Submission 2551

ME/CFS Legal Resources Ltd

PO Box 1316, Sanctuary Cove Qld 4212 Email: info@mecfslegalresources.org.au

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

The Scheme to be established by this Bill will transform the lives of people with disability, their families and carers. For the first time they will have their needs met in a way that truly supports them to live with choice and dignity. It will bring an end to the tragedy of services denied or delayed and instead offer people with disability the care and support they need over their lifetimes. This is a complex Bill, yet at its heart is a very simple moral insight: Disability can affect any of us and therefore it affects all of us …

The National Disability Insurance Scheme represents a transformational approach to the provision of disability services in this country

The scheme will respond to each individual’s goals and aspirations for their lifetime, affording certainty and peace of mind for people with disability and their carers alike.

Former Prime Minister Julia Gillard (29 November 2012)

EXECUTIVE SUMMARY

This submission argues that the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 represents a fundamental shift in the character and operation of the National Disability Insurance Scheme.

While presented as a sustainability measure, the Bill is said to move the Scheme away from its original rights-based foundations and towards a more restrictive, compliance-driven and cost-containment model. This approach betrays the fundament intent of the Scheme and will be detrimental to the participants

Overview

ME/CFS Legal Resources submits that the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 represents one of the most significant restructurings of the National Disability Insurance Scheme since its creation. While the Bill is presented as a package of sustainability measures designed to secure the long-term viability of the Scheme, the cumulative effect of the amendments is to fundamentally alter the balance between participant rights, disability supports and administrative control. The submission argues that the Bill moves the NDIS away from its original rights-based, participant-centred foundations and towards a model increasingly focused on expenditure control, compliance, standardisation and administrative discretion.

The submission does not oppose the objective of ensuring the long-term sustainability of the Scheme. However, it submits that sustainability should be achieved through improved administration, fraud prevention, market stewardship, workforce development and better decision-making rather than through measures that restrict access, narrow support entitlements or transfer risk onto participants, carers and mainstream systems. It is the position of ME/CFS Legal Resources that

iii ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 iii

The Original Vision of the NDIS

The submission emphasises that the NDIS was established following the Productivity Commission’s landmark Disability Care and Support Inquiry and was conceived as a national social insurance scheme rather than a welfare program. The Productivity Commission identified disability support as an investment in social and economic participation capable of generating substantial long-term benefits for individuals, families, governments and society. The NDIS was designed to address the failures of fragmented disability systems and to provide people with disability with certainty, independence, inclusion and control over their lives.

Central to this vision are Sections 3 to 6 of the NDIS Act. These provisions establish the objects and principles of the Scheme, including dignity, equality, autonomy, participation, supported decision-making, individualised supports, choice and control, and recognition of the role of families and carers. The submission argues that these provisions are not merely aspirational. They are the legislative foundation of the Scheme and provide the benchmark against which all reforms must be assessed. The Bill is said to weaken these foundations by prioritising administrative efficiency and expenditure control over participant rights and support needs.

Disability Royal Commission Findings

A major theme of the submission is the significance of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The Royal Commission found that disability systems continue to be affected by ableism, paternalism, exclusion, inadequate safeguards and ineffective accountability mechanisms. It recommended stronger protections for people with disability, greater access to advocacy, enhanced safeguards, improved complaints systems, supported decision-making and greater involvement of people with disability in policy design and implementation. ME/CFS Legal Resources submits that the Bill moves in the opposite direction. Rather than strengthening participant protections, it expands administrative powers, increases compliance mechanisms, narrows access pathways and creates new

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

barriers to obtaining supports. The submission argues that the reforms are difficult to reconcile with the Disability Royal Commission’s overarching conclusion that disability reform should be grounded in human rights, inclusion, participation and self-determination.

Impact on People with ME/CFS and Long Covid

The submission places particular emphasis on the position of people with ME/CFS and Long Covid. It argues that these communities constitute systematically disadvantaged populations that already experience significant barriers across healthcare, disability services, education, employment, housing and social security systems. These barriers are compounded by historical stigma, misunderstanding, inadequate workforce knowledge, limited treatment options and ongoing disputes regarding the nature and severity of the conditions.

ME/CFS and Long Covid are characterised by post-exertional malaise, cognitive dysfunction, orthostatic intolerance, fluctuating functional capacity, activity intolerance and delayed deterioration following exertion. The submission argues that many of the proposed reforms rely upon concepts such as treatment availability, treatment appropriateness, functional-capacity assessment and alternative supports in ways that fail to adequately recognise the realities of these conditions. As a result, people with ME/CFS and Long Covid may be disproportionately disadvantaged by the proposed changes.

Four Barriers Created by the Bill

The submission identifies four recurring barriers that arise throughout the Bill and which disproportionately affect people with disability generally, and people with ME/CFS and Long Covid in particular.

Treatment Barriers The proposed amendments increasingly link access and support entitlement to treatment history, treatment availability and assumptions about future improvement. The submission argues that disability should not be denied because treatment exists in theory when treatment is inaccessible, unaffordable, ineffective, inappropriate or potentially harmful.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Evidentiary Barriers

The reforms create a greater reliance on functional-capacity assessments, specialist reports, treatment histories and detailed evidence gathering. The submission argues that obtaining such evidence is often expensive, difficult and, in some cases, harmful for people with severe disability.

Financial Barriers

Many participants already experience profound financial hardship. The cost of specialist consultations, reports, assessments, travel, investigations and treatment creates a significant obstacle to establishing eligibility and maintaining access to supports.

Structural Barriers

The reforms frequently assume that healthcare systems, foundational supports, family supports and mainstream services are available and capable of meeting participant needs. The submission argues that these assumptions are often inconsistent with reality, particularly in regional, rural and underserved communities.

Concerns with Key Amendments

The submission raises concerns regarding virtually every major category of reform proposed by the Bill.

1. Access and Eligibility

The reforms to disability and early intervention access requirements increase the evidentiary burden placed on applicants and create greater emphasis on treatment pathways, functional-capacity assessments and alternative supports. The submission argues that these changes make access more difficult for people with complex, fluctuating and poorly understood disabilities.

2. Reasonable and Necessary Supports

The amendments to Section 34 increase the importance of sustainability considerations, system boundaries and support exclusions. The submission argues

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

that supports designed to maintain function, prevent deterioration, reduce relapse and preserve independence may become harder to obtain.

Planning and Reassessment

Restrictions on reassessments, increased plan rigidity and fixed plan durations may reduce flexibility and create barriers to responding to changing support needs. This is particularly problematic for fluctuating conditions such as ME/CFS and Long Covid

Compliance and Administrative Powers

Expanded suspension powers, revocation powers, information-gathering powers and compliance mechanisms create significant risks for vulnerable participants who may struggle to respond to administrative requirements because of their disability.

Automation and Delegated Legislation

The submission expresses concern regarding automated decision-making, increased reliance on delegated legislation and the transfer of important policy decisions from Parliament to executive government. It argues that these reforms reduce transparency, accountability and participant protections.

Constitutional and Human Rights Concerns

The submission argues that the constitutional legitimacy of the NDIS is closely linked to Australia’s implementation of the Convention on the Rights of Persons with Disabilities (‘CRPD”). The rights-based objects and principles contained within Sections 3 to 6 of the Act provide a critical connection between the Scheme and Australia’s international obligations. The submission contends that a substantial departure from these principles raises questions regarding the constitutional and legal foundations of the reforms.

The submission further argues that the Bill weakens the practical implementation of CRPD principles including autonomy, participation, equality, independent living, supported decision-making and access to supports. The cumulative effect is said to move the Scheme away from a human-rights framework and towards a compliance and expenditure-management framework.

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Key Recommendations

The submission contains detailed recommendations addressing each amendment. Collectively, those recommendations seek to:

Preserve the rights-based foundations of the NDIS.
Protect Sections 3 to 6 as the guiding framework of the Scheme.
Retain individualised assessment and decision-making.
Recognise fluctuating, episodic and invisible disabilities.
Protect access for people with ME/CFS, Long Covid and similar conditions.
Preserve access to supports that maintain function and prevent deterioration.
Limit reliance on automated decision-making.
Strengthen procedural fairness and review rights.
Restrict excessive reliance on delegated legislation.
Ensure compliance with the CRPD and Disability Royal Commission recommendations.
Promote genuine consultation and co-design with people with disability.
Ensure sustainability reforms do not undermine participant rights.

Concluding Submission

ME/CFS Legal Resources respectfully submits that the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (Cth) fundamentally alters the character of the NDIS. Although framed as a sustainability measure, the cumulative effect of the amendments is to shift the Scheme away from its original purpose as a rights-based social insurance framework and towards a system increasingly defined by eligibility restrictions, administrative control, compliance obligations and expenditure management. The submission argues that many of the reforms are inconsistent with the foundational provisions of the NDIS Act, the findings of the Disability Royal Commission, Australia’s obligations under the Convention on the Rights of Persons with Disabilities and the original vision articulated by the Productivity Commission. The submission further contends that the reforms will disproportionately affect people who already experience the greatest barriers to participation, including people with ME/CFS, Long Covid and other fluctuating, invisible and energy-limiting disabilities. Through the creation of treatment barriers, evidentiary barriers, financial

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

barriers and structural barriers, the Bill risks making access to disability supports dependent upon healthcare-system access, financial capacity, evidentiary resources and administrative compliance rather than disability and support need. These impacts are likely to be most severe for those with complex conditions, limited resources, severe illness and limited access to specialist services.

Accordingly, ME/CFS Legal Resources urges the Committee to reconsider the Bill in its current form and to assess every amendment against the foundational objects and principles of the NDIS Act, the recommendations of the Disability Royal Commission, the Convention on the Rights of Persons with Disabilities and the original purpose of the Scheme. The organisation submits that sustainability and participant rights are not mutually exclusive objectives. A sustainable NDIS must remain grounded in dignity, equality, autonomy, inclusion, participation, choice and control. Any reform that undermines those principles risks undermining the very purpose for which the NDIS was created.

Geoffrey Hallmann Chair

ix ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 ix

SUMMARY OF RECOMMENDATIONS

Submission 1 – Section 24: Disability Requirements

Recommendation 1 – Preserve a Holistic and Individualised Access Framework
Recommendation 2 – Prevent Permanence Becoming a Treatment-Exhaustion Test
Recommendation 3 – Only Realistically Accessible Treatment Should Affect Eligibility
Recommendation 4 – Protect Applicants from Evidentiary Burdens Beyond Their Capacity
Recommendation 5 – Require Explicit Recognition of Post-Exertional Malaise and Delayed Deterioration
Recommendation 6 – Preserve the Permanence Test for Conditions Without Established Curative Treatment
Recommendation 7 – Protect People with Severe and Very Severe Disability
Recommendation 8 – Require Recognition of Specialist, Lived-Experience and Carer Evidence
Recommendation 9 – Protect Applicants from Practitioner Bias, Stigma and Knowledge Deficits
Recommendation 10 – Do Not Exclude Applicants on the Basis of Theoretical Alternative Supports
Recommendation 11 – Protect Applicants from Poverty-Based Exclusion

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Recommendation 12 – Preserve Parliamentary Oversight, Transparency and CRPD Compliance
Recommendation 13 – Establish an Independent NDIS Assessment Pathway for Applicants Unable to Access Appropriate Medical Evidence
Recommendation 14 – Grandfather Existing Participants and Transitional Applicants

Submission 2 – Section 25: Early Intervention Requirements

Recommendation 15 – Retain the Current Broad and Preventative Operation of Section 25
Recommendation 16 – Recognise Prevention of Deterioration as a Valid Early Intervention Outcome
Recommendation 17 – Do Not Require Treatment Pathways that are Unavailable, Inaccessible or Ineffective
Recommendation 18 – Require Decision-Makers to Consider the Practical Availability of Treatment and Support
Recommendation 19 – Do Not Exclude Applicants on the Basis of Theoretical Alternative Supports
Recommendation 20 – Provide an NDIA-Funded Assessment Pathway Where Applicants Have No Access to Appropriate Medical Practitioners
Recommendation 21 – Recognise Post-Exertional Malaise (PEM) in Early Intervention Decision-Making
Recommendation 22 – Require Contextual Assessment of Functioning
Recommendation 23 – Protect Applicants with Severe and Very Severe ME/CFS and Long Covid
Recommendation 24 – Recognise Specialist, Lived-Experience and Carer Evidence
Recommendation 25 – Preserve Review Rights and Procedural Safeguards

Submission 3 – Section 27: Rules

Recommendation 26 – Preserve Individualised and Longitudinal Assessment
Recommendation 27 – Require Recognition of Fluctuation, Relapse and Delayed Deterioration
Recommendation 28 – Require Recognition of Post-Exertional Malaise and Sustainable Capacity
Recommendation 29 – Require Contextual and Whole-Person Assessment
Recommendation 30 – Prevent Reliance on One-Off Assessments
Recommendation 31 – Expand Acceptable Forms of Evidence
Recommendation 32 – Remove Evidentiary Barriers Created by Disability
Recommendation 33 – Protect People with Severe and Very Severe ME/CFS or Long Covid
Recommendation 34 – Prevent Treatment Assumptions and Theoretical Capacity Models
Recommendation 35 – Require Consultation, Transparency and Human Rights Safeguards
Recommendation 36 – Protect Applicants from Clinical Bias, Scepticism and Outdated Treatment Assumptions

Submission 4 – Section 34: Reasonable and Necessary Supports

Recommendation 37 – Protect Supports that Reduce Disability-Related Risk and Harm
Recommendation 38 – Preserve Individualised Support Decision-Making
Recommendation 39 – Ensure Sustainability Does Not Override Disability-Related Need

Recommendation 40 – Recognise Maintenance and Prevention Supports as Legitimate Outcomes
Recommendation 41 – Protect Supports for Fluctuating and Post- Exertional Disabilities
Recommendation 42 – Do Not Rely Upon Theoretical Alternative Supports
Recommendation 43 – Protect Practical Supports Essential to Independence
Recommendation 44 – Protect Severe and Very Severe Participants
Recommendation 45 – Protect Families and Informal Carers
Recommendation 46 – Recognise Lived Experience and Longitudinal Evidence
Recommendation 47 – Require CRPD-Consistent Interpretation
Recommendation 48 – Do Not Penalise Participants for Historical Research Neglect
Recommendation 49 – Preserve Professional Clinical and Disability- Support Judgment
Recommendation 50 – Preserve Treating Practitioner and Participant- Specific Evidence
Recommendation 51 – Require Disability-Led Consultation and Co- Design
Recommendation 52 – Fund Condition-Specific Support Worker Training

Submission 5 – Sections Affecting Participant Plans

Recommendation 53 – Preserve a Broad Understanding of Disability- Related Support Need
Recommendation 54 – Preserve the Functional Assessment Approach
Recommendation 55 – Protect Supports that Maintain Function and Prevent Deterioration

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Recommendation 56 – Protect Supports for Fluctuating and Energy-Limiting Disabilities
Recommendation 57 – Protect Participants with Multiple and Interacting Impairments
Recommendation 58 – Protect Participants with Comorbidities
Recommendation 59 – Preserve Whole-Person Assessment
Recommendation 60 – Protect Participants Whose ME/CFS or Long Covid Was Not the Gateway Disability
Recommendation 61 – Protect Mobility, Participation and Independence Supports

Submission 6 – Sections 47A–48: Planning and Reassessment

Recommendation 62 – Preserve Responsive Reassessment Rights
Recommendation 63 – Recognise Fluctuating, Relapsing and Episodic Disabilities
Recommendation 64 – Recognise Post-Exertional Malaise and Delayed Deterioration
Recommendation 65 – Recognise Changes in Informal Supports and Living Circumstances
Recommendation 66 – Remove Unreasonable Evidentiary Barriers
Recommendation 67 – Protect Severe and Very Severe Participants
Recommendation 68 – Preserve Preventative and Early-Intervention Responses
Recommendation 69 – Ensure Reassessment Decisions Consider the Participant’s Circumstances as a Whole
Recommendation 70 – Maintain a Rights-Based and Participant-Centred Reassessment Framework

xiv ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 xiv

Submission 7 – Sections Dealing with Plans

Recommendation 71 – Preserve Continuity of Supports
Recommendation 72 – Reassessment Should Be Triggered by Need Rather Than Time
Recommendation 73 – Recognise Fluctuating and Relapsing Disabilities
Recommendation 74 – Protect Participants from NDIA Administrative Delays
Recommendation 75 – Preserve Review Rights and Procedural Safeguards
Recommendation 76 – Prevent Underspend from Being Used as Evidence of Reduced Need
Recommendation 77 – Recognise Workforce Shortages and Market Failure

Submission 8 – Sections Concerning Participant Plans and Administration

Recommendation 78 – Suspension Should Be a Measure of Last Resort
Recommendation 79 – Require Consideration of Disability-Related Barriers to Engagement
Recommendation 80 – Require Consideration of Information Already Held by the NDIA
Recommendation 81 – Require Reasonable Adjustments and Alternative Engagement Pathways
Recommendation 82 – Protect Participants with Severe and Very Severe Disabilities
Recommendation 83 – Preserve Continuity of Essential Supports
Recommendation 84 – Promote Supported Decision-Making Rather Than Enforcement

xv ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 xv

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Recommendation 85 – Preserve a Rights-Based Interpretation of Section 30(1A)

Recommendation 86 – Require Actual Availability of Alternative Supports
Recommendation 87 – Prohibit Cost-Shifting Between Systems
Recommendation 88 – Recognise the Distinction Between Treatment and Disability Support
Recommendation 89 – Protect Participants from Service-System Gaps
Recommendation 90 – Preserve a Participant-Centred and Rights-Based Framework

Submission 10 – New Compliance and Enforcement Provisions

Recommendation 91 – Distinguish Fraud from Disability-Related Incapacity
Recommendation 92 – Require Consideration of Disability-Related Barriers
Recommendation 93 – Provide Reasonable Adjustments and Compliance Supports
Recommendation 94 – Strengthen Procedural Fairness Safeguards
Recommendation 95 – Protect Vulnerable Participants During Compliance Processes
Recommendation 96 – Preserve a Rights-Based Integrity Framework

Submission 11 – New Provider-Control Provisions

Recommendation 97 – Preserve Participant Choice of Plan Manager

xvi ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 xvi

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Recommendation 98 – Preserve Provider Diversity
Recommendation 99 – Protect Disability-Specific Expertise
Recommendation 100 – Protect Continuity of Support Relationship
Recommendation 101 – Recognise Plan Management as an Accessibility Support
Recommendation 102 – Protect Regional, Rural and Remote Participants
Recommendation 103 – Strengthen Anti-Fraud Measures Without Undermining Choice and Control

Submission 12 – Sections Concerning Pricing Arrangements

Recommendation 104 – Pricing Decisions Must Preserve Participant Access to Supports
Recommendation 105 – Protect Provider Diversity and Specialist Expertise
Recommendation 106 – Require Transparent and Evidence-Based Pricing Reviews
Recommendation 107 – Protect Regional, Rural and Complex-Support Markets

Submission 13 – New Administrative Provisions (Automated Decision-Making)

Recommendation 108 – Limit Automated Decision-Making to Routine Administrative Functions
Recommendation 109 – Require Meaningful Human Oversight Before Adverse Action
Recommendation 110 – Preserve Full Review and Appeal Rights
Recommendation 111 – Require Transparency and Explainability

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 xvii

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Recommendation 112 – Protect Participants with Cognitive, Communication and Fluctuating Disabilities
Recommendation 113 – Protect People with Severe and Very Severe Disability
Recommendation 114 – Require Independent Oversight and Auditing
Recommendation 115 – Require Co-Design with People with Disability

Submission 14 – Transitional and Governance Provisions (Indexation and Legacy Plans)

Recommendation 116 – Protect Participants from Support Loss During Transition
Recommendation 117 – Require Indexation to Reflect Real Support Costs
Recommendation 118 – Preserve Review Rights
Recommendation 119 – Ensure Transparency and Participant Consultation

Recommendation 120 – Preserve Core Eligibility Concepts in the Act
Recommendation 121 – Require Disability-Led Consultation Before Rules
Recommendation 122 – Protect Fluctuating and Energy-Limiting Disabilities
Recommendation 123 – Preserve Parliamentary Scrutiny and Review Rights

xviii - ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 xviii

SUMMARY OF RECOMMENDATIONS

ABOUT ME/CFS LEGAL RESOURCES LTD

What is ME/CFS Legal Resources? - 5 ME/CFS Legal Resources Board - 6 Advisors - 6 Lived Experience - 6

INTRODUCTION

Preamble - 7 What is ME/CFS? - 7 What is Long Covid? - 9 Systematically Disadvantaged Populations - 11 Barriers to Access and Administration - 11

PREAMBLE

Purpose of the NDIS - 13 Benefits of the NDIS - 13 (i) Economic Benefits of the Scheme - 13 (ii) The Productivity Commission’s Diagnosis of System Failure - 14 (iii) Disability Support as Economic Investment - 15 (iv) Economic Benefits Identified by the Productivity Commission - 16 (v) The Productivity Commission’s Cost-Benefit Analysis - 17 (vi) Monetary Returns and Subsequent Economic Modelling - 18 (vii) Contemporary Relevance - 19

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

(viii) Summary………………………………………………………………………………. 19 3. Objects and Foundational Principles of the NDIS Act ………………………………. 20 (i) The Importance of Sections 3 – 6 of the Act …………………………………….. 21 (ii) Relevance of Section 3 — Objects ………………………………………………… 23 (iii) Relevance of Section 4 — General Principles …………………………………… 23 (iv) Relevance of Section 5 — Principles Guiding Supports ……………………….. 25 (v) Relevance of Section 6 — Role of Families and Carers ………………………… 27 (vi) Broader Legal and Policy Significance ……………………………………………. 28 (vii) Summary……………………………………………………………………………………… 29 4. Disability Royal Commission ……………………………………………………………… 30 (i) Overview of the Australian Disability Royal Commission ……………………….. 30 (ii) Key Findings of the Disability Royal Commission ………………………………… 30 (iii) Findings with Respect to the NDIS ………………………………………………… 39 (iv) Undertaking of the Albanese Government ………………………………………. 47 (v) Significance of the Albanese Government’s Undertaking ……………………….. 54

THE BILL………………………………………………………………………………………. 55

Overall Effect of the Bill ………………………………………………………………… 55
Structural Shift …………………………………………………………………………….. 55

CONSTITUTIONAL ISSUES ……………………………………………………… 57

Constitutional Foundation for the NDIS Act ……………………………………….. 57 (i) External Affairs Power — s 51(xxix) ……………………………………………… 57 (ii) Social Welfare and Benefits Powers — s 51(xxiiiA) …………………………… 58 (iii) Corporations Power — s 51(xx) ………………………………………………….. 59 (iv) Executive and Spending Powers — ss 61 and 81 - 83 ……………………….. 60 (v) State Referrals and Cooperative Federalism — s 51(xxxvii) …………………. 60 (vi) Incidental Power — s 51(xxxix) ………………………………………………… 61

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Questionable Constitutional Foundation

Submission as to Unconstitutionality

Core Issues

The Importance of Sections 3 - 6

Why is the Bill Unconstitutional?

Failure to Consult

Fundamental Need to Consult

The Legal Foundation: “Nothing About Us Without Us”

Consultation is Not a Courtesy — It is a Human Rights Obligation

The NDIS Was Originally Built on Co-Design

Labor’s Historical Position on Consultation

Why the Consultation Process Was Inadequate?

Democratic Legitimacy and the NDIS

The Importance of Trust

Conclusion

Impact of the Amendments

The Proposed Amendments

Overall Effect of the Bill

Changes to Access Criteria

SUBMISSION 1: Section 24 — Disability Requirements

SUBMISSION 2: Section 25 — Early Intervention Requirements

SUBMISSION 3: Section 27 — Rules

SUBMISSION 4: Section 34 — Reasonable and Necessary Supports Direct Relationship Requirement

SUBMISSION 5: Sections affecting participant plans Restrictions on Plan Reassessments

iii ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 iii

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(i) SUBMISSION 6: Sections 47A–48 (Planning and Reassessment)……….. 264 Plan Duration and End Dates……………………………………………………………. 288 (i) SUBMISSION 7: Sections dealing with plans ……………………………….. 288 Suspension and Revocation Powers ………………………………………………….. 303 (i) SUBMISSION 8: Sections concerning participant plans and administration …………………………………………………………………………….. 303 Mainstream Service Exclusion Reforms ……………………………………………… 325 (i) SUBMISSION 9: Sections 24, 34 and related provisions ………………… 325 Fraud and Integrity Amendments ……………………………………………………… 335 (i) SUBMISSION 10: New compliance and enforcement provisions ……. 335 Plan Management Provider Regulation ……………………………………………… 347 (i) SUBMISSION 11: New provider-control provisions ………………………. 347 Pricing Powers ……………………………………………………………………………….. 365 (i) SUBMISSION 12: Sections concerning pricing arrangements …………. 365 Automated Decision-Making ……………………………………………………………. 375 (i) SUBMISSION 13: New administrative provisions …………………………. 375 Indexation and Legacy Plans …………………………………………………………….. 393 (i) SUBMISSION 14: Transitional and governance provisions …………….. 393 Rule-Making Powers ……………………………………………………………………….. 403 (i) SUBMISSION 15: Sections 209 and related rule-making provisions … 403

CONCLUSION …………………………………………………………………………. 416
REFERENCES …………………………………………………………………………. 418

ABOUT ME/CFS LEGAL RESOURCES LTD

What is ME/CFS Legal Resources?

ME/CFS Legal Resources was first conceived in 2000 in response to the very clear intersection between ME/CFS and the law that pervaded the experience of the disease. In January 2001, the first ME/CFS Legal Resources website was launched. The organisation has expanded into various social media services and evolved into a company limited by guarantee, a registered charity.

ME/CFS Legal Resources recognises the role of the legal and social determinants of health in terms of their influence on health outcomes for people with ME/CFS and Long-Covid. ME/CFS Legal Resources is committed to reducing the health and legal inequities that exist within the ME/CFS and Long-Covid communities with a view to improving health outcomes for people with these conditions.

ME/CFS Legal Resources services the ME/CFS and Long-Covid communities by:

Providing information and resources with a focus on the intersection with the law and legal issues;
Advocating for the interests of the community across various forums including the Federal and State governments;

Working with patients, groups and other entities in the interests of the community;

ME/CFS Legal Resources Board Our Board is as follows:

Chair – Geoffrey Hallmann, BBus(Hons), LLB(Hons), DipLegPrac, DipFinPlan, LLM(EntGov), MClinEpid, MPH, MBA
Director – Blake Edwards, LLB, GradDipLegPrac, MAPS
Director – Michelle O’Brien, DipEn (N)

Advisors Our Advisors are as follows:

Dr Hūhana Jade Barclay, PhD, MPH, MBA, MCAP
Dr John Whiting FRACP (Aust), MB, BA, BCh, BAO (Dub)
Gerald Hoskins Grad Dip Hlth Mgt, AFCHSE

Lived Experience The combined lived experience of ME/CFS from our contributors to this document totals almost 120 years.

Our contributors bring multidisciplinary expertise spanning law, public, allied and primary health, as well as research and advocacy focused on ME/CFS. Our cultural background is diverse, including indigenous voices. With the emergence of Long COVID, many have expanded their advocacy to include this area as well. Their insights are informed by years of engagement with thousands of individuals within these communities.

6 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

1. INTRODUCTION

Preamble

Systematically disadvantaged populations are groups that consistently face barriers that are grounded in systemic inequities that disproportionately harm the group based on factors such as race, ethnicity, disability, gender, geographical location, socioeconomic status or other characteristics. Such barriers prevent the group from fully participating in society by restricting access to resources, opportunities, privileges and rights.

The group is effectively pushed to the margins of society, being denied the opportunity to fully participate in the social, political and economic elements of life. The impact of such social exclusion leads to negative consequences such as poorer health outcomes in the domains of health, education, employment and housing. Social participation and reduced opportunities result.

What is ME/CFS?

ME/CFS is first and foremost, a disability.

ME/CFS is a serious, chronic, acquired, multisystem disease characterised by profound dysfunction of neurological, immunological, autonomic, endocrine and energy metabolism systems. It is not merely a condition of fatigue; rather, fatigue represents only one manifestation of a broader pathological process affecting multiple physiological systems. The illness is distinguished by a pathological

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

inability to produce sufficient energy on demand and an abnormal response to exertion.

The cardinal feature of ME/CFS is post-exertional malaise (also described as post-exertional neuroimmune exhaustion), whereby physical, cognitive, emotional or orthostatic exertion results in a disproportionate worsening of symptoms and functional capacity. This exacerbation may be delayed and can persist for days, weeks or longer after the triggering activity. Unlike ordinary fatigue, recovery is prolonged and often incomplete.

Individuals with ME/CFS commonly experience significant neurological impairment, including cognitive dysfunction, impaired concentration, slowed information processing, short-term memory deficits and difficulties with executive functioning. Sleep dysfunction is also common, with patients frequently reporting unrefreshing sleep, altered sleep patterns and disturbed circadian rhythms. Pain is another frequent feature and may include myalgia, arthralgia, headaches and widespread musculoskeletal discomfort.

Autonomic nervous system dysfunction is frequently observed and may manifest as orthostatic intolerance, neurally mediated hypotension, postural orthostatic tachycardia syndrome, temperature dysregulation and gastrointestinal disturbance. Immunological manifestations may include recurrent flu-like symptoms, tender lymph nodes, recurrent sore throats and evidence of immune activation. Endocrine and metabolic abnormalities have also been reported, suggesting impairment in cellular energy production and utilisation.

7 Bruce M Carruthers et al, ‘Myalgic Encephalomyelitis: International Consensus Criteria’ (2011) 270(4) Journal of Internal Medicine 327, 328–330 (Carruthers et al (2011)). 8 Ibid 238 - 331. 9 Carruthers (2003) (n 6) 22 - 24. 10 Carruthers (2011) (n 8) 329 - 331. 11 Ibid 331 - 333. 12 Carruthers et al (2003) (n 6) 17 - 20. 13 Ibid 18 - 21. 14 Carruthers et al (2011) (n 8) 333 - 335. 15 Carruthers et al (2003) (n 6) 18 - 21. 16 Carruthers et al (2011) (n 8) 325 - 337.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

ME/CFS can affect individuals of all ages and levels of prior health and often follows an infectious illness, although other triggering events have been identified. The severity of the condition ranges from mild impairment through to severe and very severe disease, where individuals may become housebound or bedbound and require assistance with basic activities of daily living. Functional impairment can be profound and has been shown to significantly affect employment, education, family relationships and social participation.

The International Consensus Criteria describe ME/CFS as a disease process involving complex interactions between neurological, immune, autonomic and energy metabolism dysfunction, resulting in substantial reductions in physical and cognitive capacity. Although considerable progress has been made in understanding the biological basis of the illness, no universally accepted diagnostic biomarker currently exists and diagnosis remains primarily clinical. Management therefore focuses on symptom control, energy conservation, pacing and treatment of comorbid conditions while research continues into underlying pathophysiological mechanisms and potential therapeutic interventions.

What is Long Covid?

Long Covid is a disability. It is an evolving condition with an evolving evidence base. Long COVID, also referred to as Post-COVID-19 Condition is a condition that develops in some people following infection with the SARS-CoV-2 virus and is recognised by Australian and international health authorities as a serious, multisystem disorder. The condition is characterised by the persistence, recurrence or emergence of symptoms following the acute phase of COVID-19 infection that cannot be explained by an alternative diagnosis. The World Health

17 Carruthers et al (2003) (n 6) 11- 12. 18 Carruthers et al (2011) (n 8) 327 - 329. 19 Ibid 327 - 337. 20 Ibid 327 - 338. 21 Ibid 327 - 338. 22 Carruthers et al (2003) (n 8) 24 - 27; Carruthers (2011) (n 8) 336 - 338. 23 Australian Institute of Health and Welfare, Long COVID in Australia – A Review of the Literature (Report, 2024), https://www.aihw.gov.au/getmedia/9592f439-9b96-4589-a55d-6b04e262e5e1/aihw-phe-318.pdf.aspx (‘AIHW’). 24 Australian Government Department of Health and Aged Care, National Post-Acute Sequelae of COVID-19 (PASC) Plan (Report, 15 February 2024), https://www.health.gov.au/sites/default/files/2024-02/national-post-acute-sequelae-of-covid-19-plan.pdf (‘AGDH’).

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Organization defines Post-COVID-19 Condition as symptoms occurring usually within three months of the initial infection and lasting for at least two months.25

Long COVID affects multiple organ systems and may involve respiratory, cardiovascular, neurological, immunological, autonomic and metabolic dysfunction.26 Common symptoms include profound fatigue, post-exertional symptom exacerbation (‘PESE’), cognitive impairment (‘brain fog’), memory difficulties, sleep disturbance, breathlessness, chest pain, palpitations, dizziness and musculoskeletal pain.27 Many people also report sensory disturbances, gastrointestinal symptoms and significant reductions in physical and cognitive functioning.28

A major feature increasingly recognized within Long COVID is PESE, also referred to in ME/CFS literature as post-exertional malaise (‘PEM’).29 PESE describes the worsening of symptoms following physical, cognitive, emotional or sensory exertion that would previously have been tolerated.30 This deterioration may be delayed by hours or days and can persist for prolonged periods.31

Recent Australian developments further acknowledge the connection between Long COVID and ME/CFS within clinical practice. In 2025, the National Health and Medical Research Council established a Guideline Development Committee tasked with developing clinical practice guidelines for ME/CFS and related conditions, including Long COVID, postural orthostatic tachycardia syndrome and fibromyalgia.32 The Committee specifically identified PEM as a core symptom requiring consideration in future Australian guidance.33 This reflects an increasing recognition that lessons learned from decades of ME/CFS research may be critical

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Submission 2551

Understanding, diagnosing and managing Long COVID in Australia

A substantial body of emerging research has identified important clinical and pathophysiological overlap between Long COVID and ME/CFS.

Although substantial progress has been made in understanding Long COVID, its precise biological mechanisms remain under investigation. Current hypotheses include persistent immune activation, viral persistence, endothelial dysfunction, autonomic nervous system impairment, microvascular abnormalities and disturbances in cellular energy production. The relationship between Long COVID and ME/CFS remains an area of active research; however, there is growing consensus that the two conditions share significant clinical features and may involve overlapping pathophysiological pathways. Consequently, lessons learned from decades of ME/CFS research are increasingly being applied to the assessment, management and study of Long COVID in Australia and internationally.

Systematically Disadvantaged Populations

ME/CFS and Long-Covid are a systematically disadvantaged population. Aside from being a disability, they are conditions that disproportionately impact females. For many decades there has been an ongoing systemic barrier that has prevented access to research funding, healthcare, supports, housing, employment, education and economic assistance. In our submission, it has played a significant barrier in access to the National Disability Insurance Scheme (‘NDIS’).

Barriers to Access and Administration

ME/CFS Legal Resources emphasises the importance of explicitly recognising the ME/CFS and Long COVID communities as systematically disadvantaged populations in the access t6 and administration of the NDIS. We believe that significant barriers remain, and therefore this inquiry must consider these when

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Determining the appropriateness of the amendments the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (‘the Bill’) intends to make to the Act in their current form.

ME/CFS Legal Resources Position:

ME/CFS Legal Resources respectfully submits that the changes encompassed within the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 are:

Contrary to the original purpose and intent of the Scheme;
Contrary to the foundational provisions of the Act set out within Sections 3 through 6 of the Act with respect to the objects and principles;
Contrary to Australia’s fulfilment of its obligations under the United Nations Convention on the Rights of Persons with Disabilities;
Contrary to the recommendations of the Disability Royal Commission;
Contrary to the Australian Constitution;
Detrimental to people with disabilities;

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

PREAMBLE

Purpose of the NDIS

The National Disability Insurance Scheme (‘NDIS’) represents one of the most significant social policy reforms in Australian history. While the scheme is frequently discussed in terms of disability rights, social justice, and human dignity, its origins were equally grounded in economic reasoning.

The purpose of the NDIS is to provide funding and support for people with permanent and significant disability so they can live more independently, participate socially and economically, and exercise greater choice and control over their lives.

Its introduction represented a shift from welfare-based disability services toward an individualised rights-based support model.

Benefits of the NDIS

(i) Economic Benefits of the Scheme

The Productivity Commission’s landmark 2011 report, Disability Care and Support,⁴⁰ provided the intellectual and economic foundation for the establishment of the NDIS and ultimately informed the enactment of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).

Contrary to the persistent narratives of recent times that frame the NDIS primarily as a budgetary expenditure, the Productivity Commission conceived the scheme as a long-term social and economic investment capable of generating substantial returns for individuals, governments and the broader Australian economy. The Commission’s analysis was based upon the proposition that the existing disability support system was fragmented, inequitable, inefficient and economically wasteful.

It concluded that significant disability support should be regarded as a form of social

⁴⁰ Productivity Commission, ‘Disability Care and Support Inquiry Report: Inquiry Report No. 154’, Productivity Commission, (Report, 10 August 2011), https://www.pc.gov.au/inquiries-and-research/disability-support/report/.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

insurance rather than welfare expenditure and that the economic benefits generated by a properly funded disability support system would substantially exceed its costs.41

These findings remain highly relevant in contemporary debates concerning NDIS sustainability, expenditure restraint and legislative reform, including the proposed Bill that is the subject of this current inquiry.

(ii) The Productivity Commission’s Diagnosis of System Failure

The Productivity Commission review Australia’s pre-NDIS disability support systems and concluded it to be an ineffective patchwork of programs that failed to meet the inherent needs of people with disability and their families. Support services varied significantly between jurisdictions and access was often determined by geography rather than need. Many therefore individuals experienced substantial unmet support requirements.42

The Commission concluded:

The disability support system is underfunded, unfair, fragmented and inefficient and gives people with a disability little choice.43

This finding was exceptionally important. Rather than classifying disability as an exclusively social issue, the Commission found disability to be a source of broader economic inefficiency. The Commission recognised that inadequate support generated downstream costs across multiple sectors, including healthcare, welfare, housing, education and employment.

People with disability who were unable to access appropriate supports frequently experienced deteriorating health outcomes, social exclusion, reduced workforce participation and increased reliance upon government services. The Commission further recognised that these costs extended beyond people with disability themselves. Family members and informal carers often reduced their own labour force participation to provide support, resulting in lost productivity, reduced taxation

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

revenue, diminished superannuation accumulation and increased long-term economic vulnerability.44

Disability Support as Economic Investment

One of the most important conceptual shifts introduced by the Productivity Commission was its treatment of disability support as an investment rather than a cost. The Commission rejected the traditional welfare model and instead proposed an insurance-based framework designed to maximise independence, participation and economic contribution.

The proposed National Disability Insurance Scheme was modelled on principles commonly associated with social insurance schemes. Under this approach, investment in early intervention and appropriate supports would reduce future liabilities by preventing deterioration, enhancing functional capacity and promoting participation in economic and social life.

The Commission stated:

There should be a new national scheme – the National Disability Insurance Scheme (NDIS) – that provides insurance cover for all Australians in the event of significant disability.45

The significance of this statement cannot be overstated. The Commission conceived the NDIS as a national risk-pooling mechanism similar in principle to Medicare. Just as society collectively funds healthcare because illness can affect anyone, the Commission argued that disability should be addressed through a comprehensive insurance framework that protects all Australians against the risk of significant disability.

The Commission further observed:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

People would know that, if they or a member of their family acquired a significant disability, there would be a properly financed, comprehensive, cohesive system to support them.46

Under this model, expenditure on disability supports was not viewed as a transfer payment but rather as an investment capable of generating measurable economic returns through improved productivity, increased employment and reduced dependence upon crisis services.

Economic Benefits Identified by the Productivity Commission

The Productivity Commission identified a wide range of economic benefits that would flow from the implementation of the NDIS.

It anticipated increased workforce participation among people with disability. By providing supports that enhanced independence and functional capacity, the NDIS would enable many individuals to engage more fully in employment and education;
The Commission anticipated substantial gains through increased labour force participation by carers. Many family members, particularly women, had historically withdrawn from employment or reduced working hours to provide unpaid support. Improved formal support arrangements would enable carers to return to the workforce, thereby increasing economic productivity and reducing long-term financial disadvantage;
The Commission identified the economic benefits associated with early intervention. Timely and appropriate supports were expected to reduce the progression of disability-related complications, decrease reliance on high-cost crisis services and improve long-term outcomes;
The Commission recognised broader social and economic benefits arising from improved health, education, community participation and quality of life. While some of these outcomes are difficult to quantify in

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purely monetary terms, the Commission emphasised that they nonetheless constitute genuine economic benefits because they contribute to overall societal wellbeing and productivity.

Importantly, the Commission concluded:

The benefits of the scheme would significantly outweigh the costs.47

This statement encapsulates the Commission’s overarching economic conclusion and is arguably one of the most important findings underpinning the NDIS.

(v) The Productivity Commission’s Cost-Benefit Analysis Perhaps the most striking aspect of the Productivity Commission’s economic analysis was its conclusion that the NDIS would easily satisfy a formal cost-benefit assessment. The Commission observed:

The NDIS would only have to produce an annual gain of $3800 per participant to meet a cost-benefit test.48

This statement established the threshold level of economic benefit required for the scheme to justify its expenditure. The Commission then concluded:

Given the scope of the benefits, that test would be passed easily.49

These findings reflected the Commission’s assessment that even modest improvements in employment participation, independence, health outcomes and social engagement would generate economic benefits sufficient to outweigh the costs of the scheme.

47 Ibid, Executive Summary. 48 Ibid, Executive Summary. 49 Ibid, Executive Summary.

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Importantly, the Commission was not merely suggesting that the NDIS was socially desirable. Rather, it was concluding that the scheme represented economically rational public policy that would generate measurable returns to society and government over time.

(vi) Monetary Returns and Subsequent Economic Modelling Although the Productivity Commission did not calculate a specific dollar-for-dollar return-on-investment ratio, subsequent economic analyses have sought to quantify the broader economic effects of NDIS expenditure.

Research undertaken by Per Capita concluded that:

For every dollar invested in the NDIS, the Australian economy receives approximately $2.25 in economic activity. 50

Per Capita further estimated that a reduction of $1 billion in NDIS expenditure would result in approximately $2.25 billion in lost economic activity, highlighting the extent to which NDIS expenditure has become embedded within the broader Australian economy. 51

Similar findings have been cited by the disability sector and academic commentators. For example, researchers associated with the University of New South Wales concluded that NDIS spending generates substantial multiplier effects through employment, service provision and consumer spending. 52

It is important, however, to distinguish these later economic analyses from the Productivity Commission’s original inquiry. The Productivity Commission itself did not rely upon a $2.25 return figure. Rather, its conclusions were based upon the broader proposition that increased participation, enhanced productivity, reduced

50 Per Capita, ‘Not a One-Stop Shop: The NDIS in Australia’s social infrastructure’, (Webpage, 30 March 2023), https://percapita.org.au/our_work/not-a-one-stop-shop-the-ndis-in-australias-social-infrastructure/. 51 Per Capita, ‘False Economy: The Economic Benefits of the NDIS and the Consequences of Government Cost Cutting’, (Report, 3 November 2021) https://percapita.org.au/wp-content/uploads/2021/11/NDS_031121_per-capita-report.pdf. 52H Dickinson and S Yates, ‘A decade on, the NDIS has had triumphs, challenges and controversies. Where to from here?’, The Conversation, (Article, 30 June 2023), https://theconversation.com/a-decade-on-the-ndis-has-had-triumphs-challenges-and-controversies-where-to-from-here-208463.

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

welfare dependency and improved social outcomes would collectively generate benefits that substantially exceeded the costs of the scheme.

(vii) Contemporary Relevance The Productivity Commission’s economic rationale remains highly relevant to current discussions surrounding NDIS reform and its sustainability. Various Legislative proposals in recent years, including the current Bill, have been aimed at controlling expenditure, purported justified by arguments around fiscal sustainability and budgetary pressures. ME/CFS Legal Resources submits that such arguments going against the Commission’s original analysis which made very clear that expenditure on disability supports should not be evaluated solely through the lens of annual budget costs.

The Commission viewed the NDIS as a long-term economic investment designed to maximise participation, independence and productivity.

Its findings indicated that policy assessments should consider not only immediate expenditure but also the economic value generated through improved workforce participation, reduced reliance on informal care, increased taxation revenue and enhanced quality of life.

Many disability advocates argue that the original objectives reflected in Sections 3 through 6 of the Act were themselves based upon the Productivity Commission’s assumption that disability support generates both social and economic returns. The concepts of social and economic participation, independence, choice, control and community inclusion contained within the Act reflect the Commission’s underlying economic logic that investment in capability produces both individual and societal benefits.

(viii) Summary The Productivity Commission’s 2011 inquiry established the intellectual and economic foundations of the National Disability Insurance Scheme. The Commission concluded that Australia’s existing disability support arrangements imposed significant economic and social costs on individuals, families and governments. It proposed a national insurance model based upon investment

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

principles, arguing that appropriate support would increase participation, improve productivity, reduce future liabilities and enhance quality of life.

Central to its analysis was the conclusion that the NDIS would “significantly outweigh the costs” and would “easily” satisfy a formal cost-benefit test. These findings continue to provide a powerful framework for evaluating contemporary reforms and underscore the importance of viewing disability support not merely as government expenditure but as a long-term investment in Australia’s social and economic future.

It is against this background, we would submit, that the appropriateness of this Bill should be considered.

Objects and Foundational Principles of the NDIS Act

Sections 3 through 6 of the Act are foundational provisions that establish the foundational objects, philosophy, interpretive and operational framework of the scheme. These sections are critically important because they define the purpose of the scheme and guide how the Act is interpreted and decisions are made by the National Disability Insurance Agency (‘NDIA’), as well as how participants are to be treated within the scheme.53

The provisions reflect a human rights–based and social inclusion model of disability, rather than a purely medical or welfare model.

The provisions are not merely aspirational statements. They function as interpretive principles which influence:

the exercise of statutory powers;
decisions concerning supports and funding;
assessment of ‘reasonable and necessary’ support’;
tribunal and court interpretation;
procedural fairness;
participant autonomy and rights; and

53 Australian Law Reform Commission, ‘Equality, Capacity and Disability in Commonwealth Laws’ (ALRC Report No. 124, 24 November 2014), https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_124_whole_pdf_file.pdf.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

the overall operation of the NDIS

One of the key statutory objects is:

… to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.

(i) The Importance of Sections 3 – 6 of the Act

Normative Foundation of the NDIS

Sections 3 through 6 therefore serve to articulate the objects and values underpinning the scheme. They make clear that the NDIS is not merely a funding mechanism, but a legislative framework designed to advance:

dignity;
autonomy;
equality;
social participation;
inclusion;
self-determination; and
human rights.

These provisions reflect Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities54 (‘CRPD’).

Section 4(1) expressly provides:

People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

This provision is important because it rejects paternalistic assumptions about disability and affirms substantive equality.

54 United Nations Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Role in Guiding Interpretation

These sections also provide interpretive objects and principles. They are relied upon when determining:

eligibility disputes;
what constitutes “reasonable and necessary supports”;
participant autonomy;
planning decisions;
procedural fairness obligations; and
the proper construction of ambiguous provisions.

Where operative provisions are unclear, the objects and principles assist decision-makers in construing the Act consistently with its underlying purpose.

For example, the principles reinforce that decision-making should maximise:

participant independence;
social and economic participation; and
choice and control.

Their importance have been born out in much of the jurisprudence concerning NDIS plans and supports.

Constraint in Administrative Decision Making

The NDIA is required to act consistently with these objects and principles. The provisions therefore operate as:

guiding considerations;
mandatory contextual factors;
safeguards against arbitrary decision-making; and
benchmarks for lawful exercise of discretion.

Decisions that are inconsistent with the objects and principles may be vulnerable to:

merits review;

judicial review; or
criticism as inconsistent with the statutory purpose.

(ii) Relevance of Section 3 — Objects Section 3 sets out the primary purposes and objectives of the NDIS. It establishes what Parliament intended the scheme to achieve. The objects include:

- supporting the independence and social participation of people with disability;
- enabling people with disability to exercise choice and control;
- providing reasonable and necessary supports;
- facilitating nationally consistent disability supports; and
- promoting high quality and innovative supports.

One of the key statutory objects is:

… to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.

Section 3 is important because it establishes the entire philosophy and purpose of the NDIS. It confirms that the scheme is not merely a welfare or funding mechanism, but a participant-centred system intended to:

- promote autonomy;
- support inclusion;
- maximise independence; and
- improve participation in society.

The objects clause also guides courts and tribunals when interpreting uncertain or ambiguous provisions of the legislation. Decisions made under the Act are expected to be consistent with these stated objectives.

(iii) Relevance of Section 4 — General Principles Section 4 is the central philosophical provision of the Act. It establishes broad principles concerning:

equality;
autonomy;
participation;
independence; and
dignity.

There are four key themes to the importance of Section 4:

Equality and Human Dignity Section 4 affirms equal rights and inherent dignity. In particular it states:

People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.

This reflects the transition from institutionalisation and dependency to participation and citizenship.

Choice and Control One of the most important principles appears in Section 4(8):

People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

This provision is highly significant because:

it recognises autonomy;
it rejects overprotective paternalism; and
it embeds participant-directed decision-making into the scheme.

The concept of “choice and control” is one of the defining features of the NDIS.

Individualised Support

Section 4 recognises that disability support must be tailored to individual circumstances. This underpins:

personalised plans;
participant goals;
individual funding packages; and
flexible support arrangements.

The section promotes full inclusion in community life. This is important because the NDIS was intended to address systemic exclusion experienced by people with disability in:

education;
employment;
housing;
transport;
healthcare; and
civic participation.

(iv) Relevance of Section 5 — Principles Guiding Supports

Section 5 concerns how supports should be provided. It emphasises:

innovation;
early intervention;
best practice;
community inclusion; and
evidence-based supports. There are three key themes to the importance of Section 5:

Enhancement of Independence by Supports

Supports are not intended merely to maintain survival - they are intended to:

build capacity;
increase independence; and
improve long-term participation. This is central to the insurance-based model of the NDIS.

Person-Centred Supports Section 5 reinforces that supports should respond to:

• the participant’s goals;
• aspirations;
• cultural background; and
• individual needs.

This principle is particularly relevant when assessing:

• plan reviews;
• support categories; and
• therapeutic interventions.

Early Intervention The Act recognises the importance of early supports to:

• reduce future functional decline;
• improve developmental outcomes; and
• reduce long-term costs.

This principle is especially important for:

• children;
• psychosocial disability;
• degenerative conditions; and
• complex disabilities.

Relevance of Section 6 — Role of Families and Carers

Section 6 recognises the importance of:

families;
carers; and
informal support networks. However, it also carefully balances participant autonomy. There are three key themes to the importance of Section 6:

Carer Recognition

The Act acknowledges the significant role carers play in supporting participants. This is important because many participants rely heavily upon:

parents;
spouses;
siblings; or
informal carers.

Sustainability of Caring Relationships

The section recognises that carers should themselves be supported to maintain their wellbeing. This reflects the practical reality that participant outcomes can be undermined by:

carer burnout;
financial stress; and
social isolation

Participant Autonomy is Paramount

Section 6 does not subordinate participants to family wishes. The Act maintains that the person with disability remains the central decision-maker wherever possible. This balance is legally and ethically significant.

Broader Legal and Policy Significance

Shift from welfare to rights-based framework

Sections 4 through 6 embody a major transformation in Australian disability law and policy. Historically, disability services often operated under:

charitable;
medical; or
paternalistic models. The NDIS instead adopts:
rights;
participation;
empowerment; and
self-determination.

Influence on Reasoning in Tribunals and Courts

The objects and principles frequently influence:

NDIA decision making;
Tribunal reasoning;
Federal Court interpretation; and
Funding determinations. When determining what supports are reasonable and necessary, tribunals often refer to:
participant dignity;
functional participation; and
autonomy

Human Rights Significance

The provisions strongly reflect principles from the United Nations Convention on the Rights of Persons with Disabilities55, including:

equality before the law;
independent living;
community inclusion;
personal autonomy; and
participation in society. The NDIS Act is therefore not merely administrative legislation; it is also rights-oriented social legislation.

Summary

Sections 3 through 6 of the Act are critically important as the foundational provisions that define the objects, values, principles and interpretive framework of the NDIS, by:

articulating the human rights philosophy underpinning the scheme;
guide statutory interpretation;
shaping administrative discretion;
protecting participant autonomy and dignity;
promoting social and economic participation; and
recognising both individual independence and the importance of families and carers. Collectively, these provisions ensure that the NDIS operates not merely as a funding system, but as a framework intended to advance equality, inclusion, self-determination and citizenship for people with disability in Australia.

55 Ibid.

Disability Royal Commission

Overview of the Australian Disability Royal Commission

The Australian Disability Royal Commission, formally known as the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability56, operated from 2019 to 2023 and investigated violence, abuse, neglect, and exploitation experienced by people with disability across all areas of Australian life, including education, healthcare, housing, justice, employment, the NDIS, guardianship, and institutional care.

The Commission delivered a Final Report spanning 12 volumes and 222 recommendations.

Its central conclusion was that many harms experienced by people with disability are systemic, entrenched, and driven by structural inequality and ableism rather than isolated failures.

Key Findings of the Disability Royal Commission

Violence, Abuse, Neglect and Exploitation are Systemic

The Commission found that people with disability experience:

disproportionately high rates of physical violence,
sexual abuse,
coercion,
neglect,
financial exploitation,
emotional abuse, and
institutional mistreatment.

The Commission concluded these harms occur:

across all age groups,
in both public and private settings,

within systems supposedly designed to provide care and protection.

A recurring finding was that many incidents were ignored, minimised or inadequately investigated. Complaints systems were often inaccessible or ineffective.

Segregation and Institutionalisation Increase Risk of Harm

One of the strongest themes in the report was that segregated environments create conditions where abuse flourishes. The Commission identified significant risks in:

group homes,
congregate disability accommodation,
special schools,
psychiatric institutions,
supported employment settings,
prisons and detention centres,
aged care facilities, and
restrictive residential settings.

The Commission found that segregation:

reduces autonomy,
limits oversight,
isolates people from community supports, and
creates power imbalances that facilitate abuse.

Several Commissioners concluded Australia should progressively move toward fully inclusive systems.

Australia’s Disability Systems are Built on Ableism

The Commission found that throughout Australian institutions there remains embedded:

negative assumptions about disability,
paternalism,
low expectations, and

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systemic discrimination.

The report concluded that rather than being treated as equal citizens with rights, people with disability are frequently treated as:

- objects of care,
- risks to manage, or
- burdens on systems.

The Commission characterised this as systemic ableism.

Human Rights Protections are Inadequate

The Commission found Australia has failed to fully implement the rights contained in the CRPD.

Key failures included:

- weak enforcement mechanisms,
- fragmented legal protections,
- inaccessible justice systems, and
- inconsistent safeguards between states and territories.

The Commission found existing anti-discrimination laws are often reactive, difficult to enforce and insufficiently preventative.

Restrictive Practices and Forced Treatment are Overused

The Commission found widespread use of:

- chemical restraint,
- physical restraint,
- seclusion,
- forced treatment,
- involuntary detention, and
- substitute decision-making.

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The Commission concluded many practices:

violate human rights,
lack proper oversight,
are used for convenience rather than necessity, and
disproportionately affect people with cognitive and psychosocial disability.

Education Systems Exclude Students with Disability

The Commission found many students with disability experience:

exclusion from mainstream education,
bullying,
physical restraint,
reduced expectations,
inadequate supports,
shortened school hours, and
informal discouragement from enrolment.

The Commission concluded Australia’s education systems are not genuinely inclusive.

Special schools and segregated educational settings were a major area of disagreement between Commissioners, although there was broad agreement that mainstream schools require major reform.

Employment Systems Entrench Poverty and Exclusion

The Commission found:

employment participation rates for people with disability remain very low,
supported employment arrangements can be exploitative,
subminimum wages undermine equality, and
disability employment systems often fail to transition people into open employment.

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The Commission found many people with disability remain trapped in poverty despite participation in work programs.

The Justice System Fails People with Disability

The Commission identified major failures involving:

policing,
courts,
prisons,
guardianship systems, and
forensic mental health systems.

People with cognitive and psychosocial disabilities were found to be:

overrepresented in prisons,
vulnerable to indefinite detention,
poorly supported during legal proceedings, and
frequently criminalised for disability-related behaviours.

First Nations People with Disability Experience Compounded Disadvantage

The Commission found First Nations people with disability experience:

intersecting racism and ableism,
over-policing,
higher rates of institutionalisation,
poorer health outcomes,
reduced service access, and
significant barriers to culturally safe support.

The report stressed the need for disability reform to incorporate self-determination principles for First Nations communities.

The NDIS Has Improved Lives but Contains Serious Problems

The Commission recognised the importance of the National Disability Insurance Agency and the National Disability Insurance Scheme. However, it found:

access processes are complex and inequitable,
many participants experience adversarial decision-making,
safeguards are inadequate,
workforce shortages undermine service quality, and
market-based models can expose participants to exploitation and instability.

People with Disability Must Lead Reform

A major finding was that disability policy has historically been designed without meaningful involvement of people with disability. The Commission strongly endorsed:

co-design,
supported decision-making,
disability leadership, and
the principle “Nothing about us without us.”

monitor disability rights,
investigate systemic issues,
coordinate complaints,
undertake education and advocacy, and
improve accountability.

Reform Education Toward Inclusion Recommendations included:

major investment in inclusive education,
better teacher training,
national disability education standards reform,
increased supports in mainstream schools,
reduction of exclusionary practices, and
stronger rights enforcement.

Some Commissioners recommended a long-term phase out of segregated schooling.

Reduce Segregated Living Arrangements The Commission recommended:

reducing reliance on congregate disability housing,
expanding individualised housing supports,
increasing accessible housing, and
promoting community inclusion.

Eliminate or Strictly Regulate Restrictive Practices Recommendations included:

nationally consistent laws,
independent oversight,
stronger reporting requirements, and

progressive elimination of restrictive practices wherever possible.

The Commission also recommended reforms to:

guardianship,
substitute decision-making, and
involuntary treatment frameworks.

End Subminimum Wages and Reform Disability Employment

The Commission recommended:

phasing out subminimum wage arrangements,
reforming supported employment systems,
improving transition pathways into open employment, and
increasing economic participation.

Improve Safeguards and Complaint Systems

The Commission recommended:

accessible complaints mechanisms,
independent advocacy services,
stronger incident reporting systems,
whistleblower protections, and
improved oversight of service providers.

Reform the Justice System

Key recommendations included:

better disability screening in police and courts,
alternatives to imprisonment,
ending indefinite detention,
increased legal supports,
disability training for justice personnel, and
stronger procedural safeguards.

Reform the NDIS

Recommendations included:

simplifying access processes,
improving participant advocacy,
strengthening safeguards,
increasing workforce capability,
reducing adversarial review practices, and
improving service quality regulation.

Strengthen Supported Decision-Making

The Commission recommended moving away from substitute decision-making models toward:

supported decision-making,
autonomy,
dignity of risk, and
recognition of legal capacity.

Increase Disability Leadership and Co-Design

The Commission recommended governments:

embed co-design across policy development,
fund representative disability organisations, and
ensure people with disability lead reform processes.

Overall Conclusion

The Commission’s overarching conclusion was that Australia must move from a segregated, paternalistic and welfare-oriented disability system, to a human rights-based, inclusive and participatory society.

The Final Report framed disability reform as a civil rights issue, a structural reform agenda, and a national obligation to ensure equality, dignity and inclusion for people with disability.

38 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Findings with Respect to the NDIS

The Royal Commission’s findings concerning the NDIS were extensive and, in many respects, highly critical of the structure, regulation and operation of the scheme. The Commission accepted that the NDIS had significantly improved access to supports, autonomy and choice for many people with disability, but concluded that systemic failures within the NDIS environment had also enabled violence, abuse, neglect and exploitation to occur.

Central Findings About the NDIS

The NDIS had improved autonomy — but “choice and control” was not being realised safely The Commission recognised that the NDIS represented a major shift away from paternalistic welfare models toward individualised funding and participant-directed supports. However, it found that the promise of “choice and control” was often undermined by:

power imbalances between participants and providers,
inadequate information and support,
poor market stewardship,
lack of accessible complaints systems,
thin or failed markets in regional and remote areas,
workforce instability, and
participant dependence on providers.

The Commission found that many participants were not exercising genuine informed choice because they lacked:

independent advocacy,
decision-making support,
culturally appropriate services,
accessible communication, or
meaningful alternatives between providers.

A key theme throughout Volume 10 was that “choice” without safeguards could expose participants to exploitation and abuse.

The NDIS market model created systemic risks

The Commission found that the market-based design of the NDIS had unintentionally created environments in which abuse and neglect could flourish. It identified several structural problems:

Thin markets and provider dependence

Participants in rural, remote and specialist support settings often had little or no genuine provider choice. This increased vulnerability because participants could become effectively trapped with unsafe or poor-quality providers.

Casualisation and workforce instability

The Commission heard evidence of:

poorly trained workers,
insecure employment,
high workforce turnover,
insufficient supervision, and
inadequate understanding of human rights obligations.

It found these factors contributed directly to unsafe service delivery and poor participant outcomes.

Commercial incentives conflicting with participant wellbeing

The Commission expressed concern that some providers prioritised financial sustainability and revenue generation over participant rights, safety and quality of care. It identified risks arising from:

vertically integrated providers,
conflicts of interest,
support coordination tied to service delivery, and
provider dominance over participant decision-making.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The NDIA was criticised for administrative complexity and participant harm

The Commission found that NDIA processes frequently caused distress and disadvantage to participants. Evidence demonstrated:

inaccessible planning processes,
poor communication,
inconsistent decision-making,
adversarial reviews and appeals,
inadequate recognition of psychosocial and cognitive disability, and
insufficient trauma-informed practices.

The Royal Commission found that many participants experienced the NDIA as bureaucratic, difficult to navigate and, at times, harmful.

The Commission also concluded that:

participants from culturally and linguistically diverse backgrounds,
First Nations participants,
people with intellectual disability, and
people with complex communication needs experienced heightened barriers within the NDIS system.

The NDIS Commission was found to be insufficiently effective as a regulator

One of the strongest themes in Volume 10 was criticism of the NDIS Commission’s regulatory effectiveness. The Royal Commission found the NDIS Commission:

was overly reactive rather than preventative;
relied excessively on complaints despite underreporting;
had inconsistent enforcement;
lacked visibility and accessibility for participants;
had inadequate intelligence gathering;
and did not sufficiently monitor systemic risk.

The Commission found many participants:

did not know how to complain,
feared retaliation if they complained,
lacked support to navigate complaint processes, or
believed complaints would not produce outcomes. The report also identified shortcomings in:
incident reporting,
restrictive practice oversight,
worker screening,
audit processes, and
provider registration systems.

5. Human rights were not sufficiently embedded within the NDIS A foundational finding of Volume 10 was that disability services — including the NDIS — were not consistently grounded in a human rights framework. The Commission repeatedly linked violence, abuse and neglect to failures to recognise:

autonomy,
dignity,
equality,
supported decision-making, and
freedom from coercion. The Commission stressed that disability services should not merely provide supports, but should actively promote:
social inclusion,
independence,
self-determination, and
participation in community life.

Volume 10 contained 33 recommendations overall, many directly affecting the NDIS framework.

The major NDIS-related recommendations included the following.

Embed human rights into disability services

The Commission recommended that the NDIS Commission develop and fund programs to assist providers to embed human rights principles into service design and delivery. This included:

training,
organisational culture reform,
co-design with people with disability, and
rights-based service standards.

The recommendation was grounded in the Convention on the Rights of Persons with Disabilities (CRPD).

Independent support coordination

A major recommendation was that support coordinators should be independent from service delivery providers to address conflicts of interest. The Commission found that where providers both:

coordinated supports, and
delivered funded services,

participants could be pressured or channelled into using the provider’s own services, undermining genuine choice and creating safeguarding risks.

This recommendation has become one of the most significant reform proposals arising from Volume 10.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Strengthen regulation and enforcement powers of the NDIS Commission

The Royal Commission recommended substantial expansion of the NDIS Commission’s:

compliance powers,
intelligence capability,
enforcement activities, and
proactive monitoring functions. The Commission proposed:
greater unannounced auditing,
stronger registration requirements,
better data sharing,
improved incident monitoring,
and enhanced oversight of restrictive practices.

Improve complaints mechanisms and participant protections

The Commission recommended:

accessible complaints systems;
trauma-informed complaint handling;
stronger whistleblower protections;
participant advocacy supports;
and independent complaint assistance services. The report recognised that many participants feared losing services or housing if they complained about providers.

Expand independent advocacy and supported decision-making

The Commission strongly supported:

increased funding for independent advocacy;
supported decision-making frameworks; and

better safeguards for people with cognitive disability and communication impairments.

The report treated advocacy as a critical safeguard against abuse and exploitation within the NDIS system.

Improve workforce capability and training

Recommendations included:

mandatory workforce capability standards;
improved disability rights education;
trauma-informed training;
cultural competency; and
better supervision of workers.

The Commission viewed workforce reform as essential to reducing abuse and neglect.

Reduce segregation and congregate models of support

Although discussed across several volumes, Volume 10 reinforced concerns about:

group homes,
congregate disability settings, and
segregated service models.

The Commission found such environments increased the risk of violence, abuse and neglect due to:

institutional power imbalances,
isolation,
lack of oversight, and
reduced participant autonomy.

Several Commissioners supported a gradual transition away from segregated models of accommodation and support.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Improve data collection, transparency and oversight

The Commission recommended:

better national data systems,
mandatory reporting,
public transparency regarding provider performance, and
stronger information-sharing between agencies. It found that fragmented oversight arrangements limited the ability to identify systemic abuse patterns.

Overall Significance of the Findings

The findings in Volume 10 were significant because they reframed the NDIS not simply as a funding scheme, but as a human rights system requiring strong safeguards, regulation and accountability. The Royal Commission effectively concluded that:

marketisation alone cannot ensure safety,
participant choice requires structural supports,
safeguards must be proactive rather than complaint-driven, and
disability services must be grounded in human rights principles rather than merely transactional service delivery. The report also highlighted an ongoing tension within the NDIS between:
economic efficiency and market flexibility; and
human rights, safety and relational support needs.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(iv) Undertaking of the Albanese Government

The Albanese Government’s undertaking in response to Volume 10 of the Disability Royal Commission was set out in Disability Royal Commission Australian Government Response: Volume 10 – Disability Services.

The Government’s undertaking can be summarised as a commitment to:

implement substantial safeguarding reforms within disability services and the NDIS;
strengthen the NDIS Quality and Safeguards Commission;
embed human rights principles into disability service delivery;
coordinate reforms with the NDIS Review and broader NDIS sustainability reforms;
work jointly with states and territories through the Disability Reform Ministerial Council; and
progressively implement accepted or “accepted in principle” recommendations after consultation with people with disability.

The Formal Government Response to Volume 10

The Government expressly acknowledged the significance of Volume 10 and its findings concerning violence, abuse, neglect and exploitation in disability services and within the NDIS regulatory framework.

The response stated:

Volume 10 examines how disability service providers, and the NDIS Quality and Safeguards Commission (NDIS Commission)

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The Albanese Government accepted or accepted in principle the majority of Volume 10 recommendations, although some were deferred for further consultation or consideration.

Core Undertakings of the Albanese Government Regarding Volume 10

1. Commitment to Stronger NDIS Safeguards and Regulation

One of the clearest undertakings was the strengthening of safeguarding and regulatory oversight under the NDIS. The Minister for the National Disability Insurance Scheme (NDIS) and Minister for Government Services, the Honourable Bill Shorten stated:

We have been making record investments in people and technology at the NDIS Commission to ensure they have the resources they need to keep participants safe.

The Government also committed funding specifically directed toward safeguarding reforms, including:

“$15.6 million to unify national disability quality and safeguarding arrangements”;
“$4.4 million for consistent approaches to community visitor schemes”;
“$2.6 million for continued delivery of the National Disability Abuse and Neglect Hotline”; and
“$1.2 million to develop targets to reduce and eliminate restrictive practices.”

These commitments directly reflected Volume 10’s criticisms of fragmented safeguards, weak complaint systems, inconsistent oversight and inadequate prevention mechanisms.

58 Ibid. 59 R Rishworth, B Shorten and M Butler, ‘Government response to the Disability Royal Commission’, (Website, 31 July 2024), https://alp.org.au/news/government-response-to-the-disability-royal-commission/ (‘ALP Response’).

Commitment to Human Rights-Based Reform

A major theme of Volume 10 was that disability services and the NDIS lacked a sufficiently embedded human rights framework. The Albanese Government expressly adopted the language of rights-based reform.

Minister for Social Services, the Honourable Amanda Rishworth stated:

We are committed to continued and sustained effort across all jurisdictions … to ensure the implementation of agreed recommendations leads to real and lasting change for people with disability.60

The Government further stated its response was guided by four pillars:

“better safeguarding”;
“promoting inclusion and accessibility”;
“upholding human rights”; and
“recognising the unique perspectives and experiences of First Nations people with disability.”61

This language directly mirrored the Royal Commission’s emphasis that disability services must move beyond transactional service delivery toward rights-based support systems.

Undertaking to Coordinate the Disability Royal Commission Response with NDIS Reform

One of the most important undertakings was the Government’s decision to integrate the Disability Royal Commission reforms with the broader NDIS Review and NDIS sustainability reforms. This was especially significant because Volume 10 identified systemic problems arising from:

marketisation,
thin markets,

provider conflicts,
workforce instability, and
failures in participant safeguards.

The Government indicated that implementation of Volume 10 reforms would occur alongside broader structural NDIS reform. The consultation summary noted stakeholders strongly urged coordination between the Disability Royal Commission reforms and the NDIS Review reforms⁶², while preserving “choice and control” for participants.

We would strongly affirm this position.

This undertaking became operational through:

foundational supports negotiations;
reforms to support coordination;
increased regulation of providers; and
efforts to redesign the NDIS market and safeguards architecture⁶³.

4. Undertaking to Work Jointly with States and Territories

The Government emphasised on a number of occasions that implementation would occur through a national cooperative framework. The joint government response accepted in principle Recommendation 12.2 concerning implementation oversight by the Disability Reform Ministerial Council (‘DRMC’)⁶⁴. The joint response stated:

The Australian Government and State and Territory governments support the Disability Reform Ministerial Council (DRMC) having

_{⁶² Australian Government, ‘Public Consultation on the Disability Royal Commission: Summary Report’, Department of Social Security, (Report, 5 July 2024) https://engage.dss.gov.au/wp-content/uploads/2024/06/Australian-Government-Public-Consultation-on-the-Disability-Royal-Commission-Summary-Report.pdf.} _{⁶³ S Basford Canales, ‘Albanese strikes $10.5bn deal with states to split cost of non-NDIS disability services in return for GST funding’, The Guardian, (Article, 6 December 2023), https://www.theguardian.com/australia-news/2023/dec/06/albanese-strikes-105bn-deal-with-states-to-split-cost-of-non-ndis-disability-services-in-return-for-gst-funding.} _{⁶⁴ NSW Government, ‘Appendix A: NSW Government response to Disability Royal Commission recommendations’, Department of Communities and Justice, (Document, 31 July 2024), https://dcj.nsw.gov.au/documents/community-inclusion/disability-inclusion/royal-commission-into-violence-abuse-neglect-and-exploitation-of-people-with-disability/nsw-government-response-to-the-disability-royal-commission-recommendations-appendix-a.pdf.}

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The governments also agreed:

DRMC would report annually to National Cabinet;
Disability Royal Commission implementation would become a standing agenda item; and
reform would require “significant and sustained national effort”.66

This was important because many Volume 10 reforms required coordination between:

the NDIS,
mainstream services,
state safeguarding systems, and
disability accommodation/service systems.

Commitment to Participant Safety and Cultural Reform

The Government explicitly framed the Royal Commission findings as morally unacceptable. The joint ministerial statement declared:

The experiences of harm, exclusion and discrimination documented by the Disability Royal Commission are unacceptable and must stop.67

Minister Bill Shorten further stated:

Violence, abuse, neglect and exploitation of people with disability is completely unacceptable.68

65Ibid. 66 Ibid. 67 ALP Response, n 25. 68 Ibid.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

These statements reflected an undertaking not merely to adjust policy settings, but to pursue broader systemic and cultural reform within disability services and the NDIS ecosystem.

Commitment to Consultation and Co-Design

The Government undertook that implementation would occur in partnership with people with disability. The NDIA statement said:

The response outlines the Australian Government’s commitment to working in partnership with the disability community. 69

It also stated:

All governments will continue to work closely with people with disability to make Australia safer, more inclusive and more accessible.70

The Government emphasised that many recommendations remained under consideration because:

further consultation was required;
interaction with existing reforms was complex; and
long-term implementation would occur in stages.71

The Albanese Government’s response indicated active or intended reform in several areas directly tied to Volume 10 findings:

69 NDIS, ‘The Australian Government releases its initial response to the Disability Royal Commission final report’, NDIS, (Webpage, 1 August 2024), <https://www.ndis.gov.au/news/10272-australian-government-releases-its-initial- response-disability-royal-commission-final-report?> (‘NDIS’). 70 Ibid. 71 Ibid; ALP Response, n 60.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Reform Area	Government Undertaking
NDIS safeguards	Increased investment in NDIS Commission capability
Restrictive practices	National reduction targets and oversight reform
Advocacy	New disability advocacy program funding
Complaints systems	Continued funding for complaints and abuse hotlines
Workforce capability	Safeguarding and quality reforms
Human rights	Rights-based reform agenda
Foundational supports	New jointly funded disability support system outside the NDIS
National oversight	DRMC coordination and reporting
Inclusion	Accessibility and anti-discrimination reforms

These undertakings arguably reflected the Government’s acceptance that the problems identified in Volume 10 were systemic rather than isolated incidents.

The Limits of the Government’s Undertaking

Whilst the Albanese Government did not fully accept all recommendations in Volume 10, overall it stated:

130 recommendations were accepted or accepted in principle;
36 remained under consideration; and
6 were merely “noted”.72

Several advocacy organisations criticised the response as insufficiently ambitious. For example, disability advocates described the response as “deeply disappointing” and failing “to respond to the scale of violence, abuse, neglect and exploitation”.73

Some reforms — including more radical structural human-rights reforms — were deferred for further consideration.

72 NDIS, n 70; S Basford Canales, N May, S Convery, ‘Labor’s disability royal commission response “deeply disappointing”, advocates say’, The Guardian, (Article, 31 July 2024), https://www.theguardian.com/australia-news/article/2024/jul/31/labor-focuses-on-job-opportunities-in-response-to-disability-royal-commission-that-revealed-violence-and-neglect?utm_source=chatgpt.com (‘Guardian’). 73 Guardian, n 73.

Significance of the Albanese Government’s Undertaking

The Albanese Government’s undertaking regarding Volume 10 was historically significant because it represented:

formal Commonwealth acknowledgment of systemic failures within disability services and the NDIS;
acceptance that safeguarding systems required major reform;
recognition that “choice and control” alone was insufficient protection; and
a commitment to redesign aspects of the NDIS regulatory and service architecture around rights, safety and accountability.

The Government’s response also demonstrated that Volume 10 became deeply intertwined with:

the 2023 NDIS Review;
the “Foundational Supports” reform agenda;
NDIS sustainability measures; and
broader disability rights reform across Australia.

ME/CFS Legal Resources Position:

It is the submission of ME/CFS Legal Resources that these foundational provisions and Royal Commission recommendations are deeply intertwined and of exceptional significance to assessing the impact of the changes to the legislation encompassed within the Bill.

3. THE BILL

Overall Effect of the Bill

Viewed as a whole, the Bill shifts the NDIS from a framework primarily focused upon individual entitlement and participant choice toward one focused upon:

Scheme sustainability;
Cost control;
stricter eligibility;
tighter support definitions;
stronger compliance mechanisms; and
greater ministerial and administrative control.

The most significant amendments can be summarised as affecting:

Current NDIS Model	Proposed 2026 Model
Broad interpretation of access provisions	Narrower statutory access tests
Participant-focused funding decisions	Sustainability and system-cost considerations
Broad reassessment rights	Restricted reassessment rights
Flexible plan continuation	Fixed-duration plans
Human administrative processes	Increased automation
Limited pricing controls	Expanded Commonwealth pricing powers
Primary-legislation safeguards	Greater reliance on delegated rules

Structural Shift

These reforms principally impact ss 24, 25, 34, 47A–48, planning provisions, compliance provisions, pricing provisions, and rule-making provisions of the NDIS Act.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Collectively represent the largest proposed restructuring of the Act since the 2024 reforms.

The structural shift can be summarised as:

Area	Current NDIS Act	After 2026 Bill
s 24	Broad disability access test	Highly structured functional-capacity model
s 25	Broad early intervention access	Stronger mainstream-system exclusion
s 34	Participant-focused reasonable and necessary test	Sustainability, equity and direct-impairment test
ss 47A–48	Flexible reassessments	Restricted reassessments
Planning	Rolling plans	Fixed-end-date plans
Compliance	Limited enforcement model	Expanded regulatory model
Pricing	NDIA-led pricing	Minister-controlled pricing
Rules	Supplement primary legislation	Increasingly determine substantive rights and funding settings

The combined effect is that the Act moves away from a model centred primarily upon individual entitlement and participant choice, and towards a model centred upon scheme sustainability, standardisation, tighter eligibility controls, stronger executive control, and enhanced compliance regulation.

ME/CFS Legal Resources Position:

ME/CFS Legal Resources intends to make submissions as follows:

4. Constitutional issues
1. Foundational framework considerations
1. Impact of the proposed amendments

56 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 56

4. CONSTITUTIONAL ISSUES

Constitutional Foundation for the NDIS Act

The constitutional foundation for the Act is not located in a single express “NDIS power” in the Australian Constitution (‘the Constitution’). Rather, the Act is constitutionally supported by a combination of Commonwealth legislative powers under Section 51 of the Constitution, together with intergovernmental arrangements between the Commonwealth and the States.

The principal constitutional foundations are generally understood to be:

The external affairs power (Section 51(xxix));
The corporations power (Section 51(xx));
The social welfare / benefits powers (especially Section 51(xxiiiA));
The executive and spending powers (Sections 61 and 81–83);
Referrals of power from the States (Section 51(xxxvii)); and
Incidental power (Section 51(xxxix)) supporting the overall statutory scheme.

External Affairs Power — s 51(xxix)

The strongest and most frequently cited constitutional foundation for the NDIS is the Commonwealth’s power to implement international treaty obligations.

The Act expressly seeks to give effect to Australia’s obligations under the United Nations CRPD. The Explanatory Memorandum and subsequent commentary repeatedly emphasise this objective.

As established above, Section 3 of the Act includes objects such as:

supporting the independence and social participation of persons with disability;
giving effect to Australia’s obligations under the CRPD;
promoting choice and control. The High Court has long recognised that Parliament may legislate to implement bona fide treaty obligations under the external affairs power, particularly since the seminal case of Commonwealth v Tasmania.74 Accordingly, many features of the NDIS are constitutionally liked to the CRPD, including:
non-discrimination,
social participation,
supported decision-making,
independent living,
equality before the law,
reasonable supports, This is especially important because disability services were historically regarded as primarily a State responsibility. (ii) Social Welfare and Benefits Powers — s 51(xxiiiA) Section 51(xxiiiA) allows the Commonwealth to legislate with respect to: … the provision of … sickness and hospital benefits, medical and dental services … benefits to students and family allowances. While there is no explicit “disability support” head of power, the NDIS has similarities to national social welfare schemes such as:
Medicare,
the Pharmaceutical Benefits Scheme,
social security schemes. 74 Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Some aspects of the NDIS - especially funding supports and care services - may be supported analogically under the social services jurisprudence associated with Section 51(xxiiiA), combined with the incidental power. However, Section 51(xxiiiA) alone is probably insufficient to sustain the entire NDIS architecture because:

the NDIS is not framed purely as a welfare payment system;
it regulates providers, markets and service delivery;
it creates a broad national administrative framework.

For that reason, as ME/CFS Legal Resources understand the case to be, the Commonwealth relies on multiple constitutional heads of power simultaneously.

(iii) Corporations Power — s 51(xx)

A substantial part of the NDIS regulates:

registered providers,
service markets,
corporate entities,
employment and compliance systems.

The Commonwealth can regulate constitutional corporations involved in delivering disability supports under the corporations power.

This power helps sustain:

provider registration,
compliance obligations,
funding conditions,
market regulation,
safeguarding mechanisms.

59 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 59

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The corporations power is especially significant after the expansion of Commonwealth regulatory authority recognised in cases such as New South Wales v Commonwealth.75

Executive and Spending Powers — ss 61 and 81 - 83

The NDIS is fundamentally a massive Commonwealth spending program.

The Commonwealth’s executive power (Section 61) and appropriations powers (Sections 81 - 83) support:
- expenditure,
- grants,
- administration,
- intergovernmental agreements.

However, after Williams v Commonwealth (No. 1)76 and Williams v Commonwealth (No. 2),77 Commonwealth spending programs generally require statutory authorisation linked to a constitutional head of power.

The Act therefore provides the legislative framework necessary to validly support Commonwealth expenditure.

State Referrals and Cooperative Federalism — s 51(xxxvii)

The NDIS is also constitutionally underpinned by cooperative federalism.

States entered into: * intergovernmental agreements, * enabling legislation, * referrals of power in some contexts.

For example:

75 New South Wales v Commonwealth [2006] HCA 52; 81 ALJR 34; 231 ALR 1. 76 Williams v The Commonwealth (2012) 248 CLR 156; [2012] HCA 23. 77 Williams v Commonwealth of Australia [2014] HCA 23.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

National Disability Insurance Scheme (NSW Enabling) Act 2013 (Cth) facilitated implementation and transfer of State disability systems into the national scheme.

The NDIS therefore operates partly through:

- Commonwealth legislation,
- State legislative cooperation,
- shared governance arrangements.

This is constitutionally significant because disability services historically sat within residual State powers.

(vi) Incidental Power — s 51(xxxix) The incidental power supports:

- administration,
- review processes,
- enforcement mechanisms,
- information gathering,
- planning systems,
- actuarial governance.

Once a valid substantive head of power exists, Parliament may enact laws “incidental” to implementing that scheme.

This assists in sustaining:

- NDIA governance,
- review tribunals,
- compliance systems,
- safeguards and quality regulation.

Questionable Constitutional Foundation

In the submission of ME/CFS Legal Resources, the proposed changes to the Act shift the scheme from an entitlement-based social support model toward a more restrictive administrative and regulatory model. In our submission, the proposed Bill is fundamentally unsupported by the Constitution.

It is our view that the scheme has moved away from implementing disability rights obligations and is being shaped into a coercive regulatory framework; the weaker reliance on the external affairs power may become. Such views have been expressed in recent Senate inquiries and legal commentary surrounding the issue.

Some submissions within the contemporary debate argue that:

The legislation substantially undermines the CRPD principles it purports to implement;
The legislation confers excessively broad discretionary power without sufficient statutory guidance;
Constitutional validity questions therefore arise.

Submission as to Unconstitutionality

The Act rests on a layered constitutional structure:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Constitutional Source	Role in Supporting the NDIS
External affairs power (s 51(xxix))	Implements the CRPD and disability rights obligations
Social welfare powers (s 51(xxiiiA))	Supports disability-related funding and services
Corporations power (s 51(xx))	Regulates providers and service markets
Executive/spending powers	Supports national funding and administration
State referrals/cooperative federalism	Enables national coordination of former State systems
Incidental power (s 51(xxxix))	Supports administration and enforcement mechanisms

The most important constitutional foundation is generally regarded as the external affairs power linked to the CRPD.

ME/CFS Legal Resources submits that many aspects of the Bill seeks to make amendment to the Act that move the NDIS away from its accepted constitutional foundations — especially the external affairs power, by which the Commonwealth implements the CRPD, and the social welfare benefits power.

Core Issues

The Act is constitutionally supported largely because it gives effect to Australia’s disability-rights obligations - particularly the CRPD.

The Commonwealth has acknowledged that constitutional support for the NDIS comes “for the most part” from the external affairs power in s 51(xxix), as a mechanism to implement the CRPD, with additional reliance on the social welfare power. 81

Sections 3 through 6 of the Act are not decorative. They are the elements of the Act that connect the scheme to:

dignity;
equality;
autonomy;

81 Australian Government, ‘National Disability Insurance Scheme Amendment (Getting The Ndis Back On Track No. 1) Bill 2024 Supplementary Explanatory Memorandum: Amendments to be moved on behalf of the Government’, Australian Parliament, (Memorandum, 2024), https://www.aph.gov.au/DocumentStore.ashx?id=397e512d-082d-47e2-88f6-e300e6dac0bf.

choice and control;
participation;
supported decision-making;
reasonable and necessary supports;
family/carer recognition;
assistance to access the scheme.

These concepts mirror the CRPD and the Disability Royal Commission’s findings. The Royal Commission’s final report made 222 recommendations directed to a society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.

(ii) The Importance of Sections 3 - 6 The Bill is described by the Parliamentary Library as the third tranche of reforms responding to the Disability Royal Commission and the NDIS Review, but it is also “primarily aimed at reducing projected growth in NDIS expenditure and participant numbers”.82

This, in our view, creates a significant tension.

If the Bill genuinely strengthens rights, safeguards, access, quality and sustainability, it may sit comfortably with Sections 3 through 6.

However, we submit that the practical operation of the Bill is to narrow access, reduce supports, automate adverse decisions, limit review rights, and shift people into underdeveloped state systems. We therefore submit that undermines the very rights-based statutory framework that supports the NDIS constitutionally.

(iii) Why is the Bill Unconstitutional? We would submit that there are five arguments for the unconstitutionality of the Bill.

82 Parliamentary Library, ‘Bills Digest No. 65, 2025-2026: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026’, Australian Parliament, (Digest, 25 May 2026), https://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/10865280/upload_binary/10865280.pdf (‘Parliamentary Library).

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

The Commonwealth’s strongest foundation for the NDIS is the external affairs power. That power allows the Commonwealth to legislate to implement treaty obligations, including the CRPD. The Australian Law reform Commission (‘ALRC’) has noted that the Act was enacted with the express objective of giving effect to international conventions;83
A law relying on the external affairs power must be reasonably capable of being characterised as implementing the treaty obligation. If amendments are substantially directed to fiscal reduction rather than rights implementation, a question arises whether those amendments remain sufficiently connected to the CRPD;
The Bill contains measures that may be argued to reduce practical access to CRPD-consistent supports. The Parliamentary Library identifies changes including ministerial power to reduce funding for groups of supports, altered access and planning arrangements, plan suspension, tighter links between supports and eligible impairments, changes to reasonable and necessary supports, and automated administrative decision-making;84
The projected fiscal effect of the Bill is quite significant. The 2026–27 Budget projects a reduction in NDIS expenditure growth of $37.8 billion over four years.85 This reinforces the argument that the dominant purpose and effect is, in reality, budgetary containment rather than rights implementation;
The Government’s own materials indicate a significant narrowing. Their recent fact sheet makes clear that the Bill introduces plan end dates, prevents unspent funds carrying over, tightens permanence, allows suspension and possible revocation after non-contact, strengthens information-gathering powers, imposes record-keeping obligations,

83 Australian Law Reform Commission, ‘Equality, Capacity and Disability in Commonwealth Laws’ (Laws IP 44, 12 November 2013), https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-ip-44/equality-capacity-and-disability-in-commonwealth-laws/legislative-and-regulatory-framework/ 84 Parliamentary Library, n 34. 85 Ibid.

National Disability Insurance Scheme Amendment

The strongest argument in our submission is not simply that the Bill breaches human rights. ME/CFS Legal Resources recognises that Australia does not have a federal bill of rights, hence a breach of the CRPD alone does not automatically invalidate legislation.

Our submission is that given the NDIS depends substantially on the external affairs power because it implements the CRPD, any amendments that materially undermine CRPD-consistent rights (autonomy, support, participation, accessibility, equality and safeguards) fall outside of that constitutional characterisation.

We argue this position because the amendments:

reduce supports for social and community participation;
impose rigid functional capacity tools;
allow automated or formulaic decision-making;
reduce individualised assessment;
weaken access to review;
shift people to non-existent or inadequate “foundational supports”;
treat non-contact as a basis for suspension/revocation despite disability-related communication barriers; and
impose administrative burdens that disproportionately affect participants.

We are not alone in our view. A number of current submissions, for example, raise this same concern:

Australian Government, ‘NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026 - fact sheet’, Department of Health, Aging and Disability, (Fact Sheet, 14 May 2026), https://www.health.gov.au/sites/default/files/2026-05/ndis-amendment-securing-the-ndis-for-future-generations-bill-2026---fact-sheet.pdf (Australian Government).

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Other Constitutional/Legal Issues

In our submission there are a narrower constitutional or legal concerns.

Delegation Concerns - The Bill raises delegation concerns, with too much substance left to rules, instruments or ministerial discretion, where rules effectively determine access, funding or rights.

Chapter III/Review Concerns – The Bill raises concerns with respect to review and Chapter III of the Constitution:

(a) Chapter III of the Australian Constitution establishes the Judicature and creates the federal judicial system. It vests the judicial power of the Commonwealth in:

(i) the High Court of Australia;
(ii) other federal courts created by Parliament; and
(iii) State courts exercising federal jurisdiction.

87 M Sanderson, ‘Submission 12: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026’, Australian Parliament, (Submission, May 2026), https://www.aph.gov.au/DocumentStore.ashx?id=7ae2be63-b3f3-4490-978f-ad942d55719d&subId=789815.

88 J Sandell-Hay, ‘Submission 19: Submission on the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026’, Australian Parliament, (Submission, 16 May 2026), https://www.aph.gov.au/DocumentStore.ashx?id=5bf1ae8b-701d-467c-89e0-2bd8394b3534&subId=789824.

89 P Smoker, ‘Submission 20’, Australian Parliament, (Submission, May 2026), https://www.aph.gov.au/DocumentStore.ashx?id=b64138a3-0866-4b25-be74-e10522c0bac0&subId=789826.

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

(b) Key Provisions – The key provisions of Chapter III are: (i) Section 71 – vests federal judicial power; (ii) Section 72 – judicial tenure and independence; (iii) Section 73 – appellate jurisdiction of the High Court; (iv) Section 75(v) – constitutional writ jurisdiction against Commonwealth officers; (v) Section 77 – creation and conferral of federal jurisdiction.

(c) Position of the High Court – In decisions relating to Chapter III, the High Court has repeatedly described it as protecting: (i) The separation of powers; (ii) Judicial independence; (iii) The rule of law; and (iv) The availability of judicial supervision of executive actions;

(d) Authorities – There are a number of central authorities on Chapter III including:

Plaintiff S157/2002 v Commonwealth90 - established that Chapter III of the Constitution entrenches an irreducible minimum of judicial review for jurisdictional error. Parliament cannot use privative clauses to shield executive decisions from this fundamental constitutional supervision;
Kirk v Industrial Court of New South Wales91 - established that State Parliaments cannot enact legislation that prevents State Supreme Courts from reviewing decisions of inferior courts for jurisdictional error, cementing judicial review as a constitutionally protected mechanism. This extended Chapter III protections;

Plaintiff M68/2015 v Minister for Immigration⁹² - Under Chapter III of the Constitution, the judicial power of the Commonwealth can only be vested in courts. The plaintiff argued that the detention was punitive and unauthorized by any valid law. It was found that there was an exercise of Naura’s own legislative power, and no exercise of the Commonwealth’s power that would violate Chapter III; (e) Concerns - if automated systems or constrained reassessment mechanisms substantially impair meaningful merits or judicial review, hence a violation of Chapter III. Proposed planning models appear to be reducing human involvement and limit appeal outcomes;

Civil Conscription Concerns - There are civil conscription concerns if provider registration, pricing or mandatory panels become so coercive that they effectively compel health or allied health professionals to provide services on Commonwealth terms. Section 51(xxiiiA) contains the “but not so as to authorise any form of civil conscription” limitation. ME/CFS Legal Resources Position: The primary ME/CFS Legal Resources is that the Bill is inconsistent with the objects and principles of the NDIS Act, contrary to the CRPD, procedurally unfair, or legally unreasonable in application. The Bill moves the NDIS from a CRPD-based scheme of autonomy, participation, inclusion and support, and toward a budget-capping administrative rationing scheme, hence the part of the Act impact lose their connection to the constitutional powers that support the NDIS. Sections 3 through 6 are central because they are the bridge between the NDIS, the CRPD, the Disability Royal Commission, and the Commonwealth’s constitutional authority to legislate in this field. 92 Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1.

Failure to Consult

Fundamental Need to Consult

This Bill represents one of the most significant restructurings of the National Disability Insurance Scheme since its inception. For those in the disability community that it impacts, there are implications spanning across the foundational elements of the NDIS: Scheme eligibility, access, funding, planning, review rights, ministerial powers, delegated legislation, participant safeguards and the practical enjoyment of disability rights.

We are sure that the Senate will be very attuned to the fact that the central criticism emerging from the Inquiry submissions, disability representative organisations, legal commentators and international human rights authorities is not merely that consultation was insufficient. Rather, it is that the process adopted by the Commonwealth is fundamentally inconsistent with the internationally recognised disability rights principle:

Nothing About Us Without Us.

This principle is not merely a political slogan. It has become a recognised human rights norm embodied in Article 4(3) of the CRPD’, which requires States Parties to closely consult with and actively involve persons with disabilities in the development of legislation affecting them.

The Bill affects virtually every aspect of the lives of NDIS participants. Yet the evidence demonstrates that people with disability were not provided with a meaningful opportunity to participate in the design of the legislation before it was introduced into Parliament. Even this inquiry raised barriers by allowing just a two

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

week window for an already disabled community to rapidly review the Bill and collate their thoughts into a comprehensible argument.

The Legal Foundation: “Nothing About Us Without Us”

The disability rights movement has long advanced the principle that policies affecting disabled people should not be designed without the participation of disabled people themselves.

The CRPD transformed this principle into a legal obligation.

Article 4(3) provides:

States Parties shall “closely consult with and actively involve” persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies concerning them.

The United Nations Committee on the Rights of Persons with Disabilities subsequently explained that consultation must be:

timely;
accessible;
genuine;
capable of influencing outcomes;
undertaken before decisions are finalised;
undertaken through representative organisations of persons with disabilities.

General Comment No 7 emphasises that consultation is not satisfied by merely informing stakeholders after policy decisions have already been made. Rather, disabled people must be involved at the formative stages of legislative development. The disability movement frequently describes Article 4(3) as the legal embodiment of:

Nothing About Us Without Us.

71 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Consultation is Not a Courtesy — It is a Human Rights Obligation

The Attorney-General’s Department has expressly recognised that Australia has an obligation to:

… closely consult with and actively involve people with disability in the development and implementation of legislation and policies.93

Similarly, the United Nations has repeatedly stated that governments must actively engage disability organisations when designing laws and policies affecting disabled people.

The requirement is particularly important where legislation:

affects access to rights;
changes eligibility criteria;
alters support entitlements;
limits review rights;
expands executive power.

The present Bill does all five of these things.

The NDIS Was Originally Built on Co-Design

The failure of consultation is particularly striking because co-design has historically been presented as a foundational principle of the NDIS itself.

The Joint Standing Committee on the NDIS has observed that the NDIS was:

… built through extensive co-design with people with disability, their families and carers.94

93 Attorney General Department (Cth), ‘Rights of people with disability Public sector guidance sheet’ (Webpage, n.d.) https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/rights-people-disability?utm_source=chatgpt.com. 94 Joint Standing Committee on the National Disability Insurance Scheme, General Issues – Annual Report No 1 of the 47th Parliament: Chapter 4 – Co-design (Parliamentary Paper, Parliament of Australia, 2024) https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_Disability_Insurance_Scheme/General_Issues_-_Annual_Report/Annual_Report_No_1/Chapter_4_-_Co-design.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The NDIA itself has repeatedly described co-design as involving participants, carers, representative organisations and stakeholders working collaboratively with government in shaping reform.

In 2025 the NDIA publicly announced a “Co-Design Reset”, specifically acknowledging community concerns that reforms had been proceeding too quickly and without sufficient collaboration. The Agency stated that future reforms would focus upon transparency, inclusion and meaningful engagement with participants and disability representative organisations.

Against that background, the process adopted for the Bill is clearly inconsistent with the Government’s own publicly stated approach to disability reform.

Labor’s Historical Position on Consultation

A significant criticism is that the consultation process adopted for the Bill appears inconsistent with commitments previously made by the Australian Labor Party.

In Labor’s 2019 Plan to Fix the NDIS policy statement, Labor stated:

The administration of the NDIS and decision making is based around three principles: transparency, consultation and co- design.95

Labor pledged to put people with disability at the centre of the Scheme.:

We will put people with disability at the centre of the NDIS once again, so people get the supports they need to have real choice and control over their lives. Labor will make the scheme more responsive, less complex and more people-focused.96

95 Australian Labor Party, ‘Labor’s Plan to fix the NDIS’, People with Disabilities, (Document, 2019) https://pwd.org.au/wp-content/uploads/2019/08/alpf973-labors-plan-to-fix-the-ndis-policy-brochure-final.pdf 96 Ibid.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

Similarly in June 2024 when announcing additional funding for Disability Representative and Carer Organisations for the express purpose of strengthening the input into the guidance of the Scheme. Then Minister Shorten said:

co-designing with people with disability and the disability community is critical to the success of transformational reform needed to the NDIS.

Most significantly he expressly affirmed the Act’s requirement for co-design, stating::

Organisations led by and who represent people with disability, their families and carers are invaluable in guiding the Scheme in a way that works for all participant and reflects the Government’s commitment to include people with disability in co-design – as enshrined in the NDIS Act.

The NDIS Review similarly embraced the principle that disability reform should occur with disabled people rather than to disabled people.

ME/CFS Legal Resources joins the criticism from the disability sector on the issue of the inadequacy of the consultation as well as very clear departure from standards that the Government itself has championed previously.

ME/CFS Legal would also submit its disappointment with the Labor Government from it failure to deliver on its promise. The NDIS Review and this Government have long emphasised the importance of co-design and when it has come to the point where this Government holds the levers of power necessary to bring the Scheme to its full fruition – the Government has let us down. We expected more. This was not a minor reform hence, quite frankly the greater the impact of the rights and supports of participants, the greater the consultation should have been.

97 B Shorten, ‘NDIS reforms boosted by greater involvement in co-design with disability representative organisations’. Ministers for the Department of Social Services, (Media Release, 6 June 2024), https://ministers.dss.gov.au/media-releases/14946?utm_source=chatgpt.com.

98 Ibid.

99 Commonwealth of Australia, ‘Department of the Prime Minister and Cabinet Working together to deliver the NDIS - Independent Review into the National Disability Insurance Scheme: Final Report’, NDIS Review, (Report, 2024) https://www.ndisreview.gov.au/sites/default/files/resource/download/working-together-ndis-review-final-report.pdf.

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Why the Consultation Process Was Inadequate?

Consultation Occurred After Decisions Were Made

A recurring criticism is that stakeholders were consulted only after the major policy architecture had already been determined. The Senate inquiry was asked to consider legislation that:

had already been introduced;
was linked to announced budget measures;
contained significant delegated powers;
left many substantive details to future Rules. The practical consequence was that stakeholders were invited to comment on legislation whose core design appeared already settled. This is inconsistent with the concept of co-design recognised by Article 4(3) of the CRPD.

Stakeholders Were Asked to Comment Without Key Information

Many elements of the Scheme are to be left to:

future NDIS Rules;
Ministerial determinations;
support lists;
assessment tools;
foundational support frameworks. Stakeholders were therefore unable to assess the real-world effect of the reforms. Meaningful consultation requires people to understand what they are being asked to comment upon. Consultation without the substantive framework is not genuine consultation.

The Timeframes Were Incompatible with Meaningful Participation

The inquiry process involved an extremely compressed timetable. For many disabled people, effective participation requires:

support workers;
carers;
advocacy organisations;
accessible documentation;
additional time to understand complex material;
time for research;
time for community consultation;
time for governance approvals (in the case of organisations)

The process created structural barriers to participation by precisely the people most affected by the reforms.

The Process Was Not Sufficiently Accessible The Bill is lengthy, highly technical and legally complex. Meaningful consultation required:

• Easy Read versions;
• plain language explanations;
• Auslan resources;
• culturally appropriate materials;
• targeted engagement with diverse disability communities.
• public hearings

Article 4(3) requires active involvement, not merely publication of legislative material.

Consultation Focused on Implementation Rather Than Legislative Design A consistent theme in the disability rights literature is that governments frequently promise future consultation regarding implementation while seeking immediate legislative authority.

The concern raised in relation to this Bill is that many of the details will be developed later through Rules and Ministerial instruments. This effectively reverses the consultation process:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Parliament grants the power;

consultation occurs afterwards.

ME/CFS Australia, like many in the disability community, argue that consultation should occur before Parliament grants the power.

Democratic Legitimacy and the NDIS

The NDIS is not merely a welfare scheme. It is the principal mechanism through which Australia gives practical effect to disability rights. Changes to eligibility, supports, planning, review rights and participant safeguards all directly affect equality, participation and independent living.

Because of this, the legitimacy of reform depends not only upon parliamentary approval but also upon meaningful participation by those whose rights are affected. As disability scholar Lucy Series has observed, the CRPD fundamentally changed the legitimacy requirements for disability law-making by requiring governments to actively involve disabled people in legislative development. 100

The Importance of Trust

The storied history of disability policy in Australia is, in many respects, a history of exclusion, paternalism and broken promises. For decades, people with disability experienced segregation, institutionalisation, inadequate services, chronic underfunding and decision-making processes in which they had little or no voice. Disability rights reform emerged from the sustained advocacy of people with disability who challenged the assumption that governments and institutions could make decisions about their lives without their involvement.

The NDIS was intended to mark a fundamental departure from that history.

The Scheme was founded upon principles of choice, control, participation and person-centred decision-making. Importantly, it was also built upon a promise that people with disability would be partners in the design and operation of the Scheme.

100 L Series, ‘Disability and Human Rights’ in N Watson and S Vehmas (eds), Routledge Handbook of Disability Law and Human Rights (Routledge, 2nd ed, 2019) 72, 72–88.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The disability rights principle of “Nothing About Us Without Us” guides the philosophy underpinning NDIS reform for a reason. It is more than words – it is a reflection of Australia’s obligations under the CRPD.

Trust is therefore not a peripheral issue in the NDIS. Trust is the foundation upon which the legitimacy of the Scheme rests. Participants are asked to disclose highly personal information, place their wellbeing in the hands of government systems, and rely upon the Scheme for essential supports that enable daily living, social participation and independence. Such a relationship can only function where there is confidence that government will act transparently, fairly and collaboratively.

Many submissions to this inquiry have rightfully and incitefully expressed concern that the process leading to the Bill has undermined that trust. The criticism is not simply that consultation was insufficient. Rather, it is that a scheme built upon co-design appears to have been fundamentally redesigned without meaningful co-design. Participants, families and representative organisations have repeatedly stated that they were presented with a largely completed legislative package rather than invited to help shape it.

This departure from the principles upon which the NDIS was established has been deliberate. It carries consequences beyond the immediate reforms. Trust, once lost, is difficult to rebuild. Where participants believe that major decisions are being made without their involvement, confidence in the Scheme diminishes. Where confidence diminishes, conflict, appeals, anxiety and disengagement increase. The long-term success and sustainability of the NDIS extend beyond just financial sustainability – it depends on the continuation of the trust and confidence of the people it was created to serve.

For many people with disability, the concern raised by this Bill is therefore not merely a policy disagreement. It is viewed as a betrayal of a promise that disability reform in Australia would be undertaken with people with disability rather than for people with disability. In that sense, the consultation concerns identified throughout this inquiry are ultimately concerns about legitimacy, trust and the future relationship between government and the disability community.

78 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 78

Conclusion

The central failure of the Bill is not merely that consultation was brief (and that is being generous) - it is that the process is clearly inconsistent with:

Article 4(3) of the CRPD;
General Comment No 7;
Australia’s own stated human rights obligations;
the historical co-design foundations of the NDIS;
previous commitments made by the Australian Labor Party;
the Government’s own public statements regarding disability reform.

The disability rights movement’s expectation is straightforward:

Nothing About Us Without Us.

This principle requires more than notification, information sessions or post-hoc engagement. It requires people with disability to be involved before decisions are made, while options remain open, and in a manner capable of genuinely influencing the outcome.

The evidence from the Senate Inquiry, the disability sector, international human rights obligations and Australia’s own policy commitments strongly suggests that the process leading to this Bill fell has fallen well short of that standard.

IMPACT OF THE AMENDMENTS

The Proposed Amendments

The proposed Bill represents one of the most significant restructurings of the Act since its commencement. According to the Bill, Explanatory Memorandum, Government fact sheets, and commentary, the amendments fall into three broad categories:

Access and eligibility reforms;
Planning and funding reforms;
Integrity, fraud, governance and administrative reforms.

Overall Effect of the Bill

Viewed as a whole, the Bill shifts the NDIS from a framework primarily focused upon individual entitlement and participant choice toward one purportedly focused upon:

scheme sustainability;
cost control;
stricter eligibility;
tighter support definitions;
stronger compliance mechanisms;
greater ministerial and administrative control.

The reforms principally impact Sections 24, 25, 34, 47A through to 48, planning provisions, compliance provisions, pricing provisions, and rule-making provisions of the Act,

Changes to Access Criteria

SUBMISSION 1: Section 24 — Disability Requirements

Analysis of Section 24

Purpose

The section operates as the principal gateway into the NDIS. It determines:

who enters the Scheme;
who remains outside the Scheme;
the cohort for whom the Commonwealth assumes long-term support responsibility.

Relationship with the Foundational Provisions

Section 24 must be read together with:

Section 3 (Objects);
Section 4 (General Principles);
Section 5 (People with disability should be supported to participate in and contribute to social and economic life);
Section 6 (People with disability should be supported to exercise choice and control).

Relationship with the CRPD

Section 24 operates within Australia’s implementation of the CRPD, particularly:

Article 19 (Independent Living);
Article 26 (Habilitation and Rehabilitation);
Article 28 (Adequate Standard of Living);
Article 4(3) (Consultation obligations).

Current position

A person satisfies the disability requirements if:

They have one or more impairments attributable to:
- an intellectual condition;

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

a cognitive condition;
a neurological condition;
a sensory condition;
a physical condition; or
a psychiatric condition.

The impairment is likely to be permanent.
The impairment results in substantially reduced functional capacity in one or more of:
- communication;
- social interaction;
- learning;
- mobility;
- self-care;
- self-management.
The impairment affects capacity for social or economic participation.
The person is likely to require support under the NDIS for their lifetime.

Proposed change

Proposed Section 9B introduces:

statutory functional capacity framework;
legislated assessment methodology;
framework for determining “substantially reduced functional capacity.”

Proposed Section 24(5) introduces:

revised permanence test;
links permanence to treatment considerations.

Proposed Section 25A introduces:

an “appropriate treatment” requirement;
impairment not considered permanent unless appropriate treatment has been undertaken.

Proposed Section 25B introduces:

alternative supports exclusion;
access may be refused where another support system is considered available.

Effect

Section 24 is arguably the most important provision in the entire NDIS Act. It determines who is entitled to enter the Scheme. Historically:

permanence has been interpreted broadly;
the focus has been on functional impairment rather than diagnosis;
the AAT/ART and Federal Court have generally examined the practical reality of disability rather than hypothetical treatment possibilities.

The Bill proposes to significantly alter this framework.

The access test moves from “Is the disability permanent and substantially disabling?” towards “Has appropriate treatment been undertaken and does the person satisfy the legislated functional capacity framework?”

The Bill substantially tightens and clarifies:

what constitutes a permanent impairment;
when treatment, rehabilitation or intervention must be explored before permanence is accepted;
what amounts to substantially reduced functional capacity.

The Bill introduces a more structured statutory framework for assessing permanence and functional impairment rather than relying primarily on policy and operational guidelines.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The Agency gains greater ability to refuse access where:

treatment options remain available;
improvement is reasonably possible;
functional impairment is not sufficiently severe.

The Bill moves the Scheme away from the broader interpretation developed by the AAT, ART and Federal Court.

Submissions of ME/CFS Legal on Section 24

Government’s Position

The Government describes the amendments as:

clarifying access;
improving consistency;
protecting sustainability;
ensuring access is reserved for people with permanent and significant disability.

ME/CFS Legal Resources Position

ME/CFS Legal Resources submits that the amendments:

raises the access threshold;
increase uncertainty;
create barriers for autism, psychosocial disability, fluctuating conditions (eg Mental Health) and energy limiting conditions (eg ME/CFS, Long Covid);
shifts power from individual assessment to legislative instruments and assessment tools.

With respect to each section of the Act:

Proposed Section 24(5) – This proposed amendment introduces a more prescriptive permanence test.

ME/CFS Legal Resources submits:

This proposed subsection is intended to make clear that an impairment will not be regarded as permanent where there is a known, available and appropriate evidence-based treatment, clinical intervention, medical intervention or other remedy that is likely to mean the impairment would no longer satisfy the NDIS disability requirements. The provision is designed to tighten and clarify the assessment of permanence and functional impairment for access to the Scheme.
The proposed Section 24(5) gives the NDIA the power to exclude conditions. The NDIA is the body which determines the evidence base that it wishes to consider. In the case of ME/CFS, the NDIS turned to a single so-called ‘expert’ with a view that benefited its desire to limit access to the system. Despite the vigorous representations of the patient community for the formation of an advisory committee to the NDIA, similar to that utilised in Autism – the NDIA ultimately refused the option (after initially indicating that it would enter into discussions).
The proposed approach gives the NDIA the ability to adopt a position that a condition is not sufficiently permanent if the NDIA is of the view that an available intervention may materially improve the person’s functional capacity. This sits alongside the broader 2026 reforms introducing a more formalised functional capacity assessment framework and tighter eligibility rules.
The concern of ME/CFS Legal Resources is that the NDIA will (as it has done in the past with ME/CFS) rely on the existence of theoretical or emerging treatments to argue that an impairment is not

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

to review with the Patient Support and Advocacy organisations in the ME/CFS community to consider counter arguments or evidence to the contrary.

(e) The proposed amendment can and will raise access barriers for people whose conditions fluctuate but remain profoundly disabling. ME/CFS and Long Covid are an example of such conditions. It effectively targets a vulnerable patient community because they are low hanging fruit in the Government’s bid to save money. It is contrary to the original intent of the NDIS Scheme.

Proposed Section 25A – This proposed amendment introduces an “appropriate treatment” requirement.

ME/CFS Legal Resources submits:

(a) This proposed subsection is provides that an impairment will generally only be regarded as permanent where:

(i) all appropriate treatment, clinical intervention, rehabilitation or other remedies that could remedy or alleviate the impairment have been undertaken; (ii) no further treatment is likely to materially improve the impact of the impairment; and (iii) the impairment is likely to be lifelong.

(b) The provision seeks to create a statutory test for permanence rather than leaving the issue primarily to NDIA policy and operational guidelines. The Government’s position is that the NDIS is intended for people with permanent and significant disability, not as a substitute for the health system, treatment services or rehabilitation services.

86 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Section 24 contains the disability access requirements.
Section 24(5) states circumstances in which an impairment is not permanent.
Section 25A sets out the statutory criteria for deciding whether permanence exists.

(d) The practical effect of the proposed s 25A is the creation of a legislative framework through which the NDIA assesses permanence.

(e) The major criticism is that proposed s 25A creates what many commentators call a “treatment exhaustion test.” The effect of the test is to force an applicant into position whereby they are required to demonstrate that they have undertaken extensive treatment before they can establish permanence.

(f) As an advocacy organisation, the concerns of ME/CFS Legal Resources include:

applicants being required to pursue treatments that are costly, inaccessible or unavailable;
pressure on applicants to undergo interventions that are controversial, experimental or carry risk of harms;
the creation of access barriers for disadvantaged rural and regional applicants;
the creation of access barriers for people because of poverty;
difficulties for people with fluctuating or episodic conditions;
difficulties for people who have cultural barriers to their participation in treatments;
uncertainty where evidence is evolving or treatment outcomes are variable;

(g) The concern of ME/CFS Legal Resources is that the NDIA will (as it has done in the past with ME/CFS) rely on the existence of

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

theoretical or emerging treatments to argue that an impairment is not “permanent” despite real-world outcomes that remain uncertain, or even worse, show significant to devastating harms (as occurred with the requirement to use Graded Exercise Therapy). The NDIA has demonstrated a staunch unwillingness to review with the Patient Support and Advocacy organisations in the ME/CFS community to consider counter arguments or evidence to the contrary.

(h)The proposed amendment can and will raise access barriers for people whose conditions fluctuate but remain profoundly disabling. ME/CFS and Long Covid are an example of such conditions. It effectively targets a vulnerable patient community because they are low hanging fruit in the Government’s bid to save money. It is contrary to the original intent of the NDIS Scheme.

Proposed Section 25B – This proposed amendment introduces an “alternative supports” exclusion.

ME/CFS Legal Resources submits:

(a)Section 25B is one of the most significant changes in the Bill. It is the companion provision to proposed Sections 24(5) and 25A. While s 25A deals with whether an impairment is permanent, proposed s 25B introduces the alternative supports requirement..

(b)It is a fundamental changed to the philosophy of the Scheme because it permits classes of people or impairments to be excluded from the Scheme and redirected to alternative systems;

(c)The section now asks whether the person falls within a prescribed class of persons, circumstances, impairments or supports that may be met outside the NDIS and operates as an exclusionary gateway.

— PAGE TEXT START — Submission 2551

Proposed Section 25B – This proposed amendment introduces an “alternative supports” exclusion.

ME/CFS Legal Resources submits:

(b)It is a fundamental changed to the philosophy of the Scheme because it permits classes of people or impairments to be excluded from the Scheme and redirected to alternative systems;

(c)The section now asks whether the person falls within a prescribed class of persons, circumstances, impairments or supports that may be met outside the NDIS and operates as an exclusionary gateway.

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(d) Section 25B is it allows impairments, classes of impairments, or groups of people to be excluded from NDIS access where the Minister is satisfied that supports should instead be provided through another system or mechanism. The provision is tied to broader powers allowing participant status to be revoked and eligibility denied through delegated legislation.

(e) A person may therefore have a profoundly reduced functional capacity and still be excluded from the system.

(f) There are a variety of examples that can apply here:

(i) Motor Vehicle Accident Scheme – An individual can receive injuries in a motor vehicle accident. Those injuries can result in substantially reduced functional capacity. If that person has access to a statutory motor accident compensation scheme that provides supports of a prescribed kind, the Rules could direct that those supports constitute “alternative supports” and therefore exclude him from NDIS access. In reality this decision could be made in the abstract – where the theoretical supports do not actually exist. Why?

Disputed Liability – Under a fault-based scheme, liability might be denied, contributory negligence might be alleged, causation might be disputed and treatment might be considered unrelated. Litigation can take years before entitlement occurs and the outcome may fall well short – especially if settled. This results in person falling between the gaps of both schemes – without supports. The NDIS does not look at fault;
Compensation Lens – The questions asked under compensation are different to the NDIS. They generally focus on what is ‘reasonably necessary’ or ‘reasonable and necessary’ treatment arising from the

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

injury whereas the NDIS focuses on supports that are required to facilitate independence, social participation, economic participation and community inclusion. These are very different questions:

Social participation is a core NDIS provision to promote inclusion – but is not a medically related treatment under an statutory motor vehicle scheme;
Capacity building is often limited under the accident scheme, whilst funded under the NDIS;
Employment participation can be funded under the NDIS if disability related, but is often narrowly assessed under a statutory motor vehicle scheme;
Community access is a common support category under the NDIS, but often restricted under a motor vehicle accident scheme;
Support workers access for recreational participation is often funded under the NDIS but disputed under motor vehicle accident schemes; • Choice and Control – This is a fundamental principle under the NDIS whereas under a motor accident scheme there is no equivalency because choice and control does not exist when they can:
- Dictate providers;
- Require insurer approval prior to commencement;
- Impose utilisation reviews;
- Restrict hours;
- Require reassessment at their whim; • Lifetime Support Versus Treatment Support – Most compensation schemes are not modelled in the same vein as the NDIS, hence are not designed to provide the broad social model of disability support the NDIS provides. Broader participation outcomes are the

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The core of the NDIS, whereas insurer often view this as outside to scope of compensable treatment and care. This might include things such as:

Participating in a sport;
Community activities;
Building and maintaining relationships;
Participating in and maintaining employment;
Attending and completing university;

• Jurisdictional Gaps – The NDIS takes into account a person who has multiple disabilities or health conditions – aside from the one that occurred in an accident, for example. If the injured person had Multiple Sclerosis prior to the accident, the NDIS will address their support needs wholistically and fund the combined effect of the impairments on the person’s functional capacity and participation in daily life. The motor vehicle accident scheme will only fund the supports related to the compensable injury and its consequences – not the pre-existing issues. This is the jurisdictional gap where cost-shifting between systems will leave the persons disability related needs unmet;

The focus of Section 25B therefore focuses on there mere existence of an alternative support system - not on the reality of whether an alternative system actually provides supports that are:

• Equivalent in their scope of coverage; • Actually available in practice; • Able to be accessed without litigation; • Able to be accessed in a timely manner; • Directed by the participant; • Actually sufficient to meet the individual’s disability related needs;

91 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Provided across the individual’s lifetime;

The mere existence of an alternative does not establish that a person has access to supports equivalent to those available under the NDIS. Compensation schemes typically operate according to principles of liability, causation and reasonable treatment, whereas the NDIS is founded upon participant choice and control, independence, social participation and community inclusion. Proposed s 25B risks excluding participants based on the theoretical availability of alternative supports, rather than the practical reality of whether those supports are available, adequate and equivalent.

(ii) Mental Health Conditions – People with mental health conditions are particularly vulnerable under the proposed Section 25B. These conditions sit at the intersection between the NDIS and State mental health systems, hospital systems and community support programs. In an example such as Schizophrenia, the following can occur:

Disability Test Satisfied But Excluded – A person with chronic schizophrenia, including significant symptoms who has no ability to manage the finances, live independently, has repeated admissions and substantial impairment in social interaction, learning, self-management and employment would clearly satisfy the permanence requirement of Section 25A and the substantially reduced functional capacity requirements under Section 24 – yet the government could determine that certain psychosocial disabilities should receive support through other systems such as mental health or alternative supports – hence they are excluded from the NDIS;

Services Not Equivalent – Section 25B leaves the decision with the Government and it may assume, as it often has, that alternative systems provide equivalent support. In the case of schizophrenia, for example, the reality is often very different. Mental health services generally focus upon diagnosis, treatment, medication, crisis intervention, hospitalisation and clinical care whereas the NDIS focuses upon daily living support, community participation, social connection, support workers, supported decision-making, independent living, and employment participation. A psychiatrist can prescribe medication. A psychiatrist cannot usually provide 20 hours per week of support worker assistance, assistance attending appointments, support with shopping, support maintaining tenancy and assistance engaging with the community. It is often these supports that prevent deterioration and hospitalisation. Under Section 25B – the Government can take those options away and material harm will result;
Transferral of the Issue – Exclusion of mental health issues to other services will simply increase the incidences of hospitalisations and crisis presentations. A person with schizophrenia needs assistance and supports and without them, there can be a deterioration in compliance with medications, increased social isolation, instability in housing, deterioration in self-care, all resulting in an increased risk of relapse. This more than likely results in an increase in use of ambulance services, presentation to the Emergency Department, involuntary admissions, homelessness, self-harm, harm of others, police attendances and forensic mental health intervention. The support needs do not disappear –

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

they are merely transferred to another system – all with the possibility of material harm to the individual;
Missing Middle Problem – When a person with a mental health issue, such as schizophrenia, cannot obtain adequate support. This can happened when there is failures within the public mental health services (which are frequent in practice), inadequacies or absences in community mental health programs (eg rural and remote areas), deficiencies in housing systems (eg there are waiting periods on public housing ranging from months to years), and gaps or unavailabilities in the primary health care setting (eg rural and remote areas). It is also compounded when the person is too disabled for ordinary community services, inadequately supported by health services, or as is being suggest here – excluded from the NDIS. Section 25B escalates the risk of an individual falling into the problem;
Loss of Support During Stability – In the current iteration of the NDIS, funded supports are essential to keeping people with mental health issues, stable. This is particularly so in schizophrenia. The NDIS achieves this through funding of items such as support workers, psychosocial recovery coach, assistance with the activities of daily living or participation in the community. Such supports give the perception of stability – a false reality that can lead to misconceptions that they are suitable for mainstream supports. This is an equivalent to pulling the rug out from underneath them – ie removing the supports that prevent the deterioration;
Human Rights Concerns – Section 25B will disproportionately affect people with psychosocial disabilities. It is a historical reality that mental illness is treated in a distinctly different manner to physical

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

The potential impact of proposed s 25B on people with mental health disabilities, including the example of schizophrenia - is very significant. A person may satisfy the traditional NDIS access requirements of permanency and substantially reduced functional capacity, yet still be excluded on the basis that support is theoretically available through the mental health system. However, clinical mental health services are not equivalent to the individualised disability supports provided under the NDIS. Mental health systems generally provide treatment, crisis intervention and hospital care, whereas the NDIS funds practical supports that enable independent living, social participation and community inclusion. The result may be that people with schizophrenia are redirected to systems that were never designed to meet their disability-related support needs, increasing the risk of relapse, hospitalisation, homelessness and social exclusion.

(g) Section 25B provides a broad discretion to Government to use subordinate legislation to prescribe classes of people, impairments, circumstances or support systems that may be excluded from NDIS access, despite those individuals otherwise satisfying the traditional disability access criteria.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(h) The existence of an alternative support system does not guarantee the availability of equivalent, accessible or adequate support. Participants with psychosocial disability, autism, intellectual disability, chronic illness, rare diseases, and complex or overlapping disabilities may be particularly vulnerable to falling between systems.

(i) Health services, mental health systems, education systems, housing services, workers compensation schemes and motor accident schemes typically operate for different purposes and often provide only partial support.

(j) Section 25B risks creating jurisdictional gaps, cost-shifting between governments and service systems, increased administrative disputes over responsibility, and unmet support needs for people with disability.

(k) Excluding participants from the NDIS without ensuring equivalent alternative supports are available may increase pressure on hospitals, mental health services, carers, housing systems and other already overstretched public services, while reducing independence, participation and community inclusion for people with disability.

(l) Most importantly, Section 25B risks the propagation of harms:

(i) Harms for people with conditions where the failure to meet their needs leads to crises, violence, abuse, neglect, exploitation or even death; (ii) Harms for people who are impacted when unmet mental health needs impact those around them – including carers, friends, emergency services and others; (iii) Harms for the people who cannot get access to the medical help they need with State system hospital systems are too overwhelmed to meet their needs;

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Proposed Section 9B – This proposed amendment focuses on “functional capacity”.

ME/CFS Legal Resources submits:

(a) Proposed s 9B is one of the foundational provisions in the Bill. Its purpose is to introduce a statutory definition and framework for “functional capacity”, which the Government proposes to make central to the new access model for the NDIS.

(b) The concept of functional capacity would be introduced into the NDIS Act and become a key eligibility criterion. Rather than focusing primarily on diagnosis, the focus in centred on the practical impact of an impairment on a person’s ability to function in daily life.

(c) Schedule 1 therefore establishes the legal framework for determining access to the NDIS based on substantially reduced functional capacity. It is a mechanism that allows the Government to classify impairments into categories and then attached different legal consequences to those categories elsewhere in the Act.

(d) The assessment will focus on the individual’s abilities separately from supports, assistive technology, modifications, and their environmental and personal circumstances. This is a change – because currently disability is assessed in the context of the individual’s actual life circumstances.

(e) Under this proposed framework, Section 9B provides the legislative definition of functional capacity that will underpin:

access assessments;
eligibility determinations;
functional capacity tools;

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

future rules and assessment instruments;
consistency of decision-making across applicants.

(f) Decision makers are directed towards an assessment of the individual’s theoretical capacity, separated from the actual environmental in which they live.

(g) In practice that means, for example:

(i) Mental Health Conditions – A person with a mental health condition would be assessed in a psychiatrists office, where they appear calm, answer questions appropriately and demonstrate basic self-care skills. In their real world environment, they actually struggle to maintain their housing, have problems when out in public, can’t independently use public transport, cannot shop properly, need assistance to take medication properly or socially withdraw for extended periods of time;

(ii) Autism – A person diagnosed with Autism has a condition that is arguably highly context-dependent. In a quiet room with predictable routines and familiar people they might well function well. But in noisy environment or unfamiliar setting where there is sensory overload or stress – they cannot function effectively. An assessment outside of these environments fails to consider the reality of the disability.

(h) Historically, NDIS access has involved assessment of:

permanence;
impairment;
substantially reduced functional capacity;
need for lifetime supports.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 2551

(i) Much of the detail about how functional impact is assessed under the proposed Section 9B has been contained in policy, operational guidelines and NDIA practice. (j) The proposed Section 9B elevates the concept of functional capacity into the Act itself and creates the legal basis for a more standardised national assessment framework. (k) In our submission this moves the Act away from an individual assessment of disability towards a system where functional assessment instruments become the primary determinant of eligibility. (l) Functional capacity assessments are, in our submission, inherently flawed. Such instruments are snapshot assessments – they capture what a person can do once and not what they can do upon repetition. That is not a true insight into a disability – especially disabilities where there is variability, or a decline that arises from repetition. (m) Additionally, the exclusion of environmental influences that are often central to how a disability manifests, will cause flawed outcomes. (n) ME/CFS Legal Resources submits that disability should be assessed on the basis of whether tasks can be performed safely, reliably, repeatedly and sustainably. Environment is often key as well. An over-reliance on assessment tools will yield flawed and inherently unfair outcomes when:

assessment instruments become determinative;
clinical judgement is sidelined; and
evidence from the treating medical practitioner carries less weight.

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment

(k) ME/CFS Legal Resources is concerned that proposed s 9B will operate in conjunction with the Bill’s extensive use of delegated legislative powers. This enables the Government to create a broad statutory framework, while the substantive rules are left to be created through legislative instruments at a later date. Such instruments determine who qualifies for support and on what basis. In practice, critical matters such as the definition and measurement of functional capacity, the methodologies used to assess disability, the thresholds that applicants must satisfy, and any scoring or classification systems are not contained in the primary legislation itself but are instead prescribed by the Executive through subordinate legislation.

(l) This approach reduces parliamentary scrutiny of the criteria that ultimately govern access to the NDIS. The practical operation of the scheme then depends on the rules, which can be amended more easily than legislative provisions. People with disabilities are then, without being too blunt, subjected to the whims of the government of the day. Policy decisions would no longer be a decision of parliament – becoming the domain of the Government of the day instead. In an environment where the NDIS is being wrongly portrayed as an economic burden on the budget, the Scheme can forever be used as a way to fix budget holes at the expense of people with disabilities.

(m) People with disabilities require stability and certainty – not an environment in which the supports they become dependent upon for their quality of life and security, can be ripped away from them without significant oversight.

(n) Whilst the government argues that their measures give greater consistency, objective assessments and a reduction in variation - this will come at the expense of individualisation. Individual disability experience will be lost within standardised frameworks.

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Submission 2551

Vulnerable people (patients and carers) will fall through the cracks and lives will be put in harms way. People will die.

(o) In the submission of ME/CFS Legal Resources the proposed amendment arising from Section 9B are the most significant when compared to permanence provisions in Sections 24(5), 25A and 25B. because it impacts how the disability itself is measured. It feeds directly into their operation.

(p) The ultimate impact of the reforms, therefore depend less on the wording of the permanence provisions more on the assessment tools and functional capacity rules that are implemented in practice.

(q) The practical consequence of Section 9B is that participants will presented with a barrier to access because they have uncertainty as to whether they quality, what evidence burden they will have to prove their entitlement and how future assessments will operate.

(r) From a legal standpoint, the increased uncertainty will increase the number of disputes that vulnerable people with a disability (and their carers) will have to endure, increase the number of review applications, increase the inconsistency in NDIA and Tribunal decision making and reduce the predictability of the Scheme.

Integration of Sections 9A, 24(5), 25A and 25B - The proposed structure of Section 24(5), 25A and 25B together effectively create three linked gateways where as the addition of Section 9A operationalises the new legislative architecture for eligibility to the NDIS. Section 9B defines what functional capacity means, Section 25B applies that concept to determine eligibility and then Sections 24(5) and 25A determine whether the impairment is permanent.

ME/CFS Legal Resources Submits:

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(a) These four amendments cannot be read in isolation. Acting in concert they create a sequential pathway where each stage narrows access to the Scheme. Cumulatively they shift the NDIS from a primarily diagnosis-and-impairment model toward a functional capacity threshold model, which may will significantly adverse consequences for people with fluctuating conditions such as ME/CFS and Long Covid.

(b) The reforms move the NDIS away from a system where diagnosis and impairment are primary entry points and toward a system where eligibility increasingly depends on:

functional consequences;
interaction with other service systems;
assessment methodologies;
eligibility thresholds;
standardised assessment tools

(c) As a result of this cumulative approach, an application can fail at any stage – thereby effecting narrower eligibility.

(d) ME/CFS Legal Resources argues that the cumulative approach shifts the NDIS away from an individualised, rights-based and support-needs model towards a system focused on treatment history, functional measurement and eligibility thresholds.

(e) We submit that this framework will disadvantage people with fluctuating, episodic, invisible or energy-limiting disabilities, including autism, psychosocial disability, ME/CFS, Long Covid and rare diseases, because standardised assessments may not adequately capture variable functioning, masking, post-exertional symptom exacerbation, or the ability to perform activities safely, reliably, repeatedly and sustainably.

102

ME/CFS Legal Resources Inquiry Submission:

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(f) Elements of the framework, including assessment methodologies, systems and eligibility criteria, will ultimately be determined through delegated legislation rather than primary legislation thereby reducing parliamentary scrutiny, transparency and accountability.

(g) Access thresholds will be raised, uncertainty will increase, eligibility is narrowed, and it will make it more difficult for some of the most vulnerable disability groups to access or retain NDIS supports. Such an approach is unfair and incongruent with the CRPD.

Effect on ME/CFS and Long Covid Applicants

ME/CFS Legal submits that the amendments will have the following impact for people with ME/CFS and Long Covid:

Proposed Section 24(5)

This proposed amendment impact applicants with ME/CFS and Long Covid as follows:

The proposed Section 24(5) will act as a barrier for ME/CFS and Long Covid applicant because both conditions can be severe, disabling, fluctuating and long-term, and have no curative treatment. Current guidance recognises Long Covid may persist, relapse and fluctuate, and that post-exertional malaise can worsen after minor exertion.
The main barrier to date has been that the NDIA’s decision-makers (who have zero medical understanding of the nuances of the conditions) treat symptom management - pacing, rehabilitation, psychological support, medication trials, autonomic treatment, pain treatment, sleep treatment, etc - as a treatment that must be attempted before permanence is accepted. In the proposed amendment, “appropriate treatment” must be exhausted before permanence is accepted and the problem will be exacerbated.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Requiring all appropriate treatment to be undertaken is unjust and unsafe, with applicants should not be excluded because of factors such as treatment unavailability, unaffordability, delay, risk, cultural safety, trauma or clinical unsuitability. In the case of ME/CFS and Long Covid in particular, the granting of wide discretion to the NDIA will force people into risky or contested interventions simply to satisfy an eligibility gate;
For ME/CFS and Long Covid, that is problematic because:

(a) There is an abstract assumption by the NDIA that

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(iv) The fact that symptoms vary over time does not alter the underlying permanence of the condition;

(i) pacing does not cure the condition, eliminate disability or restore normal functioning – indeed for many it just does not work;

(ii) At best, pacing may reduce the frequency or severity of crashes for some people; it does not remove the underlying impairment;

(d) Many medications used in ME/CFS and Long Covid are prescribed off-label (hence not covered by the PBS) and are directed towards symptom management rather than treatment of the underlying disease process:

(i) Many patients experience little or no meaningful improvement from medication trials despite repeated attempts;

(ii) Some medications are associated with significant adverse effects, creating additional risks and burdens for applicants;

(iii) Applicants should not be required to undertake endless medication trials merely to demonstrate that permanence exists;

(e) Many interventions remain experimental, emerging, poorly researched or supported by limited evidence;

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(iv) The fact that symptoms vary over time does not alter the underlying permanence of the condition;

(i) pacing does not cure the condition, eliminate disability or restore normal functioning – indeed for many it just does not work;

(ii) At best, pacing may reduce the frequency or severity of crashes for some people; it does not remove the underlying impairment;

(i) Many patients experience little or no meaningful improvement from medication trials despite repeated attempts;

(ii) Some medications are associated with significant adverse effects, creating additional risks and burdens for applicants;

(iii) Applicants should not be required to undertake endless medication trials merely to demonstrate that permanence exists;

(e) Many interventions remain experimental, emerging, poorly researched or supported by limited evidence;

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Submission 2551

(f) Medical understanding of both conditions continues to evolve, creating uncertainty regarding what should properly be regarded as “appropriate treatment”;

(g) Clinical disagreement regarding treatment should not operate to the disadvantage of people with disability;

(h) The history of ME/CFS demonstrates the dangers of linking disability recognition to prevailing treatment paradigms:

(i) Some interventions previously promoted as effective have been heavily criticised by patients, clinicians and researchers because of concerns regarding safety, effectiveness and patient-reported harms;

(ii) Graded exercise therapy (‘GET’) is particularly problematic where post-exertional malaise (‘PEM’) is present and is a treatment that the UK’s National Institute for Health of Care Excellence ME/CFS Guidelines state should not be undertaken for ME/CFS;101

(iii) PEM is recognised as the cardinal symptom of ME/CFS and is characterised by delayed symptom exacerbation and deterioration following exertion;

(iv) Interventions that increase activity without adequately accounting for PEM may trigger relapse, crashes, prolonged deterioration and significant harm;

(v) Applicants should not be placed in a position where they must undertake interventions that may worsen their condition in order to satisfy a permanence requirement;

101 National Institute for Health and Care Excellence, Myalgic Encephalomyelitis (or Encephalopathy)/Chronic Fatigue Syndrome: Diagnosis and Management (NICE Guideline No NG206, 29 October 2021), https://www.nice.org.uk/guidance/ng206.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(vi) The existence of a theoretical treatment option does not mean that treatment is safe, suitable or clinically appropriate for the individual applicant;

(vii) Many treatments are inaccessible because of cost, geography, workforce shortages, waiting lists or the absence of appropriately qualified practitioners;

(viii) People with severe and very severe ME/CFS may be physically incapable of participating in many treatment programs, assessments or interventions;

(ix) Housebound and bedbound applicants often have little practical ability to access specialist services, repeated reviews or ongoing treatment requirements;

(i) The requirement to continually demonstrate treatment failure risks creating an endless cycle of referrals, reassessments and evidentiary requests;

(j) Applicants may be required to repeatedly prove that treatments are ineffective, unavailable, inaccessible or inappropriate despite years or decades of illness;

(k) The practical effect is that permanence may become dependent upon treatment exhaustion rather than the actual nature, duration and severity of the disability;

(l) As a result, people with severe and enduring disability may be excluded from the NDIS not because their disability is insufficiently serious, but because decision-makers continue to identify further treatment possibilities that can be pursued in theory, regardless of their likely benefit, accessibility, affordability or risk;

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Practical Effect of Proposed s 24(5)

The practical effect of proposed s 24(5) is that applicants with ME/CFS and Long Covid may be required to generate increasingly detailed, costly and complex evidence to establish permanence, functional impact and support needs. For many applicants, particularly those who are severely ill, housebound, bedbound, geographically isolated or experiencing financial hardship, the process of obtaining that evidence may itself become a significant barrier to accessing the Scheme. An applicant with ME/CFS or Long Covid will therefore need stronger evidence showing:

(a) Longitudinal Clinical Evidence such as:

(i) The diagnosis of the condition and the duration of the illness;
(ii) The nature of onset, including viral onset, infectious onset, post-Covid onset, gradual onset or other recognised pathways to illness;
(iii) The clinical course of the condition, including progression, relapse, remission and deterioration over time;
(iv) A longitudinal account of functional capacity over months and years rather than observations from a single consultation or assessment;

(b) Symptom Profile Including:

(i) The presence, frequency, severity and consequences of post-exertional malaise (PEM), including delayed symptom exacerbation following physical, cognitive, emotional or sensory exertion;
(ii) The frequency, severity and duration of crashes, relapses and periods of deterioration;

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Submission 2551

(iii) the difference between functioning on a good day, an average day and a bad day; (iv) whether activities can be performed safely, repeatedly, reliably and sustainably without triggering deterioration; (v) the impact of cognitive dysfunction, including impairments in memory, concentration, executive functioning, information processing and decision-making; (vi) the impact of autonomic dysfunction, orthostatic intolerance, Postural Orthostatic Tachycardia Syndrome (‘POTS’), sensory intolerance, sleep dysfunction, pain and other disabling symptoms; (c) the impact of the condition upon activities of daily living, self-care, domestic activities, education, employment, mobility, communication and community participation; (d) objective or supportive evidence where available, including neurocognitive assessments, autonomic testing, tilt-table testing with echocardiographic assessment, SPECT imaging and other investigations relevant to the applicant’s presentation; (e) two-day cardiopulmonary exercise testing (‘2-Day CPET’), where clinically appropriate and safely undertaken, demonstrating post-exertional malaise, abnormal recovery and inability to reproduce functional capacity across consecutive days; (f) A treatment profile noting: (i) the treatments, interventions, management strategies and rehabilitation approaches previously attempted;

109 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(ii) the outcomes of those interventions and whether they produced meaningful, sustained and reproducible functional improvement; (iii) failed treatments, ineffective treatments, inappropriate treatments and treatments that were ceased because of adverse effects, deterioration or lack of benefit; (iv) why further treatment is unlikely to materially improve, reverse or alleviate the impairment; (v) why available interventions are directed towards symptom management, adaptation, pacing, energy conservation, environmental modification and support rather than cure or restoration of normal function; (vi) why management of symptoms should not be confused with treatment of the underlying impairment; (g) why partial improvement does not equate to recovery and does not negate permanence; (h) why fluctuation, temporary improvement or periods of stability do not establish that the condition is likely to resolve; (i) why pacing may reduce crashes or symptom severity for some individuals but does not remove the underlying disability; (j) why the existence of a theoretical treatment pathway does not establish that meaningful recovery is likely; (k) why further treatment is unavailable, inaccessible, unaffordable, clinically inappropriate, associated with unreasonable risk or unlikely to produce material improvement;

110 ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

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(l) the practical barriers to accessing treatment, including workforce shortages, specialist scarcity, waiting lists, geography, poverty and inability to travel; (m) the impact of the condition upon the person’s ability to obtain evidence, attend appointments, participate in assessments and comply with treatment expectations; (n) evidence from specialists, treating practitioners, allied-health professionals, carers, family members and support persons regarding disability and functioning over time; and (o) why the person’s impairment remains permanent and substantially disabling notwithstanding years of treatment attempts, symptom-management strategies, periods of fluctuation or temporary improvement. 6. From a financial and practical perspective, proposed s 24(5) creates significant barriers to access because: (a) The proposed framework assumes that the medical and allied-health systems possess the workforce capacity, expertise in ME/CFS and Long Covid and resources necessary to generate the evidence required to establish permanence, treatment history and functional impairment; (b) It assumes that practitioners with a working and contemporary knowledge of ME/CFS and Long Covid exist in sufficient numbers throughout Australia and can be readily accessed by applicants – that is not the case and practitioners are scarce: (i) In reality, there are very few practitioners within the Australian healthcare system who possess a meaningful understanding of ME/CFS and Long Covid, are confident managing the conditions, and are willing to provide detailed

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

opinions regarding diagnosis, prognosis, permanence and functional impact – and those that exist are expensive to access and located in capital cities or major metropolitan cities;
Many practitioners remain unfamiliar with PEM, autonomic dysfunction, POTS, fluctuating disability and the broader functional consequences of these conditions;
Some practitioners continue to underestimate the severity of the conditions, misunderstand their nature, or rely upon outdated assumptions regarding treatment and recovery; (c) There are very few general practitioners willing or able to provide the extended consultations required to obtain comprehensive histories and prepare detailed reports of the kind increasingly required by the NDIA and those that do are doing so at minimal cost with long delays, or at a significant cost; (d) Many practitioners simply do not have the time or resources to prepare complex reports and therefore charge significant fees for doing so; (e) Even where practitioners are willing to assist, almost all are unable to produce reports within unrealistic NDIA timeframes because of assessment delays, information delays, existing workforce pressures and clinical commitments; (f) The number of specialist practitioners with meaningful expertise in ME/CFS and Long Covid is even smaller; (i) Many specialists have closed books, lengthy waiting lists or limited capacity to accept new patients;

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opinions regarding diagnosis, prognosis, permanence and functional impact – and those that exist are expensive to access and located in capital cities or major metropolitan cities;
Many practitioners remain unfamiliar with PEM, autonomic dysfunction, POTS, fluctuating disability and the broader functional consequences of these conditions;
Some practitioners continue to underestimate the severity of the conditions, misunderstand their nature, or rely upon outdated assumptions regarding treatment and recovery; (c) There are very few general practitioners willing or able to provide the extended consultations required to obtain comprehensive histories and prepare detailed reports of the kind increasingly required by the NDIA and those that do are doing so at minimal cost with long delays, or at a significant cost; (d) Many practitioners simply do not have the time or resources to prepare complex reports and therefore charge significant fees for doing so; (e) Even where practitioners are willing to assist, almost all are unable to produce reports within unrealistic NDIA timeframes because of assessment delays, information delays, existing workforce pressures and clinical commitments; (f) The number of specialist practitioners with meaningful expertise in ME/CFS and Long Covid is even smaller; (i) Many specialists have closed books, lengthy waiting lists or limited capacity to accept new patients;

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(ii) Most specialist services operate within the private healthcare system and involve substantial out-of-pocket expenses;

(g) Applicants may be required to obtain multiple specialist opinions, updated reports and additional assessments in order to demonstrate that treatment options have been exhausted or are unlikely to materially improve the impairment;

(h) Many people with ME/CFS and Long Covid are already financially devastated because their illness has substantially reduced or eliminated their capacity to work, study or generate income, hence their capacity to fund is limited to non-existent:

(i) As a consequence, many applicants have little capacity to fund repeated consultations, specialist reviews, investigations, treatment trials and evidentiary reports;

(ii) Some people will meet the cost of practitioners and reports by borrowing from family or incurring high interest debt – or even sacrifice food, electricity, medications or other essentials to meet the costs;

(iii) The practical effect is that poverty may become a barrier to NDIS access, not because disability is absent, but because applicants cannot afford to generate the evidence required to prove it;

(i) The public healthcare system does not fund or provide the extensive evidentiary material required to satisfy NDIS access requirements;

(j) The Medicare system does not fund or provide any significant rebates for long appointments and only a small percentage of the real cost for most knowledgeable practitioners;

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Many investigations that may be relied upon to support an application, including neurocognitive assessments, autonomic testing, tilt-table testing (with echocardiogram), SPECT imaging and other specialist investigations, are expensive, difficult to access and often unavailable through public healthcare pathways – the cost of which is accorded limited funding under Medicare and very limited funding if health care or pension cards are not available;
Applicants can be forced into the private healthcare system in order to obtain evidence that the NDIA regards as persuasive – a cost that is born by them without significant Medicare assistance:

(a) The cost of medications, specialist consultations, allied-health interventions, investigations and ongoing management strategies may amount to many thousands to tens of thousands of dollars over the life of the condition;

(b) Many commonly used interventions are not directed toward cure but toward symptom management, meaning applicants may incur substantial ongoing costs without any realistic prospect of resolving the underlying impairment;

(c) Geographical location creates additional financial barriers:

(i) Applicants in regional, rural and remote areas frequently have little or no access to practitioners with expertise in ME/CFS and Long Covid;

(ii) Accessing appropriate practitioners may require extensive travel, accommodation costs, support-person expenses and time away from family and carers;

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(d) For many applicants, particularly those with severe illness, travel is not merely expensive but physically unsafe, medically inadvisable or impossible; (e) Housebound and bedbound applicants face even greater barriers because very few practitioners provide home visits or outreach services capable of generating the evidence required by the NDIA; (f) The process of obtaining evidence frequently requires multiple appointments, assessments and investigations, each involving additional financial cost; (g) If a patient is prepared to travel but cannot do so by public or private transport due to disability/sensitivities, the patient transport option is not often available because the state provider refuses due to claims that the NDIS is responsible, or the conditions are not eligible or the fee must be met by the person requiring it – a barrier due to the extreme cost; (h) Many applicants will therefore need required to spend significant sums proving that they remain disabled despite years or decades of illness, treatment attempts and medical review; (i) The cumulative effect is that access to the NDIS may become increasingly dependent upon the depth of a person’s financial resources, their geographical location and their ability to navigate public and private healthcare systems rather than the actual permanence and severity of their disability:

(i) It is the concern of ME/CFS Legal Resources that the NDIS access and reassessment framework may create socio-economic disparities, whereby individuals with greater financial resources are better able to obtain specialist reports, diagnostic testing, legal representation, advocacy

National Disability Insurance Scheme Amendment

assistance and treatment evidence, thereby increasing their prospects of gaining or retaining access to the Scheme;

(ii) The practical effect of the proposed provisions may be to create a two-tier access system in which access to diagnostic evidence, specialist assessments and supporting documentation becomes a significant determinant of eligibility;

(iii) To the extent that the ability to obtain such evidence is correlated with financial means, geographic location and health-system access, the amendments risk introducing socio-economic inequities into access to the Scheme;

(iv) The Scheme risks becoming more accessible to those who can afford to prove their disability than to those who are most disabled;

(j) As a result, proposed Section 24(5) risks transforming financial disadvantage, workforce shortages and healthcare-system limitations into barriers to Scheme access for some of the most disabled and economically vulnerable people in the community.

(k) ME/CFS Legal Resources is also concerned that proposed Section 24(5) assumes that applicants have access to a medical practitioner capable of providing evidence regarding diagnosis, permanence, treatment history and functional impairment. For a significant number of people with ME/CFS and Long Covid, this assumption is incorrect:

(i) As outlined above, some applicants live in areas where no appropriate medical practitioner is available. Others are housebound or bedbound and cannot physically attend appointments. Many practitioners do not provide home visits, meaning that the applicant has no practical means of

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Submission 2551

obtaining medical evidence. In regional, rural and remote communities, access to medical practitioners may be severely limited or non-existent. Workforce shortages, closed books and the absence of available appointments may further prevent access to medical care;

(ii) There is also a cohort of applicants who have disengaged from the healthcare system entirely after years of disbelief, dismissal, stigma, inappropriate treatment, medical trauma or repeated failures to receive appropriate care. For these individuals, the absence of a treating practitioner is not evidence that disability is absent. Rather, it reflects the reality that they have been unable to obtain meaningful assistance from the healthcare system.

(iii) The practical effect of proposed Section 24(5) is that some applicants may be unable to establish permanence because they cannot obtain the medical evidence required to satisfy the statutory criteria. They are not excluded because their disability is insufficiently severe or insufficiently permanent. They are excluded because they have no medical practitioner capable of providing the evidence demanded by the framework.

(l) ME/CFS Legal Resources submits that applicants should not be denied access to the NDIS because they do not have a medical practitioner. The legislation should recognise that, for some people with severe disability, the absence of a treating practitioner is itself a consequence of geography, workforce shortages, housebound status, bedbound status, financial hardship or prior adverse experiences within the healthcare system. Alternative pathways for establishing eligibility must be available where access to a medical practitioner does not exist in practice.

ME/CFS Legal Resources Inquiry Submission: National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Proposed Section 25A

This proposed amendment impacts applicants with ME/CFS and Long COVID as follows:

The proposed Section 25A, together with proposed Section 24(5), will create significant additional barriers for people with ME/CFS and Long COVID seeking access to the NDIS.
The proposed provisions require consideration of whether an impairment is permanent and whether “all appropriate treatment” has been undertaken before an impairment can be regarded as permanent. This framework may operate unfairly for people with ME/CFS and Long COVID because both conditions are characterised by:
- (a) no established cure;
- (b) symptom-management approaches rather than restorative treatment;
- (c) fluctuating severity and episodic deterioration;
- (d) a misconception that there are uncertain recovery trajectories;
- (e) an evolving scientific understanding (in a world where successive Government provides minimal and often insignificant funding for research – hence the evidence base is limited);
- (f) disagreement within elements of the medical profession regarding prognosis and treatment effectiveness; and
- (g) there is substantial variation in individual response to treatment.
Unlike many conditions where treatment pathways are well established and outcomes reasonably predictable, people with ME/CFS and Long COVID frequently undergo years of investigations, specialist

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consultations, rehabilitation programs and symptom-management interventions without meaningful restoration of function;

Treatment is often directed towards managing symptoms, reducing deterioration and improving quality of life rather than curing the underlying condition;
As a consequence, applicants with ME/CFS and Long COVID may be required to demonstrate:
- (a) no established cure;
- (b) that all “appropriate treatment” has already been undertaken;
- (c) that available interventions are management strategies rather than curative treatments;
- (d) that further treatment is unlikely to materially improve, reverse or alleviate their impairment;
- (e) that the persistence of symptoms is not attributable to a failure to pursue treatment; and
- (f) that their impairment is likely to remain lifelong or indefinite despite ongoing management.

(g) This evidentiary burden may be particularly onerous for people with ME/CFS and Long COVID because medical knowledge continues to evolve. There is a risk that the existence of emerging therapies, experimental interventions or ongoing research may be used to argue that a person’s condition cannot yet be regarded as permanent, even where they have experienced severe disability for many years;

(h) The concern is not merely theoretical;

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(i) ME/CFS Legal Resources is also concerned that proposed s 25A may allow treatment assumptions, practitioner beliefs and clinical disagreements to become barriers to NDIS access for people with ME/CFS and Long Covid; (j) The organisation is particularly concerned that applicants may be disadvantaged where individual practitioners do not recognise the disabling effects of post-exertional malaise (PEM), fluctuating functional capacity, cognitive dysfunction, autonomic dysfunction or the long-term impact of these conditions. Access to disability supports should not depend upon whether an applicant happens to encounter a practitioner who understands the condition, accepts the diagnosis or appreciates its functional consequences.

For ME/CFS and Long Covid, medical knowledge, treatment availability and clinical practice remain highly variable: (a) Some practitioners continue to underestimate the severity of these conditions, minimise functional impairment, or rely upon outdated treatment assumptions that do not reflect current scientific understanding or patient experience; (b) Some practitioners incorrectly conclude that a person does not have substantial functional impairment because symptoms are not immediately observable during consultation, because the applicant presents well on a particular day, or because the practitioner fails to appreciate the effects of PEM, relapse and delayed deterioration; (c) Some practitioners have no confidence in their ability to do any forms of assessment because of their knowledge vacuum and lack of access to education or reliable, up to date, resources;

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(d) Some practitioners still perpetuate the stigmas that have surrounded ME/CFS (and now visited upon Long Covid), that the condition is not real, or is psychological or is mere tiredness; (e) This creates a significant risk that applicants will be assessed according to practitioner opinion rather than their actual disability and support needs.

ME/CFS Legal Resources is also concerned that proposed s 25A may create pressure upon applicants to pursue treatments that are unavailable, inaccessible, unaffordable, experimental, disputed or associated with a reasonable risk of harm: (a) The history of ME/CFS demonstrates the dangers of linking disability recognition to prevailing treatment paradigms; (b) Applicants should not be denied access because they decline interventions they reasonably believe may worsen their condition, because treatment options are unavailable in their region, because waiting lists are excessive, or because the medical profession has not reached consensus regarding effective treatment; (c) Applicants should not be required to repeatedly prove disability through practitioners who do not understand the condition or who dismiss the legitimacy of their symptoms;
Numerous submissions to this inquiry have already expressed concern that the proposed amendments disconnect eligibility decisions from the lived reality of disability and instead focus on abstract concepts of treatment, permanence and functional capacity.
Similar concerns have been raised with respect to psychosocial disability, autism and other conditions where impairment may fluctuate or be heavily influenced by environmental factors;

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

Section 10

The same reasoning applies to ME/CFS and Long COVID. A person may experience profound functional impairment, be unable to work, study, care for themselves independently or participate in community life, yet still face questions about whether additional treatment remains available somewhere within the healthcare system;

Section 11

For people with ME/CFS, this issue is particularly acute because the hallmark symptom of the condition is post-exertional malaise (‘PEM’), a pathological worsening of symptoms following physical, cognitive or emotional exertion. PEM frequently persists despite treatment and often represents the primary reason individuals are unable to maintain employment, education, social participation or independent living.

Section 12

Similarly, many people with Long COVID experience chronic fatigue, cognitive dysfunction, autonomic impairment, orthostatic intolerance and post-exertional symptom exacerbation that continue despite exhaustive treatment efforts. The existence of ongoing symptom-management options does not necessarily indicate that meaningful functional recovery remains achievable.

Section 13

ME/CFS Legal Resources submits that the proposed Section 25A will create a higher access threshold for people with ME/CFS and Long COVID than currently exists under the NDIS Act:

Applicants will, as they already have, be required to continually demonstrate why further treatment is unlikely to improve their condition, notwithstanding the absence of curative therapies and the substantial body of evidence demonstrating that many people experience persistent and disabling symptoms for years;
The practical effect may be that people with severe and enduring disability are denied access to the Scheme not because their support needs are insufficient, but because their conditions do not

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

fit neatly within a treatment-based model of permanence or they cannot afford the cost of repeatedly demonstrating the issue.

Compounding this issue will be the need to generate new evidence to satisfy the decisions made. Such evidence can be delayed or impossible to obtain because:

(a) Many applicants are required to repeatedly prove disability despite long-standing diagnoses, extensive treatment histories and established patterns of impairment;
(b) Long-term treating practitioners may retire, relocate, reduce their practice, close their books or cease treating the applicant, resulting in the loss of clinicians with personal knowledge of the person’s condition and functional history.;
- (i) New practitioners frequently lack the historical knowledge, continuity of care and longitudinal understanding necessary to provide detailed evidence regarding the applicant’s disability over time;
- (ii) Many general practitioners operate under significant time pressures, making it difficult to prepare detailed reports addressing permanence, prognosis, functional capacity, treatment history and support needs;
- (iii) The number of medical practitioners with meaningful expertise in ME/CFS and Long Covid remains extremely limited, particularly outside major metropolitan centres;
- (iv) Applicants living in regional, rural and remote areas often have little or no access to specialist practitioners with expertise in ME/CFS and Long Covid;

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Submission 2551

(i) Appropriately qualified specialists frequently have lengthy waiting lists, significant costs and limited availability; (ii) Many applicants cannot afford repeated specialist consultations, functional assessments, medico-legal reports or supporting documentation; (iii) Public health systems frequently do not provide the specialist assessments required to satisfy evidentiary requirements for NDIS access; (iv) Applicants living in regional, rural and remote areas often have little or no access to specialist practitioners with expertise in ME/CFS and Long Covid;

(d) For many, participation in the process can be harmful: (i) Travel requirements associated with obtaining assessments may be impossible or unsafe for many applicants; (ii) The process of obtaining evidence frequently requires multiple appointments, interviews, examinations and assessments that place substantial physical, cognitive and emotional demands upon the applicant; (iii) For people with ME/CFS and Long Covid, participation in assessment processes may trigger post-exertional malaise (PEM), relapse, symptom exacerbation and prolonged deterioration;

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(iv) The act of preparing for, travelling to, attending and recovering from appointments may itself cause significant harm; (v) Some applicants may experience deterioration from which they do not fully recover following assessment activity; (e) Practitioner knowledge and beliefs can impair the process for applicants and participants: (i) Practitioner knowledge regarding ME/CFS and Long Covid remains highly variable, resulting in inconsistent assessments and reports; (ii) Some practitioners do not recognise the disabling effects of post-exertional malaise, cognitive dysfunction, autonomic dysfunction or fluctuating capacity; (iii) Some practitioners may incorrectly conclude that functional impairment is absent because symptoms are not immediately observable during consultation; (iv) Applicants may encounter practitioners who continue to rely upon outdated treatment assumptions or who underestimate the severity of the condition; (v) Clinical disagreement regarding treatment, prognosis or severity may result in conflicting evidence and increased evidentiary burden for applicants; (f) For those whose condition restricts their function so badly that they are homebound or bed bound, there are particular issues:

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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(i) Travel requirements associated with obtaining assessments may be impossible or unsafe for many applicants particularly the severe and very severely ill; (ii) Housebound applicants face substantial barriers in accessing practitioners willing and able to conduct home-based assessments; (iii) Bedbound applicants may be physically incapable of attending appointments, participating in testing or undertaking conventional assessment processes; (iv) Very few practitioners provide home visits for people with severe and very severe ME/CFS or Long Covid;

(g) The process of assessments raised significant issues: (i) For some applicants, inability to participate in assessment is itself evidence of the severity of their disability; (ii) Carer evidence, family evidence and lived-experience evidence are often necessary to accurately describe day-to-day functioning but may be afforded insufficient weight within assessment processes; (iii) Conventional functional-capacity assessments frequently fail to capture post-exertional malaise, delayed symptom exacerbation and fluctuating disability; (iv) Applicants experiencing poverty may be unable to fund the assessments, reports and specialist consultations required to repeatedly establish eligibility;

(h) Waiting lists, workforce shortages and limited service availability may result in lengthy delays in obtaining evidence;

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 2551

(i) ME/CFS Legal Resources is concerned that the proposed framework assumes that access to medicine is universally available and that applicants have access to medical practitioners capable of diagnosing, treating and providing evidence regarding their disability. For many people with ME/CFS and Long Covid, this assumption is incorrect because:

(i) there is no appropriately qualified practitioner within a reasonable geographic distance of the applicant;

(ii) applicants living in regional, rural and remote communities may have no access to practitioners with contemporary knowledge of ME/CFS or Long Covid;

(iii) many practitioners do not provide home visits, making access impossible for housebound and bedbound patients;

(iv) some applicants are physically incapable of travelling to appointments because of the severity of their condition;

(v) many practitioners are unwilling to diagnose, manage or provide reports regarding ME/CFS or Long Covid;

(vi) some practitioners do not recognise the legitimacy, severity or disabling effects of the conditions and therefore refuse to provide appropriate evidence;

(vii) workforce shortages, closed books and excessive waiting lists mean that access to knowledgeable practitioners may be unavailable for months or years;

(viii) the cost of accessing appropriate practitioners may be beyond the financial capacity of the applicant;