Submission to the Senate Community Affairs Legislation Committee

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

Author: LLM MA MFPol MMPol MEnvSc MSc MBA MDisServ MAutNeu MEd MMH

I write this submission as a disabled Australian, advocate, and community member deeply concerned by the trajectory of the proposed National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026.

While many submissions appropriately address the practical impacts of the Bill — including reduced supports, increased access barriers, worsening poverty, housing insecurity, institutionalisation, mental distress, preventable hospitalisation, family breakdown, and death — this submission raises a structural legal and human-rights issue that has not been adequately addressed in the national discussion.

That issue is a significant gap in Australia’s highest-level legal protections concerning disability within the framework of genocide, crimes against humanity, and war crimes law.

This submission does not assert that genocide, crimes against humanity, or war crimes are occurring. Rather, it identifies a structural exclusion of disability from Australia’s most serious atrocity prevention framework and examines the policy relevance of that exclusion in the context of large-scale disability system reform where foreseeable harm pathways are well documented.

This gap is particularly concerning given the historical reality that disabled people and people with mental illness were among the first victims of the Holocaust, including under early Nazi eugenics programs such as Aktion T4. These atrocities directly informed the development of modern international human-rights law and genocide prevention frameworks.

Structural Gap in Australia’s Genocide and Crimes Against Humanity Framework

Australia’s genocide and crimes against humanity provisions are contained in Division 268 of the Criminal Code Act 1995 (Cth). These provisions exist to implement Australia’s obligations under international law, including the Convention on the Prevention and Punishment of the Crime of Genocide.

However, protected groups are limited to:

• national
• ethnical
• racial
• religious groups

Disabled people are not included.

This exclusion is significant given that Australian law defines genocide to include:

“deliberately inflicting conditions of life calculated to bring about physical destruction.”

And:

“intentional deprivation of resources indispensable for survival, such as deprivation of food or medical services, or systematic expulsion from homes.”

These offences carry a maximum penalty of life imprisonment.

Similarly:

Section 268.4 – Genocide by causing serious bodily or mental harm

Includes:

“serious bodily or mental harm.”

These are operative legal thresholds within Australia’s most serious criminal provisions.

2. Disability Exclusion Within Protected Group Definitions

The limitation arises from Sections 268.5(1)(b) and (c), which require:

“the person or persons belong to a particular national, ethnical, racial or religious group”

and:

“intent to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.”

This limitation appears across Division 268, including genocide by killing, harm, conditions of life, reproduction restrictions, child transfer, crimes against humanity, and war crimes provisions.

The effect is a structural exclusion of disability from Australia’s highest-level atrocity prevention framework.

This is particularly significant given the historical targeting of disabled people through systemic institutionalisation, eugenics, forced sterilisation, and deprivation of care.

3. Contemporary Relevance and System Risk Context

Across the disability community, there is growing concern that NDIS reforms may result in:

• loss of essential supports

• deterioration in physical and mental health

• homelessness

• institutionalisation

• preventable hospitalisation

• severe psychological distress

• and in some cases suicidal ideation or consideration of Voluntary Assisted Dying due to fear of systemic withdrawal

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These are not abstract risks but documented system pathways observed when disability support systems are reduced or destabilised.

For many participants, the NDIS functions as life-sustaining infrastructure, providing essential supports for:

• mobility
• communication
• personal care
• nutrition
• safety
• and community participation

Reforms to this system therefore operate as structural changes to essential living conditions rather than marginal administrative adjustments.

The NDIS should therefore be understood as essential national social infrastructure, functionally comparable to other foundational systems that underpin safety, health, and participation in society, rather than as a discretionary or peripheral welfare program.

Foreseeability and System Pathways

When disability supports are reduced or made more difficult to access, predictable system pathways include:

Reduced supports → increased reliance on informal care → caregiver breakdown → escalation into crisis systems → homelessness, hospitalisation, or institutionalisation

These outcomes are well evidenced across disability policy transitions and must be treated as foreseeable policy impacts, not unintended consequences.

Accordingly, reforms require:

• explicit impact modelling
• disability-specific risk analysis
• and co-designed mitigation strategies

These system pathways are supported by extensive evidence from disability sector research, service system evaluations, and submissions from disability peak bodies documenting the impacts of support reduction and administrative barrier escalation.

Australia’s International Human Rights Obligations

Australia is a State Party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

The CRPD requires protection of:

Relevant Human Rights Principles

The following principles underpin disability rights:

• life
• dignity
• autonomy
• inclusion
• health
• and social protection

Relevant Articles include:

• Article 10 – Right to life
• Article 11 – Situations of risk
• Article 15 – Freedom from degrading treatment
• Article 19 – Independent living
• Article 25 – Health
• Article 28 – Adequate standard of living

These provisions require proactive protection against systemic harm arising from policy decisions.

These obligations are not merely aspirational; they inform the interpretation of domestic legal duties and provide an authoritative framework for assessing whether policy settings are consistent with Australia’s international human-rights commitments.

Domestic Legal Frameworks

Disability Discrimination Act 1992 (Cth)

The Disability Discrimination Act prohibits both direct and indirect discrimination in access to services, including government programs.

While it does not impose a fully articulated general positive duty, its objects and legal structure require governments to avoid foreseeable discriminatory impacts arising from policy design and implementation.

Where NDIS reforms reduce access to essential supports or disproportionately burden disabled people, there is a serious question of indirect discrimination and inconsistency with the Act’s protective purpose.

Australian Constitution

Section 51(xxiiiA) provides Commonwealth power in relation to social welfare supports including medical and social benefits.

This reflects a constitutional expectation that government may and should ensure access to essential welfare supports for vulnerable populations.

NDIS reform must therefore align with the constitutional intent of enabling access to essential support systems, not undermining them.

Administrative Law Principles

Government decision-making must be:

• reasonable
• lawful
• procedurally fair
• and based on relevant considerations

Relevant considerations in disability reform include foreseeable impacts on:

• health
• housing stability
• safety
• independence
• and inclusion

Failure to properly consider these impacts raises concerns regarding administrative validity and adequacy of decision-making.

Nothing About Us Without Us

A foundational principle of disability rights law is:

“Nothing about us without us.”

This principle is embedded in the CRPD and requires that disabled people are not merely consulted, but meaningfully involved in decision-making processes that affect their lives.

This includes structural participation in:

• policy design
• legislative development
• implementation
• and evaluation

Disability Representative Organisations (DROs)

Disability Representative Organisations are essential mechanisms for system accountability and lived- extperience expertise.

To meet CRPD-aligned governance standards, DROs must be:

• resourced
• embedded in co-design processes
• included from the earliest stages of reform

• and empowered to influence final policy outcomes

Failure to structurally embed DROs risks consultation becoming retrospective rather than constitutive, undermining the principle of genuine participatory governance.

Historical Context and Human Rights Rationale

Disabled people were among the earliest victims of Nazi eugenics programs, including Aktion T4.

These historical realities shaped the development of modern human-rights frameworks and genocide prevention law.

The purpose of these frameworks was to ensure that no group would again be excluded from protection on the basis of perceived cost, burden, or social expendability.

Legal and Moral Significance

Law is both punitive and normative: it defines which harms are recognised as intolerable and which groups are fully protected.

The exclusion of disability from Division 268 reflects a structural gap in recognition at the highest level of legal protection.

This submission does not allege wrongdoing but identifies a structural inconsistency between:

• Australia’s disability rights framework

• and its atrocity prevention framework

This submission does not seek to attribute wrongdoing to any individual officeholder or institution. Rather, it raises a structural issue in the alignment between Australia’s domestic legal framework and its international human-rights obligations, particularly in the context of large-scale disability policy reform. The intent is to support legislative coherence, rights compliance, and risk prevention at a systemic level.

Obligations Under Broader International Law

Australia also holds obligations under:

• ICCPR

• ICESCR

• CAT

• Genocide Convention

These instruments collectively establish obligations regarding:

• equality

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• dignity
• non-discrimination
• access to healthcare
• and protection from systemic harm

International law increasingly recognises that severe systemic deprivation of essential supports can constitute human-rights harm even without explicit intent.

Recommendations

I therefore call for:

1. Immediate reconsideration of the Bill with full disability-led consultation and human rights impact assessment.

2. Independent review of compatibility with CRPD, ICCPR, ICESCR, and CAT obligations.

3. Review of Division 268 of the Criminal Code Act 1995 (Cth) regarding exclusion of disability.

4. Consideration of extending protected-group definitions to include disability and mental illness.

5. Mandatory disability human rights compatibility assessments for all reforms.

6. Stronger incorporation of CRPD obligations into domestic law, including enforceable positive duties.

“Never Again” has meaning only if it applies universally.

A nation’s commitment to human rights is measured not by how it treats the powerful, but by how it protects those most vulnerable to abandonment and systemic harm.

Disabled Australians must be fully recognised within Australia’s legal and moral protections.