evidence is often disregai·ded.
## 3.5 Decisions inconsistent with statutory purpose
(Project Blue Sky)
Internal reviews often prioritise administi·ative convenience over rights.
## 3.6 Unlawful fettering of discretion
Internal reviews often rely on internal guidelines rather than statuto1y criteria.
An independent oversight body is essential to ensuring administrative law compliance.
## 4. Parliamentary Intent Analysis
<!-- source-release-page: 98 -->
<a id="source-page-98"></a>
## Source release page 98
# Submission 2243
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- trnnsparent
- accountable
- rights-based
- paiiicipant-centred
- non-adversai·ial
Pai·liament did not intend:
- opaque internal review systems
- NDIA self-oversight
: ::~::·:!.::e:::~e:1a!ness
- unchecked discretion
The Bill expands NDIA power without establishing independent oversight,
contradicting parliamentaiy intent.
An independent oversight body is necessaiy to restore alignment with the original purpose of the Scheme.
5. Royal Commission Evidence
The Royal Commission identified systemic failures m:
- decision-making quality ~~
- evidence handling
- procedural fairness ~-
~~ ~
- administrntive burden • delays
- adversai·ial conduct
- privacy violations
- lack of disability competence
- lack of trnuma-infonned practice
The Commission emphasised the need for:
- independent oversight
- rights-based governance
- ti·anspai·ent review processes
- disability-led monitoring
- systemic accountability
The Bill does not address these failures.
Instead, it exacerbates them by increasing NDIA power.
<!-- source-release-page: 99 -->
<a id="source-page-99"></a>
## Source release page 99
# Submission 2243
An independent oversight body is essential to implementing the Royal Commission's
## 6. Systemic Risk Analysis
Without independent oversight, systemic risks include:
- **6.1 Increased Exclusion**
People unable to challenge unlawful decisions are excluded.
- **6.2 Increased Deterioration**
Poor decisions lead to preventable decline.
- **6.3 Increased Crisis**
Administrative failures increase crisis-driven service use.
- **6.4 Increased Inequality**
People with fewer resources are dispropoitionately haimed.
- **6.5 Increased Emotional Distress**
The lack of oversight unde1mines tiust and wellbeing.
- **6.6 Increased Legal Vulnerability**
Unlawful decisions increase appeals and judicial review.
- **6.7 Increased Systemic Harm**
Failures compound over time.
Independent oversight is essential to preventing fuiiher haim .
## 7. Detailed Reform Requirements
To comply with human rights obligations, the independent oversight body must:
- **7.1 Be structurally independent.**
It must not be part of the NDIA.
- **7.2 Have statutory authority.**
Its powers must be embedded in legislation.
- **7.3 Have broad investigative powers.**
<!-- source-release-page: 100 -->
<a id="source-page-100"></a>
## Source release page 100
# Submission 2243
- compelling documents
- compelling testimony
- accessing internal guidelines
- auditing decision-making systems
## 7.4 Conduct internal reviews
NDIA must not review its own decisions.
## 7.5 Monitor evidence-handling practices
- pnvacy
- proportionality
- relevance
-
## 7.6 Monitor human rights compliance
- ~D ~~~
- equality and non-discrimination
- dignity and autonomy
## 7.7 Publish public reports.
Transparency is essential.
## 7.8 Include lived experience leadership.
People with disability must be central.
## 8. Conclusion
The absence of independent oversight violates:
- the CRPD
- the NDIS Act
- administrntive law
- parliamentaiy intent
- human rights principles
fi:
- exclusion
- deterioration
- cns1s
- inequality
<!-- source-release-page: 101 -->
<a id="source-page-101"></a>
## Source release page 101
# Submission 2243
- emotional disti·ess
- systemic haim
A fully independent external review and oversight body is essential to restoring legality, fairness, ti·ansparency, and human rights compliance.
## RECOMMENDATION 12
Require the NDIA to Represent Itself at the Administrative Review Tribunal (ART), Not Through External Law Firms, and Ensure Participants Can Access Paid NDIS-Funded Support to Navigate the Review Process
### Recommendation
The National Disability Insurance Agency (NDIA) must be required to represent itself at the Administrative Review Tribunal (ART) through:
- ti·ained, non-legal NDIA officers
- staff with expe1iise in disability, administi·ative law, and the NDIS Act
- officers u-ained in u-auma-infonned, rights-based practice
The NDIA must be prohibited from engaging:
- external law fnms
- private legal conti·actors
: ::~::::e~r 1::;~ s:~1vices
Additionally, paiiicipants must be guai·anteed access to paid NDIS-funded personnel including Suppo1i Coordinators and Psychosocial Recove1y Coaches to assist them throughout the ART process, recognising that most paii participants cannot understand or navigate ART conespondence without professional suppo1i .
This refonn is essential to:
- restoring the non-adversarial nature of the NDIS review system
- ensuring equality of aims
- preventing systeinic power imbalances
- reduc~g CreRPti·a1unatis~tion.
- ensurmg 0 -consistent access to Justice
- reducing costs
- improving ti·anspai·ency
-~~~s
- ensuring lawful, evidence-based decision making
<!-- source-release-page: 102 -->
<a id="source-page-102"></a>
## Source release page 102
# Submission 2243
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that people with disability have:
- equal access to justice
- non-adversarial, accessible review systems
- access to fair and transparent processes
The NDIA's use of external law fnms violates multiple CRPD aiticles.
Article 3 - General Principles
Adversai·ial legal representation undennines dignity, autonomy, and participation.
Article 5 - Equality and Non-Discrimination
The NDIA's use of lawyers creates a profound power imbalance.
Participants - many of whom cannot afford legal representation - face systemic disadvantage.
Article 12 - Equal Recognition Before the Law
Facing a government-funded legal team unde1mines equal access to justice.
Article 13 - Access to Justice
States must provide procedural accommodations.
Allowing paid personnel to assist participants is a mandato1y accollllllodation.
Article 19 - Living Independently and Being Included in the Community
Unfair review processes restrict access to suppo1ts necessaiy for independent living.
Article 22 - Respect for Privacy
Lawyers often request excessive or iITelevant medical records.
Article 28 - Adequate Standard of Living and Social Protection
Adversai·ial review processes undermine access to social protection.
## 3. Administrative Law Analysis
Administrative law requires that review processes be:
- fair
- transpai·ent
<!-- source-release-page: 103 -->
<a id="source-page-103"></a>
## Source release page 103
# Submission 2243
- rational
- non-adversarial
- consistent with statutory purpose
The NDIA's use of external law firms creates systemic risks of unlawful review processes.
## 3.1 Procedural unfairness
Participants face unequal access to legal expertise and evidence.
## 3.2 Legal unreasonableness
Adversarial conduct undermines rational decision making.
## 3.3 Decisions inconsistent with statutory purpose
The NDIS Act requires a supportive, non-adversarial system.
## 3.4 Unlawful fettering of discretion
Lawyers often rely on internal guidelines rather than statutory criteria.
## 3.5 Failure to consider relevant considerations.
Clinical evidence is often disregarded.
## 3.6 Increased risk of invalid decisions
Adversarial processes undermine lawful decision making.
## 4. Parliamentary Intent Analysis
Hansard from 2012-2013 demonstrates that Parliament intended the NDIS to be:
- non-adversarial
- participant-centred
- rights-based
- accessible
- supportive
Parliament explicitly rejected:
- adversarial review processes
- legalistic systems
- power imbalances
- welfare-style gatekeeping
The NDIA's use of external law forms contradicts this intent
<!-- source-release-page: 104 -->
<a id="source-page-104"></a>
## Source release page 104
# Submission 2243
Requiring the NDIA to represent itself restores alignment with parliamentary purpose.
## 5. Royal Commission Evidence
The Royal Commission identified systematic failmes m:
- adversai·ial conduct
- retraumatisation
- power imbalances
- lack of ti·anspai·ency
- poor evidence handling
- procedmal unfairness
Participants repo1ied:
- being cross-examined
- being intimidated
- being reti·aumatised
- bbe~ng ove1bwhelmehd
- emg una le to c a1lenge legal ai·guments
- being forced to disclose in elevant medical infonnation
The Commission emphasised the need for:
- non-adversai·ial review processes
- ti·auma-info1med practice
- disability-competent systems
- rights-based governance
The NDIA's use of external law fnms conu-adicts these fmdings.
## 6. Systemic Risk Analysis
Allowing the NDIA to use external law fnms creates systemic risks, including:
: ~ :::::::: !.: :!::!sation
- increased exclusion
- increased deterioration
- increased cns1s
- increased emotional disu-ess
- increased systemic haim
Requiring the NDIA to represent itself mitigates these risks.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
<!-- source-release-page: 105 -->
<a id="source-page-105"></a>
## Source release page 105
# Submission 2243
7.1 Prohibit the NDIA from using external law firms.
Including private fnms, government legal services, and baITisters.
7.2 Require the NDIA to appear through trained non-legal officers.
Officers must be trained in administrative law, human rights, disability competence,
and trauma-info1med practice.
7.3 Require the ART to adopt an inquisitorial model.
The Tribunal must investigate, inquire, and ensure fairness.
7.4 Require transparency in all review processes.
Paiiicipants must understand what evidence is required and why.
7.5 Require human rights oversight.
Review processes must comply with the CRPD.
7.6 Require disability-led monitoring.
People with disability must oversee review processes.
12.8 Human Rights Requirement: Participants Must Be Allowed to Have Paid
NDIS-Funded Personnel Assist Them at the ART
Most paiiicipants cannot understand or navigate ART coITespondence without
professional suppo1i .
Advocacy services ai·e booked out months in advance.
Therefore, pa1iparticipants must be allowed to receive assistance from:
- Suppo1i Coordinators
- Psychosocial Recove1y Coaches
- other paid NDIS-funded disability professionals
This is a CRPD Article 13 procedural accommodation and a procedural fairness
requirement.
12.8.1 CRPD Analysis
This refonn is required under Aliicles 5, 12, 13, 19, and 28 .
12.8.2 Administrative Law Analysis
Without paid support, participants cannot meet procedural fairness requirements.
<!-- source-release-page: 106 -->
<a id="source-page-106"></a>
## Source release page 106
# Submission 2243
## 12.8.3 Parliamentary Intent
Parliament intended a suppo1i ive, accessible, non-adversarial system.
## 12.8.4 Royal Commission Evidence
The Commission found that pa i participants cannot navigate legal systems alone.
## 12.8.5 Systemic Risk Analysis
Without paid support, risks include exclusion, deterioration, cns1s, trauma tisation, and
in equality.
## 12.8.6 Detailed Reform Requirements
The NDIS Act and ART legislation must:
- explicitly allow Suppoli Coordinators and Psychosocial Recove1y Coaches to ass1·st
- require the NDIA to fund Suppo1i Coordination for ART matters
- require accessible communication
- require trauma-info1med, disability-competent processes
## 12.8.7 Conclusion
This refonn is essential to ensunng fairness, dignity, equality, and access to justice.
# 9. Conclusion
Allowing the NDIA to use external law fnms violates:
- the CRPD
- the NDIS Act
- administrative law
- pai·liamentaiy intent
- human rights principles
fi ~:
- inequality
- traumatisation
- exclusion
- deterioration
- cn s1s
- emotional distress
- systemic haim
Requiring the NDIA to represent itself - and ensming pa i participants can access paid
NDIS-funded support at the ART is essential to restoring fairness, dignity, and
human rights compliance.
<!-- source-release-page: 107 -->
<a id="source-page-107"></a>
## Source release page 107
# Submission 2243
## RECOMMENDATION 13
### Prohibit the NDIA From Using Lawyers Against Participants and Require All NDIA Appearances at the ART to Be Made by Trained, non-Legal NDIA Officers
#### 1. Recommendation
The National Disability Insurance Agency (NDIA) must be prohibited from engaging:
- external law finns
- private legal conti·actors
- government legal services
- banisters or counsel
in any matter before the Administrative Review Tribunal (ART).
Instead, the NDIA must be required to appear only through trained, non-legal NDIA officers, who are:
- skilled in administi·ative law
- ti·ained in human rights and CRPD obligations
- ti·ained in disability competence
- ti·ained in u-auma-info1med practice
- capable of engaging in non-adversarial, inquisitorial review processes
This refonn is essential to:
- restoring the non-adversarial nature of the NDIS
- ensuring equality of aims
- preventing ti·aumatisation
- reducing systemic power imbalances
- endsur~g CRPtD-consistent access to justice
- re ucmg cos s
- improving ti·ansparency
-~~~s
- ensuring lawful, evidence-based decision making
This recommendation complements Recommendation 12 and su-engthens the
to requirement that the NDIA must not weaponize legal representation against
paii icipants.
#### 2. Human Rights Analysis
##### 2.1 CRPD Obligations
<!-- source-release-page: 108 -->
<a id="source-page-108"></a>
## Source release page 108
# Submission 2243
The CRPD requires States to ensure that people with disability have:
- equal access to justice
- non-adversarial, accessible review systems
- protection from discrimination
- protection from traumatisation
- access to fair and transparent processes
The NDIA's use of lawyers violates multiple CRPD articles.
## Article 3 - General Principles
Adversarial legal representation undermines dignity, autonomy, and participation.
## Article 5 - Equality and Non-Discrimination
The NDIA's use of lawyers creates a profound power imbalance. Participants - many of whom cannot afford legal representation - face systemic disadvantage.
## Article 12 - Equal Recognition Before the Law
Facing a government-funded legal team undermines equal access to justice.
## Article 13 - Access to Justice
States must provide procedural accommodations and ensure accessible, non-adversarial processes.
## Article 19 - Living Independently and Being Included in the Community
Unfair review processes restrict access to supports necessary for independent living.
## Article 22 - Respect for Privacy
Lawyers often request excessive or irrelevant medical records.
## Article 28 - Adequate Standard of Living and Social Protection
Adversarial review processes undermine access to social protection.
### 2.2 Non-Retrogression Principle
The NDIA's use of lawyers constitutes a retrogressive measure because it:
- increases adversarialism
- increases retraumatisation
- increases inequality
- reduces access to justice
- reduces fairness
- reduces transparency
<!-- source-release-page: 109 -->
<a id="source-page-109"></a>
## Source release page 109
# Submission 2243
Such measures are prohibited unless strictly justified - and no such justification exists.
## 3. Administrative Law Analysis
Administrative law requires that review processes be:
- fair
- transparent
- rational
- lawful
- non-adversarial
- consistent with statutory purpose
The NDIA's use of external law firms creates systemic risks of unlawful review processes.
### 3.1 Procedural unfairness
Participants face unequal access to legal expertise and evidence.
### 3.2 Legal unreasonableness
Adversarial conduct undermines rational decision making.
### 3.3 Decisions inconsistent with statutory purpose
The NDIS Act requires a supportive, non-adversarial system.
### 3.4 Unlawful fettering of discretion
Lawyers often rely on internal guidelines rather than statutory criteria.
### 3.5 Failure to consider relevant considerations.
Clinical evidence is often disregarded.
### 3.6 Increased risk of invalid decisions
Adversarial processes undermine lawful decision making.
Requiring the NDIA to appeal through trained non-legal officers reduces these risks.
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- non-adversarial
- participant-centred
- rights-based
<!-- source-release-page: 110 -->
<a id="source-page-110"></a>
## Source release page 110
# Submission 2243
- accessible
- suppo1iive
- trnnsparent
Parliament explicitly rejected:
- adversarial review processes
- legalistic systems
- power imbalances
- welfare-style gatekeeping
The NDIA's use of external law fnms contradicts this intent.
Requiring the NDIA to represent itself restores alignment with parliamentaiy purpose.
5. Royal Commission Evidence
The Royal Commission identified systemic failmes m:
- adversari~l c~nduct
- retraumat1sation
- power imbalances
- lack of transparency
- poor evidence handling
- procedmal unfairness
Participants repo1ied:
- being cross-examined
- being intimidated
- being retraumatised
- being ove1whelmed
- being unable to challenge legal ai·guments
- being forced to disclose in elevant medical infonnation
The Commission emphasised the need for:
- non-adversai·ial review processes
- trauma-info1med practice
- disability-competent systems
- rights-based governance
The NDIA's use of external law fnms contradicts these fmdings.
6. Systemic Risk Analysis
Allowing the NOIA to use external law fnms creates systemic risks, including:
<!-- source-release-page: 111 -->
<a id="source-page-111"></a>
## Source release page 111
# Submission 2243
## 6.1 Increased Inequality
Participants cannot match the NDIA's legal resources.
## 6.2 Increased Retraumatisation
Adversarial processes cause psychological harm.
## 6.3 Increased Exclusion
People unable to navigate legal processes are excluded.
## 6.4 Increased Deterioration
Delays and stress worsen health.
## 6.5 Increased Crisis
Unfair decisions increase crisis-driven service use.
## 6.6 Increased Emotional Distress
Legal confrontation undermines wellbeing.
## 6.7 Increased Systemic Harm
Adversarial culture becomes entrenched.
Requiring the NDIA to represent itself mitigates these risks.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Prohibit the NDIA from using external law firms.
This includes private funds, government legal services, and barristers.
### 7.2 Require the NDIA to appear through trained non-legal officers.
Officers must be trained in:
- administrative law
- ~~D~~
- evidence handling
### 7.3 Require the ART to adopt an inquisitorial model.
The Tribunal must:
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## Source release page 112
# Submission 2243
- investigate
-
- seek evidence
- ensure fairness
7.4 Require transparency in all review processes.
Paiiicipants must understand:
- what evidence is required
- how decisions ai·e made
- why decisions ai·e made
7.5 Require human rights oversight.
Review processes must comply with the CRPD.
7.6 Require disability-led monitoring.
~~ People with disability must oversee review processes. ~~
8. Conclusion
Allowing the NDIA to use external law fnms violates:
- the CRPD
- the NDIS Act
- administrntive law
- pai·liamentaiy intent
- human rights principles
fi~:
- inequality
- retram~atisation
- exc1us10n
- deterioration
- cn s1s
- emotional disti·ess
- systemic haim
Requiring the NDIA to represent itself at the ART - through ti·ained, non-legal officers - is essential to restoring fairness, dignity, and human rights compliance.
RECOMMENDATION 14
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## Source release page 113
# Submission 2243
Strengthen Privacy Protections and Prohibit Irrelevant, Excessive, or Disproportionate Evidence Requests to Ensure Human Rights Compliance, Dignity, and Procedural Fairness
## 1. Recommendation
The National Disability Insurance Scheme (NDIS) must adopt strict statutory privacy protections and clear legal limits on the evidence the National Disability Insurance Agency (NDIA) can request from participants. This includes:
- prohibiting irrelevant, excessive, or disproportionate evidence requests
- prohibiting requests for historical or unrelated medical records
- prohibiting requests for sensitive information not directly relevant to functional impairment
- requiring all evidence requests to be necessary, proportionate, and rights-consistent
- requiring written justification for any additional evidence request
- requiring the NDIA to minimise intrusion into participants' private lives
- requiring the NDIA to comply with the CRPD, the Privacy Act, and administrative
- requirig thaumNDa-1IA·nfo1medd, disa~ility-compe~ndt evidendce handling ful collecti'on ~
- requmng t e to estroy 11Te1evant ev1 ence an cease un1aw
The Bill expands NDIA discretion and evidentiaiy powers without embedding corresponding privacy safeguards.
This creates a significant risk of human rights violations, privacy breaches, and unlawful decision making.
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure that people with disability are protected from:
- arbitrary interference
- privacy violations
- retraumatisation
The NDIA's current and proposed evidence-collection practices violate multiple CRPD - Article 3 - General Principles
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## Source release page 114
# Submission 2243
The CRPD requires respect for:
- dignity
- autonomy
- pnvacy
- integrity
Excessive evidence requests undennine these principles.
Article 5 - Equality and Non-Discrimination
Excessive evidence requests dispropo1iionately haim :
:::~:s:::~ri!issabilities ::::::~::!
- people with communication disabilities
- people with cognitive disabilities
- people with limited access to specialists
- people in rnral and remote areas
~~~~ This constitutes indirect discrimination.
Article 12 - Equal Recognition Before the Law
People with disability must have equal access to fair, lawful, and transpai·ent decision
~~ Excessive evidence requests undennine this right.
Article 17 - Protecting the Integrity of the Person
Requests for invasive or in elevant medical records violate bodily and psychological
~~ -
Article 22 - Respect for Privacy
The CRPD prohibits unnecessaiy intrusions into personal and medical info1mation.
The NDIA's cunent practices violate this obligation.
Article 28 - Adequate Standard of Living and Social Protection
Excessive evidence burdens unde1mine access to social protection.
2.2 Non-Retrogression Principle
~~ Increasing evidentiaiy and privacy intrusions constitutes a retrogressive measure ~~
because it:
- mcreases administr·ative burden
- mcreases exclusion
- mcreases retr·allllatisation
- reduces access to suppo1is
- reduces dignity and autonomy
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## Source release page 115
# Submission 2243
Such measures are prohibited unless strictly justified - and no such justification exists.
## 3. Administrative Law Analysis
Administrative law requires that evidence requests be:
- relevant
- proportionate
- lawful
- rational
- consistent with statuto1y purpose
The NDIA's current and proposed practices create systemic risks of unlawful decision
### 3.1 Irrelevant considerations
(Peko-Wallsend)
Requests for unrelated medical records are unlawful.
### 3.2 Legal unreasonableness
(Li; Stietton)
Excessive evidence requests are nTational and dispropo1iionate.
### 3.3 Procedural unfairness
(Kioa v West; SZBEL)
Participants are often not told:
- why evidence is requiI·ed
- ~ ri~~~
- what standard of evidence applies
### 3.4 Decisions inconsistent with statutory purpose
(Project Blue Sky)
The NDIS Act does not authorise intrusive evidence collection.
### 3.5 Privacy breaches
The NDIA often collects infonnation beyond what is necessaiy.
## 4. Parliamentary Intent Analysis
Hansai·d from 2012- 2013 demonsti·ates that Parliament intended the NDIS to be:
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## Source release page 116
# Submission 2243
- non-adversarial
- participant-centred
- rights-based
- respect of privacy
- protective obligation
Parliament explicitly rejected:
- medical gatekeeping
- excessive evidence burdens
- repeated proof of permanence
- intrusive information collection
The Bill contradicts this intent by expanding NDIA evidentiary powers without embedding privacy safeguards.
5. Royal Commission Evidence
The Royal Commission identified systemic failures in:
- evidence handling
- privacy protection
- trauma-informed practice
- procedural fairness
- administrative burden
Participants reported:
- being asked for irrelevant medical records
- being asked for childhood records
- being asked for psychiatric histories unrelated to functional impairment
- being retraumatised by repeated requests
- being forced to disclose deeply personal information
The Commission emphasised the need for:
- stronger privacy protections
- necessary and relevant evidence requirements
- trauma-informed practice
- proportionality
- relevance
The Bill does not address these failures.
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## Source release page 117
# Submission 2243
## 6. Systemic Risk Analysis
Excessive evidence requests create systemic risks, including:
### 6.1 Increased Exclusion
People unable to obtain specialist repo1is are excluded.
### 6.2 Increased Deterioration
Delays in evidence provision delay suppo1is.
### 6.3 Increased Crisis
People deteriorate while waiting for evidence to be accepted.
### 6.4 Increased Inequality
People with fewer resources face greater baITiers.
### 6.5 Increased Emotional Distress
Repeated evidence requests cause exhaustion and trauma.
### 6.6 Increased Privacy Violations
Requests for in elevant medical records violate human rights.
### 6.7 Increased Legal Vulnerability
Unlawful evidence collection increases appeals and judicial review.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
### 7.1 Prohibit irrelevant or excessive evidence requests.
Evidence must be strictly necessa1y and propo1iionate.
### 7.2 Prohibit requests for historical or unrelated medical records.
Privacy must be protected.
### 7.3 Require written justification for any additional evidence request.
This ensures transparency and procedural fairness.
### 7.4 Require the NDIA to minimise intrusion into participants' private lives.
Privacy is a human right.
### 7.5 Require trauma-informed, disability-competent evidence handling.
Evidence processes must not retraumatise paiiicipants.
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## Source release page 118
# Submission 2243
7.6 Require the NDIA to destroy irrelevant evidence.
Unlawfully collected infonnation must not be retained.
7.7 Require human rights oversight.
Evidence practices must comply with the CRPD.
8. Conclusion
Excessive, inelevant, or intmsive evidence requests violate:
- the CRPD
- the NDIS Act
- administrntive law
- parliamentaiy intent
- human rights principles
They cause:
- exclusion
- deterioration
- ~ns1s _
- mequa11ty
- emotional distress
- privacy violations
- systemic haim
The NDI$ must adopt strict privacy protections and prohibit nTelevant or excessive
evidence requests to ensure faiiness, dignity, and human rights compliance.
RECOMMENDATION 15
Require the NDIA to Publish Transparent Data, Decision-Making
Metrics, and Rights-Based Performance Indicators to Ensure
Accountability, Prevent Systemic Harm, and Enable Public Oversight
1. Recommendation
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## Source release page 119
# Submission 2243
The National Disability Insurance Agency (NDIA) must be required to publish comprehensive, rights-based, transparent data on:
- decision-making quality
- internal review outcomes
- ART outcomes
- edv1• dence-1d·equest p~ttern~
- e1 ays an processng tunes
- privacy breaches
- use of internal guidelines
- use of external contractors
: ~;:~:~:n~i:;:~re:phics
- human rights compliance metrics
This data must be:
- disaggregated
- rights-based
- accessible
- ~1pd ateddquaiterlyd. d
- m epen ent1y au 1te
- linked to CRPD obligations
- linked to administrative law standai·ds
- linked to pai·liamentaiy intent
The Bill expands NDIA discretion and administrative power without embedding transparency requirements.
This creates a significant risk of systemic haim, discrimination, and unlawful decision
Transparency is essential to ensurmg accountability, fairness, and human rights
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to ensure:
- accountability
- non-discrimination
- equal access to rights
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## Source release page 120
# Submission 2243
- monitoring of systemic outcomes
- public repo1iing on disability rights implementation
The NDIA's cunent lack of transparency violates multiple CRPD aiiicles.
## Article 3 - General Principles
The CRPD requires respect for:
-
- autonomy
- paiiicipation
- inclusion
Opaque decision-making systems undennine these principles.
## Article 4 - General Obligations
States must adopt administrative measures consistent with the CRPD.
Transparency is a core administrative obligation.
## Article 5 - Equality and Non-Discrimination
Without disaggregated data, systemic discrimination cannot be identified or addressed.
## Article 12 - Equal Recognition Before the Law
People with disability must have equal access to fair, lawful, and transpai·ent decision
## Article 19 - Living Independently and Being Included in the Community
Transparency is essential to ensuring access to suppo1is necessaiy for independent living.
## Article 33 - National Implementation and Monitoring
States must establish transpai·ent monitoring mechanisms.
### 2.2 Non-Retrogression Principle
Lack of transparency constitutes a retrogressive measure because it:
- reduces accountability
- reduces fairness
::::s:t~: ~c o;v:~·;~f~ ation
- increases risk of haim
Such measures ai·e prohibited unless strictly justified - and no such justification exists.
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## Source release page 121
# Submission 2243
## 3. Administrative Law Analysis
Administrative law requires that:
- decision making be transparent
- relevant considerations be taken into account
- inelevant considerations be excluded
- statuto1y pmpose be upheld
- procedmal fairness be observed
Lack of transparency creates systematic risks of unlawful decision making.
### 3.1 Procedural unfairness
(Kioa v West; SZBEL)
Paiiicipants cannot understand or challenge decisions without transparency.
### 3.2 Legal unreasonableness
(Li; Stretton)
Opaque systems increase the risk of iirntional decisions.
### 3.3 Decisions inconsistent with statutory purpose
T(PhrojeNDct Sky) . cl b'l' ~~ e 1BSluAect reqmres transparency an accountability.
### 3.4 Unlawful fettering of discretion
Lack of transparency conceals reliance on internal guidelines.
### 3.5 Failure to consider relevant considerations.(Peko-Wallsend)
Opaque systems conceal systemic eITors.
Transparency is essential to ensming lawful decision making.
## 4. Parliamentary Intent Analysis
Hansai·d from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- transpai·ent
- accountable
- paiiicipant-centred
- rights-based
- evidence-driven
Pai·liament explicitly rejected:
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## Source release page 122
# Submission 2243
- opaque decision-making systems
- hidden criteria
- secret guidelines
- unreviewable administrntive power
The Bill expands NDIA power without embedding transparency requirements,
contradicting parliamentaiy intent.
Transpai·ency is essential to restoring alignment with the original purpose of the
Scheme.
5. Royal Commission Evidence
The Royal Commission identified systemic failures m:
- ~~
- evidence handling
- decision-making quality
_s& • procedural fairness_
s&_s&
- administrative burden
- delays
- adversai·ial conduct
- privacy protection
Pailiicipants repo1i ed:
- not understanding decisions
- not knowing what evidence was required
- not knowing why evidence was disregai·ded
- not knowing how decisions were made
- not knowing how to challenge decisions
The Commission emphasised the need for:
-
- n ts-base governance
- public repo1iing
- independent oversight
The Bill does not address these failures.
Instead, it exacerbates them by expanding NDIA power.
6. Systemic Risk Analysis
Lack of transparency creates systemic risks, including:
~~ 6.1 Increased Discrimination ~
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## Source release page 123
# Submission 2243
Without disaggregated data, systemic bias cannot be identified.
## 6.2 Increased Exclusion
Opaque systems dispropo1iionately haim people with complex disabilities.
## 6.3 Increased Deterioration
Participants cannot challenge unfair decisions.
## 6.4 Increased Crisis
Lack of transparency mcreases crisis-driven service use.
## 6.5 Increased Inequality
People with fewer resomces ai·e dispropo1iionately haimed.
## 6.6 Increased Emotional Distress
Uncelianty unde1mines wellbeing.
## 6.7 Increased Legal Vulnerability
Opaque systems increase appeals and judicial review.
Transparency is essential to preventing systemic haim .
# 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must:
## 7.1 Publish disaggregated decision-making data.
- disability type
- age
- gender
- location
- cultural background
- suppo1i needs
## 7.2 Publish internal review and ART outcome data.
- ove1ium rates
- reasons for ove1ium
- patterns of en-or
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## Source release page 124
# Submission 2243
## 7.3 Publish evidence-request patterns.
Including:
- frequency
- type
- relevance
- proportionality
## 7.4 Publish privacy breach data.
- number of breaches
- type of breach
- co1Tective action
## 7.5 Publish human rights compliance metrics.
- CRPD_ alignmd ent d. . .
- equa11ty an non- IScnmmabon
- procedmal fairness indicators
## 7.6 Require independent auditing.
Audits must be public.
## 7.7 Require disability-led oversight.
People with disability must oversee transparency systems.
# 8. Conclusion
Lack of transparency violates:
- the CRPD
- the NDIS Act
- administrative law
- parliamentaiy intent
- human rights principles
fi~:
- discrimination
- exclusion
- deterioration
- cns1s
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## Source release page 125
# Submission 2243
- inequality
- emotional disti·ess
- systemic haim
The NDIS must adopt su-ict ti·ansparency requirements to ensure fairness,
accountability, and human rights compliance.
## RECOMMENDATION 16
Create a Unified, Rights-Based Reform Framework That Integrates
All Recommendations into a Coherent, Legally Enforceable,
CRPD-Aligned NDIS Governance Model
### 1. Recommendation
The Austi·alian Government must adopt a unified., rights-based reform framework
than integrates all preceding recommendations into a single, coherent, legally
enforceable governance model for the National Disability Insurance Scheme (NDIS).
This framework must:
- embed CRPD obligations directly into the NDIS Act
- consti·ain NDIA discretion
- limit Rules-making powers
- mandate Human Rights Impact Assessments
- su-engthen administi·ative capacity
- cenu-e lived experience
- preserve the insurance-based design
- establish independent oversight
- prohibit adversarial ~ dIA conduct h ART
- guai·antee access to pa1 suppo1t at t e
- su-engthen privacy protections
- mandate u-anspai·ency and public repo1ting
- ensure all refo1ms are co-designed with people with disability
This unified framework must be legislated, enforceable, and binding on:
- the NDIA
- the Minister
- the Depa1tment
- the ART
- all conti·actors
- all service providers
The Bill, as drafted, inti·oduces fragmented refo1ms that expand NDIA power without
embedding con esponding rights protections.
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## Source release page 126
# Submission 2243
A unified framework is essential to ensure coherence, legality, and human rights.
## 2. Human Rights Analysis
### 2.1 CRPD Obligations
The CRPD requires States to adopt comprehensive, coordinated, rights-based frameworks for disability governance.
Fragmented reforms violate this obligation.
#### Article 4 - General Obligations
States must adopt legislative and administrative measures consistent with the CRPD.
A unified framework is required to ensure compliance.
#### Article 5 - Equality and Non-Discrimination
Fragmented reforms create inconsistent protections and systemic discrimination.
#### Article 12 - Equal Recognition Before the Law
Rights must be embedded in law, not policy.
#### Article 19 - Living Independently and Being Included in the Community
Supports must be stable, predictable, and rights-based.
#### Article 33 - National Implementation and Monitoring
States must establish coordinated monitoring frameworks.
## 2.2 Non-Retrogression Principle
Fragmented reforms that expand administrative power without embedding rights protections constitute retrogressive measures.
A unified framework is required to prevent retrogression.
## 3. Administrative Law Analysis
Administrative law requires:
- **coherence**
- **rationality**
- **fairness**
- **lawful exercise of power**
### Fragmented reforms increase the risk of:
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## Source release page 127
# Submission 2243
- inconsistent decision making
- unlawful discretion
- procedural unfairness
- ldeg~l . unre~sonab_leness . h
- ec1s10ns mcons1stent wit statuto1y purpose
A unified framework reduces these risks.
## 4. Parliamentary Intent Analysis
Hansard from 2012- 2013 demonstrates that Parliament intended the NDIS to be:
- rights-based
- paiiicipant-centred
- transpai·ent
- consistent
- non-adversai·ial
- insurance-based
Pai·liament did not intend:
:::::~ ~~:~:.:::n~
- opaque systems
- adversai·ial processes
- privacy intrusions
- cost-containment models
A unified framework restores alignment with parliamentaiy intent.
## 5. Royal Commission Evidence
The Royal Commission found that:
- systemic failures ai·e interconnected
- refo1ms must be comprehensive
- rights must be embedded in law
- oversight must be independent
- administi·ative systems must be sti·engthened
- lived experience must be centi·al
- privacy must be protected
- adversarialism must be eliminated
The Bill does not implement these fmdings.
A unified framework is required to do so.
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## Source release page 128
# Submission 2243
## 6. Systemic Risk Analysis
Fragmented refo1ms create systemic risks, including:
- **6.1 Increased Inconsistency**
Different refonns operate in isolation.
- **6.2 Increased Discrimination**
Lack of coherence creates unequal outcomes.
- **6.3 Increased Administrative Burden**
Paiiicipants must navigate multiple systems.
- **6.4 Increased Deterioration**
Gaps in protections lead to haim .
- **6.5 Increased Crisis**
Fragmented systems increase crisis-driven service use.
- **6.6 Increased Legal Vulnerability**
Fragmented refo1ms increase appeals and judicial review.
- **6.7 Increased Systemic Harm**
Failures compound across systems.
A unified frainework mitigates these risks.
## 7. Detailed Reform Requirements
To comply with human rights obligations, the NDIS must adopt a unified framework that includes:
- **7.1 A Rights-Based Legislative Foundation**
Enter CRPD obligations directly into the NDIS Act.
- **7.2 Constrained NDIA Discretion**
Statuto1y criteria must guide all decisions.
- **7.3 Limited Rules-Making Powers**
Core rights must remain in primaiy legislation.
- **7.4 Mandatory Human Rights Impact Assessments**
All refonns must be assessed for CRPD compliance.
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## Source release page 129
# Submission 2243
## 7.5 Strengthened Administrative Capacity
Training, systems, and culture must be refo1med.
## 7.6 Lived Experience Leadership
People with disability must co-design all refo1ms.
## 7.7 Preservation of the Insurance-Based Design
Long-te1m investment must guide the Scheme.
## 7.8 Independent Oversight
Oversight must be external, empowered, and disability-led.
## 7.9 Prohibition on NDIA Legal Representation
The NDIA must appear through trained non-legal officers.
## 7.10 Guaranteed Access to Paid Support at the ART
Support Coordinators and Recove1y Coaches must be funded.
## 7.11 Strengthened Privacy Protections
Evidence requests must be necessa1y, propo1iionate, and rights-consistent.
## 7.12 Mandatory Transparency and Public Reporting
Data must be disaggregated, public, and independently audited.
# 8. Conclusion
A unified, rights-based refo1m framework is essential to ensuring that the NDIS:
- complies with the CRPD
- complies with administrative law
- aligns with parliamentaiy intent
- implements Royal Commission findings
- protects dignity,_ auhtonomy, and independence
- prevents systermc aim
- ensures fairness, transparency, and accountability
Fragmented refo1ms cannot achieve these outcomes.
Only a unified, legally enforceable, rights-based framework can.
### REC01\1MENDATION 17
Final Concluding Statement: A Unified Call for Rights-Based, Lawful,
Transparent, and Disability-Led NDIS Reform
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## Source release page 130
# Submission 2243
## 1. Conclusion
The National Disability Insurance Scheme (NDIS) stands at a critical turning point.
The refo1ms proposed in the National Disability Insurance Scheme Amendment
(Securing the NDIS for Future Generations) Bill 2026 represent the most significant
stucturing of the Scheme since its creation. Yet the Bill, as drafted, risks:
- unde1mining the rights of people with disability
- expanding executive and administi·ative power without safeguards
- weakening parliamentaiy oversight
- increasing discrirnination
- increasing administi-ative burden
- increasing reti-aumatisation
- creas~ g exclusion
- creas~ g cns1s
- mcreasmg systemic hann
The NDIS was created as a righdts_-bahsed, insura~ce-basehd, p~rticipafnt-centred,
h non-adversarial system grounde m t e Convent10n on t e Rights o Persons wit
Disabilities (CRPD).
The Bill depaiis from this foundation.
This submission has outlined a comprehensive, legally grounded, human-rights-aligned
reform framework that restores the NDIS to its original pmpose and ensures its
long-te1m sustainability, fairness, and integrity.
## 2. Summary of Key Findings
Across all recommendations, the evidence demonsti·ates that:
### 2.1 The Bill expands NDIA and Ministerial power without embedding rights protections.
This creates a risk of executive oven-each and unlawful decision making.
### 2.2 The Bill shifts the Scheme away from its insurance-based design.
This undennines long-tenn sustainability and increases long-tenn costs.
### 2.3 The Bill introduces retrogressive measures.
These violate the CRPD and international human rights law.
### 2.4 The Bill increases administrative burden and evidentiary requirements.
This disproporiionately haims people with complex disabilities.
### 2.5 The Bill lacks transparency, oversight, and accountability mechanisms
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## Source release page 131
# Submission 2243
This increases systemic risk and reduces public trust.
2.6 The Bill was not co-designed with people with disability.
This violates CRPD Article 4(3) and parliamentary intent.
2.7 The Bill does not address systemic failures identified by the Royal Commission
Instead, it exacerbates them.
## Summary of Key Recommendations
This submission proposes a unified, rights-based reform framework that includes:
- 3.1 Embedding CRPD obligations directly into the NDIS Act
Rights must be statutory, not discretionary.
- 3.2 Limiting Rules-making powers.
Core entitlements must remain in primary legislation.
- 3.3 Mandating Human Rights Impact Assessments
All reforms must be assessed for CRPD compliance.
- 3.4 Strengthening administrative capacity before reform.
The NDIA must be capable of lawful, fair, evidence-based decision making.
- 3.5 Centring lived experience in all reform processes.
People with disability must co-design all reforms.
- 3.6 Preserving the insurance-based design.
Long-term investment must guide the Scheme.
- 3.7 Establishing independent oversight.
Oversight must be external, empowered, and disability-led.
- 3.8 Prohibiting NDIA legal representation at the ART
The NDIA must appear through trained non-legal officers.
- 3.9 Guaranteeing access to paid NDIS-funded support at the ART
Support Coordinators and Recovery Coaches must be funded to assist participants.
- 3.10 Strengthening privacy protections.
Evidence requests must be necessary, proportionate, and rights-consistent.
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# Submission 2243
## 3.11 Mandating transparency and public reporting
Data must be disaggregated, public, and independently audited.
## 3.12 Creating a unified., rights-based reform framework.
Fragmented refo1ms must be replaced with a coherent governance model.
# 4. The Human Rights Imperative
The CRPD is not optional.
It is binding international law.
Australia has legal obligations to:
- prevent discrimination
- prevent retrogression
- ensure access to justice
- ensure transparency
- ensure accountability
- ensure dignity and autonomy
- ensure equal recognition before the law
- ensure inde_p~nd~nt ~vindg . . ak.
- ensure paii1c1pahon m ec1s10n m mg
The Bill, as drafted, does not meet these obligations.
The recommendations in this submission provide a cleai·, legally grounded pathway to
compliance.
## 5. The Administrative Law Imperative
Administrative law requires:
- lawful exercise of power
- rational decision making
- procedural fairness
- consistency
- adherence to statuto1y pmpose
The Bill increases the risk of administrative law breaches.
The recommendations in this submission restore legality and fairness.
## 6. The Parliamentary Intent Imperative
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## Source release page 133
# Submission 2243
The NDIS was created to:
- empower people with disability
- provide stable, predictable suppo1ts
- reduce inequality
- suphpod1t d~de_pendence
- up o1 1gmty
The Bill depaits from this intent.
The recommendations in this submission restore alignment with the original vision of
the Scheme.
## 7. The Royal Commission Imperative
The Royal Commission found:
- sd~ste~ni~ f~ilures
- 1Scnlll1Ilat10n
- retraumatisation
- adversai·ial conduct
- privacy violations
- lack of transpai·ency
- lack of oversight
- lack of disability competence
The Bill does not implement these findings.
The recommendations in this submission do.
## 8. Final Statement
The NDIS is not merely a program.
It is a human rights commitment, a social contract, and a promise made by
Pai·liament to people with disability.
That promise must be honoured.
The recommendations in this submission provide a cleai·, coherent, legally enforceable
pathway to:
- restore the rights of people with disability
- strengthen the integrity of the Scheme
- ensure long-te1m sustainability
- prevent systemic haim
- uphold Australia's human rights obligations
- honour the original vision of the NDIS
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## Source release page 134
# Submission 2243
The NDIS must remain a rights-based, participant-centred, insurance-based, transparent, accountable, disability-led system - not a cost-containment mechanism.
The future of the Scheme depends on it.
The dignity, safety, and independence of people with disability depend on it.
Australia's human rights obligations depend on it.
This is the moment to choose a rights-based future.