Concerns regarding NDIS safety net removal (Individual advocacy)

Submission 377

National Disability Insurance Scheme

Amendment (Securing the NDIS for Future Generations) Bill 2026 (the Bill).

Submission to the Senate Community Affairs

Legislation Committee

1 June 2026

Submission 377

Contents Who we are …………………………………………………………………………………………………………………………… 4

Introduction ………………………………………………………………………………………………………………………….. 5

Background: The NDIS as a Needs-Based Scheme ………………………………………………………………………. 6

Concern 1: Discrimination Based on the Cause of Disability (Schedule 1, Part 9 — Section 25B) ……… 6

The problem section 25B purports to solve is already addressed by existing law ……………………….. 7

The same disability; different rights ……………………………………………………………………………………… 8

CRPD compatibility ……………………………………………………………………………………………………………… 9

Section 25B should be removed entirely ……………………………………………………………………………….. 9

Concern 2: CEO Determination of Cause of Impairment Creates a Support Vacuum (Schedule 1, Part 9 — Section 25B) ………………………………………………………………………………………………………………….. 10

Causation disputes are protracted and legally complex …………………………………………………………. 10

The trigger should be formal acceptance by the compensation scheme ………………………………….. 10

Concern 3: The Word ‘Provides’ Captures Persons with No Ongoing Entitlement (Schedule 1, Part 9 — Section 25B) …………………………………………………………………………………………………………………….. 11

Short tail insurance schemes ……………………………………………………………………………………………… 11

Ongoing, actual entitlement should be the test ……………………………………………………………………. 12

Concern 4: Eligibility Threshold Delegated to Post-Passage Instruments (Schedule 1, Part 1) ………… 12

Concern 5: Unscheduled Reassessment Restrictions Entrench Deterioration (Schedule 1, Part 2) …. 13

Concern 6: The ‘Directly Related’ Requirement Excludes Consequential Disability (Schedule 1, Part 3) ………………………………………………………………………………………………………………………………………….. 13

Concern 7: Ministerial Power to Cut Category Budgets Without Parliamentary Oversight (Schedule 1,

Part 4) …………………………………………………………………………………………………………………………………. 14

Concern 8: Plan Suspension and Revocation Powers Endanger Vulnerable Participants (Schedule 1,

Part 7) …………………………………………………………………………………………………………………………………. 15

Concern 9: The Treatment Requirement Penalises Those Unable to Access Treatment (Schedule 1,

Part 8) …………………………………………………………………………………………………………………………………. 16

Concern 10: Sustainability and Equity as Planning Factors Introduce Rationing (Schedule 4)…………. 17

Summary of Concerns …………………………………………………………………………………………………………… 18

Recommendations ……………………………………………………………………………………………………………….. 19

Conclusion …………………………………………………………………………………………………………………………… 21

Submission 377

Who we are

The Australian Lawyers Alliance (ALA) is a national association of lawyers, academics and other

professionals dedicated to protecting and promoting access to justice and equality before the law for

all individuals.

Our members and staff advocate for reforms to legislation, regulations and statutory schemes to

achieve fair outcomes for those who have been injured, abused or discriminated against, as well as

for those seeking to appeal administrative decisions.

The ALA is represented in every state and territory in Australia. We estimate that our 1,500 members

represent up to 200,000 people each year across Australia.

Our head office is located on the land of the Gadigal people of the Eora Nation. As a national

organisation, the ALA acknowledges the Traditional Owners and Custodians of the lands on which our

members and staff work as the First Peoples of this country.

More information about the ALA is available on our website.1

1 www.lawyersalliance.com.au.

Submission 377

Introduction

The ALA is the peak body representing plaintiff lawyers across Australia. Our members act for individuals who have suffered personal injury, including injuries arising from motor vehicle

accidents and workplace incidents. We appear regularly in compensation proceedings before

state and territory tribunals and courts, and have extensive experience advising clients whose

needs fall at the intersection of the National Disability Insurance Scheme (NDIS) and the

various workers’ compensation and compulsory third party (CTP) insurance regimes.

The ALA welcomes the opportunity to make a submission to the Senate Community Affairs

Legislation Committee regarding the National Disability Insurance Scheme Amendment

(Securing the NDIS for Future Generations) Bill 2026 (the Bill).

The ALA recognises the importance of ensuring the long-term financial sustainability of the NDIS. However, the Bill as currently drafted contains a number of provisions that will

materially reduce the eligibility, entitlements and procedural rights of Australians with

permanent disability — and will do so with a degree of executive discretion and a lack of

parliamentary oversight that is inconsistent with the scheme’s foundational character as a

statutory entitlement based on need.

This submission identifies ten distinct concerns with the Bill. Each is addressed in a numbered section below. The concerns are not ranked by priority — each raises a serious issue of

principle or practical consequence that the ALA submits warrants amendment. A consolidated

table of recommendations is set out at a later part in the submission.

Further, we note the extraordinary brevity of the period for submissions. When the NDIS was first legislated, it was rushed by a year, fundamental design problems were identified and

analysed and suggestions for delaying the scheme, and amendment to get things right, were

rejected. Over 20 major inquiries into the scheme since, all identified the major design flaws.

This latest Bill has fundamental problems, which if not remedied by removal or amendment,

will guarantee the worst possible outcomes for some participants. The short period for

consultation assures that past egregious mistakes will be repeated.

Submission 377

Background: The NDIS as a Needs-Based Scheme

The NDIS was established as a universal, needs-based scheme. Its foundational principle is that a person’s disability support needs should be met regardless of the cause of their

disability. This principle reflects the scheme’s character as a no-fault social insurance system

designed to provide reasonable and necessary supports to Australians with permanent and

significant disability.

The ALA’s membership has direct experience of the scheme’s operation in practice. Our members regularly advise and represent injured persons — workers and road users — who

have sustained permanent disability and whose needs fall at the intersection of the NDIS and

alternative insurance schemes. The concerns identified in this submission are not abstract.

They reflect the real circumstances of real people whom our members represent.

The ALA does not oppose the Bill’s stated objectives of ensuring sustainability, preventing fraud, and clarifying scheme boundaries. Our concerns are directed at specific provisions

whose drafting or design will cause disproportionate harm to vulnerable participants,

introduce unjustifiable executive discretion, or produce outcomes that are inconsistent with

the scheme’s foundational character.

Concern 1: Discrimination Based on the Cause of Disability (Schedule 1, Part 9 — Section 25B)

Proposed section 25B excludes from NDIS eligibility any impairment arising from a workplace injury or motor vehicle accident where a workers’ compensation or CTP scheme ‘provides’ for

that impairment. The ALA submits that this provision is discriminatory in its effect, legally

problematic, and — critically — directed at a problem whose existence and materiality has

not been established.

Of particular relevance to the s 25B concerns, the ALA draws the Committee’s attention to the fact that the existing legislative framework already addresses the overlap between the NDIS

and workers’ compensation and CTP schemes. The NDIS Act, Rules and bilateral agreements

already operate to prevent double-dipping. Under the existing framework, the NDIS should

not fund supports that are the responsibility of a compensation scheme. Where a

compensation scheme provides support, the NDIS should not duplicate it. Where a

compensation scheme does not provide support — because the person’s entitlements have

been exhausted, because the scheme does not cover a particular need, or because the person

Submission 377

has no ongoing entitlement — the NDIS can and does step in to fill the gap. This is not double

dipping. It is the safety net functioning as designed.

Against that background, the ALA questions the premise of section 25B. The Government has not identified, and the Explanatory Memorandum does not disclose, any evidence that the

existing framework is failing to prevent double-dipping, or that persons with workplace and

motor vehicle injuries are accessing the NDIS in a way that duplicates their compensation

entitlements at material cost to the scheme. Before Parliament enacts a provision that will

discriminate against an entire class of people with permanent disability on the basis of the

cause of their injury, it should require the Government to demonstrate that the problem

section 25B purports to solve actually exists, and that it exists at a scale that justifies the harm

the provision will cause.

The problem section 25B purports to solve is already addressed by existing law

The Government’s justification for section 25B is, implicitly, that persons with workplace and motor vehicle injuries are accessing the NDIS in a way that duplicates their compensation

entitlements — that there is, in effect, a double-dipping problem requiring a legislative

remedy.

The ALA submits that this premise has not been established, and that the existing legislative framework already addresses it. The NDIS Act, read with the Applied Principles and Table of

Support (APTOS) developed through bilateral agreements between the Commonwealth and

states and territories, already prevents the NDIS from funding supports that are the

responsibility of a compensation scheme. A person with a workers’ compensation or CTP

entitlement does not receive the same support from both the compensation scheme and the

NDIS. Moreover, the NDIS can already take into account lump sum compensation when

approving NDIS funding through the application of the Compensation Reduction Amount. This

prevents  ‘double  dipping’  in  circumstances where someone  has  exited  a  workers

compensation or CTP insurance scheme with a lump sum.

What the NDIS does — and what it was always designed to do — is supplement gaps where compensation entitlements are insufficient or where the person’s needs extend beyond what

the scheme covers. This is not a design flaw. It is the scheme functioning as intended.

Submission 377

The Explanatory Memorandum does not identify any evidence that double-dipping under the existing framework is occurring at scale. It does not quantify the problem. It does not identify

cases where the current framework has failed to prevent duplication. It asserts a problem

without demonstrating it. The ALA views that this is an insufficient basis on which to enact

a provision that will, as demonstrated in sub-sections 3.2 to 3.4 below, discriminate against

an entire class of people with permanent disability and remove the NDIS safety net from

some of the most vulnerable participants in the scheme.

The Committee should require the Government to produce the evidence base for section 25B before the Bill proceeds: specifically, the data on the cost and scale of NDIS access by persons

with workers’ compensation or CTP entitlements, disaggregated to show the extent to which

that  access  represents  duplication  of  existing  scheme  coverage  as  opposed  to

supplementation of gaps in it. Without that evidence, the Committee cannot assess whether

section 25B is a proportionate response to a real problem, or a significant restriction on rights

in search of a justification.

The same disability; different rights

Consider two people, each with paraplegia requiring full-time support coordination, home modifications, assistive technology, and community participation funding. Their functional

impairment is identical. Their support needs are identical. Their prognosis is identical.

The first person acquired their paraplegia in a diving accident. They have full access to the NDIS. Their needs will be assessed and funded on the basis of what is reasonable and

necessary.

The second person acquired their paraplegia in a workplace accident. Under section 25B, their impairment may be excluded from NDIS eligibility entirely. They are directed to a workers’

compensation scheme that may not provide a commensurate, or even sufficient, level of

support.

Entitlements vary significantly between jurisdictions. They do not uniformly provide the breadth of support the NDIS offers — including community participation, support

coordination, and capacity-building — nor do they necessarily operate on a needs-based

assessment model. The person’s supports are also subject to the financial and political

circumstances impacting the alternative schemes but, under the amendments, would no

longer have the safety net currently provided by the NDIS.

Submission 377

The result is that a worker injured in New South Wales may receive substantially different support from a worker with an identical injury in Queensland, and both may receive support

that falls far short of what the NDIS would provide. Section 25B locks in that inequality,

jurisdiction by jurisdiction, with no floor, no consistency, and no review. Under the existing

framework, the NDIS fills the gaps where compensation entitlements are insufficient. Section

25B removes that safety net.

This will create inequalities, with some people receiving less supports for the same injury or disability.
These two people are not differently disabled. They are not differently needy. They are treated differently for one reason only: the circumstances in which their disability occurred.

Section 25B makes the NDIS a scheme for some people with permanent disability, but not

others — not because their disability is less real or less significant, but because of where they

were standing when it happened. The NDIS was intended to a safety net to mitigate such

inequities, not create them.

CRPD compatibility

The CRPD, ratified by Australia in 2008, requires that persons with disability enjoy their rights without discrimination of any kind. Article 28 recognises the right to an adequate standard of

living and social protection, to be provided without discrimination. Articles 4 and 5 collectively

require States Parties to take all appropriate measures to ensure that persons with disability

can exercise their rights on an equal basis with others.

The CRPD Committee has made clear that discrimination includes indirect discrimination — measures that appear neutral on their face but have a disproportionate adverse effect on

persons with disability. Section 25B, by excluding from the NDIS a class of persons defined by

how they acquired their disability rather than by what their disability is, produces precisely

that effect. The Government has not provided a CRPD compatibility analysis of section 25B.

The ALA submits that such an analysis is essential before the Bill proceeds.

Section 25B should be removed entirely

For the reasons outlined above, the ALA recommends that Section 25B should be removed for the Bill.

Submission 377

Concern 2: CEO Determination of Cause of Impairment Creates a Support Vacuum (Schedule 1, Part 9 — Section 25B)

Section 25B confers on the NDIA CEO the power to determine whether an impairment ‘arises from’ a workplace injury or motor vehicle accident for the purposes of the exclusion. This is,

in principle, a straightforward factual inquiry. In practice, it is anything but.

Causation disputes are protracted and legally complex

In compensation law, questions of causation — whether an injury arose in the course of employment or from a motor vehicle accident, the degree to which an impairment is

attributable to a pre-existing condition versus the accident, and the extent of consequential

injury — are among the most contested issues in litigation. They frequently require multiple

independent  medical  examinations,  expert  evidence from  different  disciplines, and

adjudication. In the workers’ compensation and CTP context, eligibility disputes can take up

to two years or more to resolve before a tribunal or court.

Section 25B requires the NDIA CEO to make a determination on precisely these questions — without any apparent obligation to defer to the outcome of compensation proceedings, and

without procedural rules ensuring access to the same standard of evidence applied in

compensation tribunals. The ALA is deeply concerned that the CEO will make a finding that an

impairment arises from a compensable event, thereby excluding it from NDIS eligibility, in

circumstances where eligibility for the alternative workers compensation or CTP scheme is yet

to be determined.

In such circumstances, a person could be denied NDIS access for the duration of the eligibility proceedings — potentially two years or more — only for a court to determine that they were

never entitled to cover from the alternative scheme in the first place. The NDIS exclusion

would have been applied in error, and the person would have been without supports

throughout.

The trigger should be formal acceptance by the compensation scheme

Noting our objection to the entirety of Section 25B, if it is pursued it must be amended so that the appropriate trigger is the formal acceptance of liability by the relevant workers’

Submission 377

compensation or CTP scheme — not a determination by the NDIA CEO – and the benefits

flowing subsequently. This would ensure that the exclusion only applies where the

compensation system has actually accepted responsibility for the impairment; that the

determination is made by the body with the statutory expertise and jurisdiction to make it;

and that a person is not excluded from the NDIS while causation remains genuinely disputed.

Under this approach, an applicant whose compensation claim is pending would remain eligible for NDIS access in the interim, and the NDIA would be empowered to seek recovery from the

compensation insurer upon acceptance of liability — consistent with models already

operating in other insurance and public funding contexts.

Concern 3: The Word ‘Provides’ Captures Persons with No Ongoing

Entitlement (Schedule 1, Part 9 — Section 25B)

Section 25B excludes an impairment where a compensation scheme ‘provides’ for it. The ALA submits that this language is overbroad in a manner that produces results plainly at odds with

the provision’s evident purpose.

Short tail insurance schemes

Some workers compensation and CTP schemes around Australia provide for injured people to be removed from the scheme at a certain point (for example, after a finite period of time or

once it is determined that their injury has sufficiently improved). Affected people may receive

a lump sum on exit but do not receive ongoing funded supports. The critical question is

whether that scheme still ‘provides’ for such a person’s impairment within the meaning of

section 25B once they have exited that scheme.

On a plain reading of ‘provides’, the answer is arguably yes. If this reading is correct, a person who has received a lump sum and has no ongoing entitlement to care supports will

nonetheless have their impairment excluded from NDIS eligibility. While it could be said that

the lump sum provided on exit provides for the person’s ongoing support needs, the reality is

that this sum is unlikely to be sufficient in many circumstances for reasons completely out of

the person’s control. Removing the safety net that the NDIS currently provides will lead to

some injured Australians having no support at all or, at best, a level of support much lower

than that enjoyed by others with exactly the same disability who have access to the NDIS.

Submission 377

Ongoing, actual entitlement should be the test

Again noting our objection to the entity of Section 25B, if pursued it must be amended to make clear that the exclusion applies only where the person currently holds ongoing

entitlements to receive supports from the relevant scheme. A scheme that once applied, but

from which the person has exited by accepting a lump sum — or whose entitlements have

been exhausted or have expired — should not constitute a scheme that ‘provides’ for the

impairment. An appropriate formulation would require that the person ’is currently entitled

to receive’ relevant supports, rather than that the scheme ‘provides for’ the impairment.

Concern 4: Eligibility Threshold Delegated to Post-Passage

Instruments (Schedule 1, Part 1)

The Bill replaces some diagnosis-based access criteria with a new threshold requiring an applicant to demonstrate a ‘substantially reduced functional capacity’ impacting daily life. The

threshold and assessment methodology are not defined in the Bill — they are to be set by

future rules and instruments developed after the Bill passes.

The ALA does not oppose the principle of needs-based assessment. However, the delegation of the substantive eligibility threshold to subordinate legislation — instruments that may not

be subject to parliamentary disallowance — creates a fundamental accountability gap.

Parliament is being asked to authorise a new eligibility framework without knowing what the

threshold will actually require in practice. The Government has estimated that 160,000

current participants may be transitioned out of the scheme under the new criteria. The basis

for that estimate, and the methodology that would produce it, is not disclosed in the material.

There also does not appear to be any transitional protection for existing participants who may no longer meet the new threshold when reassessed.
The ALA recommends that the substantive eligibility threshold — including the definition of ‘substantially reduced functional capacity’ and the methodology for its assessment — be

included in primary legislation or, at a minimum, in disallowable instruments tabled before

the Bill commences.

Submission 377

Concern 5: Unscheduled Reassessment Restrictions Entrench

Deterioration (Schedule 1, Part 2)

Part 2 significantly restricts a participant’s ability to seek an unscheduled reassessment of their plan. An unscheduled reassessment will only be available where there has been a ’significant

and ongoing’ change in functional capacity affecting daily activities. The response window is

extended from 21 to 90 days.

This restriction is poorly designed for the clinical realities of acquired disability. Persons injured in workplace accidents or motor vehicle incidents frequently present with conditions

that are episodic, fluctuating, or progressive — including traumatic brain injury, spinal cord

injury, complex regional pain syndrome, and post-traumatic psychological conditions. The

trajectory of these conditions  is not  linear, and a person may experience significant

deterioration that does not constitute a permanent change in functional capacity but creates

an urgent and immediate need for additional support.

The requirement that a change be both ‘significant’ and ‘ongoing’ before a reassessment can be triggered means that a participant whose condition has deteriorated must wait —

potentially for the deterioration to become entrenched — before the NDIS will respond. This

is directly contrary to the scheme’s early intervention principles, which recognise that timely

support can prevent deterioration and reduce the long-term cost of disability.

The 90-day response window compounds this problem. A participant in crisis who cannot obtain a timely reassessment has, in practice, no recourse within the scheme for three

months. For persons with acquired brain injury or severe psychological injury, this is an

unacceptable gap. The ALA recommends that the criteria be amended to allow reassessment

on any material change in support needs, whether or not it reflects a permanent shift in

functional capacity, and that the response window for urgent clinical situations be capped

at 30 days.

Consequential Disability (Schedule 1, Part 3)

Part 3 provides that supports will only be funded where the need for a support arises directly from an impairment for which the participant met the access criteria. The ALA is concerned

that the word ‘directly’ will be interpreted to exclude support for the secondary and

Submission 377

consequential effects of a primary impairment — effects that are in many cases more disabling

in practice than the primary injury itself.

A person who sustains a severe spinal injury may subsequently develop a depressive disorder, chronic pain syndrome, or social isolation as a direct consequence of the physical impairment

and its impact on their capacity to work, maintain relationships, and participate in the

community. Under a strict reading of ‘directly’, the NDIS may decline to fund mental health

supports or community participation supports on the basis that the need arises from the

secondary condition, not directly from the original impairment.

This produces a perverse outcome: the original physical injury becomes the gateway to NDIS access, but some ongoing support needs risk being excluded from funding. In law and

medicine, “directly” is rarely a neat and simple concept. Supports, the need for which may

arise from the combined effects of multiple disabilities, could become excluded. Litigation

may be required to then attribute a need to particular diagnosis.

The ALA recommends that ‘directly’ be replaced with language capturing support needs arising from an impairment, including its secondary, consequential and interactive effects

on a participant’s functional capacity, mental health, and community participation.

Concern 7: Ministerial Power to Cut Category Budgets Without

Parliamentary Oversight (Schedule 1, Part 4)

Part 4 enables the Commonwealth Minister to reduce support budgets for specified categories of support — initially social and community participation and capacity building

daily activities — by a set percentage, by legislative instrument. No sunset clause is provided,

and the Bill does not specify that such instruments are subject to parliamentary disallowance.

The ALA is deeply concerned by the concentration of executive power this represents. The ability to reduce, by ministerial determination, the funding available to 760,000 people for

whole categories of support — without a parliamentary vote, without a defined review

mechanism, and without a sunset clause — is inconsistent with the scheme’s character as a

statutory entitlement. Combined with the ministerial pricing power in Schedule 3, this gives a

single minister unchecked control over what the NDIS pays for and how much, indefinitely and

without parliamentary scrutiny.

Social and community participation is not a peripheral support type. For many persons with acquired disability — including injured workers rebuilding their lives after a serious workplace

Submission 377

accident — community participation supports are central to rehabilitation, mental health, and

the capacity to re-engage with employment and social life. An arbitrary percentage reduction

in this category will have real consequences for real people, imposed by ministerial decree

without any individual assessment of need.

The ALA recommends that any power to reduce category-wide support budgets by ministerial determination be subject to mandatory parliamentary disallowance, a sunset

clause, and a statutory consultation process with the disability community before any

determination is made.

Concern 8: Plan Suspension and Revocation Powers Endanger

Vulnerable Participants (Schedule 1, Part 7)

Part 7 allows the NDIA to suspend a participant’s plan where the NDIA has been unable to contact the participant after ‘reasonable attempts’, and to revoke a participant’s status after

90 days of suspension.

The categories of persons most likely to be unreachable by the NDIA are precisely those whose need for support is greatest: people experiencing a mental health crisis, people who are

hospitalised or in residential care, people experiencing homelessness or housing instability,

people with communication impairments, and people in regional and remote areas with

limited connectivity. Section 25B already directs persons with workplace and road injuries

away from the NDIS. Part 7 creates a further mechanism by which those who do retain access

can lose it through administrative failure rather than a determination about their needs.

The consequence of revocation is severe. A person who has had their status revoked must reapply and meet the access criteria afresh. For a person with a serious acquired disability,

the reapplication process is burdensome and may take many months. In the interim they have

no funded support.

The term ‘reasonable attempts’ is undefined. There is no requirement that attempts to contact a participant include engagement with their support network, treating practitioners,

or Local Area Coordinator before suspension is initiated, and no safeguards for participants

with communication impairments or those  in  crisis. The ALA recommends that the

suspension and revocation powers be amended to require the NDIA to contact the

participant’s support network and treating practitioners before suspending a plan, prohibit

revocation where clinical evidence indicates the participant is unable to respond, and

Submission 377

establish an expedited reinstatement pathway for persons revoked due to circumstances

beyond their control.

Concern 9: The Treatment Requirement Penalises Those Unable to

Access Treatment (Schedule 1, Part 8)

Part 8 amends the definition of permanence to require that, before an impairment is considered permanent, all appropriate treatment available to remedy or alleviate the

impairment must have been undertaken. The Bill states that individual circumstances —

including financial circumstances and geographic location — may be disregarded in assessing

what treatment is ‘appropriate’.

Many people who have acquired a disability live in regional and remote areas of Australia, and/or are of limited financial means. For these persons, access to specialist treatment —

neurosurgery, specialist rehabilitation, pain medicine, specialist psychiatry — may be severely

constrained by geography, cost, or wait times, regardless of their willingness to pursue it.

These factors can create barriers even for those who live in metropolitan centres. The Bill’s

explicit disregard of financial circumstances and geographic location means that a person in

outback New South Wales who has not been able to access a specialist available only in Sydney

may be told their impairment is not permanent — not because their condition is remediable,

but because a treatment theoretically exists that they have not been able to obtain. The failure

is one of the health system, not of the person’s disability or their commitment to treatment.

This provision also creates a perverse interaction with the compensation context specifically. Insurers in workers’ compensation and CTP schemes routinely dispute the extent and

permanence of impairment, and may decline to fund specialist treatment or referrals. A

person whose insurer has refused to fund recommended treatment — or whose treatment

has been delayed by the compensation system’s own processes — may find their NDIS access

barred on the basis that they have not completed appropriate treatment, through no fault of

their own. The insurer’s refusal becomes a bar to NDIS access.

The ALA recommends that the permanence definition be amended to provide that an impairment will be treated as permanent where appropriate treatment is not reasonably

accessible to the person, having regard to their financial circumstances, geographic location,

and the availability of the treatment in their region. Theoretical availability is an insufficient

standard in a country with significant rural and remote healthcare gaps.

Submission 377

Concern 10: Sustainability and Equity as Planning Factors Introduce

Rationing (Schedule 4)

Schedule 4 provides that the NDIA must consider scheme sustainability and equity across participants with similar needs and circumstances when determining what supports are

reasonable and necessary to fund. The ALA is concerned that the introduction of these factors

into individual planning decisions marks a significant departure from the scheme’s needs

based character.

The NDIS has always operated on the basis that each participant’s plan reflects their individual reasonable and necessary support needs. The introduction of scheme sustainability as a

planning criterion means that a participant’s supports may be assessed downward not

because their needs have changed, but because the aggregate cost of the scheme requires

restraint. This is a rationing principle, not a needs-based one.

The equity factor — requiring consistency with participants of similar needs — could operate positively if it prevents unjustified disparities in planning outcomes. However, it could equally

operate to cap supports at a median that is insufficient for participants with higher-than

average needs within a category. For persons with complex acquired disability, whose support

needs may be intensive and individually variable, a consistency requirement driven by peer

group averages risks systematic underfunding.

The ALA recommends that the sustainability and equity factors be framed as matters the NDIA may have regard to in designing the scheme’s overall resource allocation, rather than

as factors in individual planning decisions that can operate to reduce a participant’s

supports below the level of their reasonable and necessary needs.

Accountability and Access to Justice in NDIA Decision-Making

The ALA has since before the scheme commenced, been critical of the lack of accountability of the NDIA due to the failure of the legislation to provide legal costs to participants who are

successful in the AAT (now ART).

That legal costs are not payable, no matter how badly wrong the NDIA’s decision are, forces participants and their families to either self-represent against the NDIA who uses expensive

and skilled national law firms; or to pay their own legal costs. This gross power imbalance is

well-understood and leveraged by the NDIA, whose modus operandi continues to be one of

dispute and delay until the matter is at the door of the Tribunal, then to concede or

Submission 377

negotiate. Legal costs consequences following participants’ success in the ART would assist

to drive better quality decisions and engender improved accountability of decision-makers.”

Summary of Concerns

The ALA’s concerns with the Bill are as follows: a. Concern 1 (s 25B — no evidence base, discrimination): The existing framework already prevents double-dipping between the NDIS and compensation schemes. The

Government has presented no evidence that the current framework is failing or that

duplication is occurring at a scale that justifies section 25B. The provision removes the

NDIS safety net from people with identical disabilities to those who retain full scheme

access, based solely on the cause of injury — a distinction with no principled basis in

disability law and serious CRPD compatibility implications.

b. Concern 2 (s 25B — CEO determination): The NDIA CEO is required to determine causation questions that properly belong to compensation tribunals and courts. A

person may be excluded from the NDIS for years, left without supports, and later

found by a court never to have had a valid compensation entitlement.

c. Concern 3 (s 25B — ‘provides’): The word ‘provides’ will likely capture persons who have opted out of ongoing NIISQ entitlements by accepting a lump sum, leaving them

with  neither compensation supports nor NDIS  access  despite  presenting no

duplication risk.

d. Concern 4 (functional capacity threshold): The substantive eligibility threshold is delegated to post-passage instruments, meaning Parliament is authorising a

framework that will remove an estimated 160,000 participants without knowing what

the operative criteria will require.

e.  Concern 5  (reassessment  restrictions): The  'significant and  ongoing' change

requirement and 90-day response window are poorly calibrated for episodic,

fluctuating and progressive conditions, and are contrary to the scheme’s early

intervention principles.

f. Concern 6 (‘directly related’): The requirement that supports arise directly from an eligible impairment risks excluding support for the secondary and consequential

Submission 377

effects of disability — including psychological conditions and social isolation arising

from a primary physical injury — which are often the most disabling in practice.

g. Concern 7 (ministerial budget cuts): The power to reduce category-wide support budgets by ministerial determination, without parliamentary disallowance or a sunset

clause, is inconsistent with the scheme’s character as a statutory entitlement and

removes a fundamental check on executive power.

h. Concern 8 (suspension and revocation): The plan suspension and revocation powers lack adequate safeguards for the participants most likely to be unreachable — those

in crisis, hospitalised, homeless, or with communication impairments — who are also

those with the greatest need.

i.  Concern 9 (treatment requirement): Disregarding  financial circumstances and

geographic location in assessing whether a person has undergone appropriate

treatment will bar NDIS access for injured persons in regional and remote areas who

cannot access specialist treatment, through no fault of their own.

j. Concern 10 (sustainability and equity as planning factors): Introducing scheme sustainability as a factor in individual planning decisions imports a rationing principle

into a needs-based scheme and may  systematically undermine the plans  of

participants with intensive or individually variable support needs.

Recommendations

The ALA makes the following recommendations to the Committee: a. Recommendation 1 — Remove Section 25B. The current framework already addresses the problem it seems to be directed at, and there is no evidence that there

is a significant problem with duplication or ‘double dipping’. Further, these

amendments are not neutral – they will create inequities and gaps for people living

with disability.

b. Recommendation 2 - Amend the s 25B exclusion trigger: Section 25B should only exclude an impairment from NDIS eligibility where the relevant workers’

compensation insurer or CTP scheme has formally accepted  liability  for that

Submission 377

impairment. Pending acceptance — including during any dispute, appeal, or litigation

— the applicant should retain NDIS eligibility, with provisions for NDIA recovery

against the insurer upon subsequent acceptance.

c. Recommendation 3 — Require ongoing actual entitlement: The s 25B test should require that the person currently holds ongoing entitlements to receive supports from

the relevant scheme. Persons who have accepted lump sum settlements, whose

entitlements have expired, or whose claims have been rejected should not be

excluded from the NDIS.

d. Recommendation 4 — Expressly exclude NIISQ lump-sum opt-outs: The Bill should expressly confirm that a person who has exercised their right under the National

Injury Insurance Scheme (Queensland) Act 2016 or applicable CTP legislation to accept

a common law lump sum and exit ongoing scheme entitlements is not subject to the

s 25B exclusion.

e. Recommendation 5 — Provide a CRPD compatibility analysis: The Government should provide the Committee with a full CRPD compatibility analysis of section 25B

before the Bill progresses, addressing the non-discrimination obligations engaged by

differential treatment based on the cause of disability.

f.  Recommendation 6 — Disclose the  eligibility threshold before passage: The

substantive  definition  of  'substantially  reduced  functional  capacity' and  the

assessment methodology must be included in primary legislation or disallowable

instruments tabled before the Bill commences.

g. Recommendation 7 — Broaden unscheduled reassessment criteria: Reassessment should be available on any material change in support needs. The 90-day response

window should be capped at 30 days where there is medical evidence of deteriorating

or urgent need.

h. Recommendation 8 — Amend ‘directly related’: The requirement that supports arise directly from an eligible impairment should be amended to capture secondary,

consequential and interactive effects of an impairment, including psychological

conditions and social isolation arising from an acquired physical disability.

Submission 377

i. Recommendation 9 — Subject budget reduction powers to parliamentary scrutiny: Any ministerial determination reducing category-wide support budgets must be a

disallowable instrument, subject to a sunset clause, and preceded by statutory

consultation with the disability community.

j. Recommendation 10 — Strengthen safeguards for suspension and revocation: Before suspending a plan, the NDIA must be required to contact the participant’s

support network, nominees and  treating  practitioners. Revocation should be

prohibited where clinical evidence indicates the participant cannot respond. An

expedited reinstatement pathway must be established.

k. Recommendation 11 — Amend the treatment requirement: An impairment should be treated as permanent where appropriate treatment is not reasonably accessible

to the person, having regard to their financial circumstances and geographic location.

Theoretical availability is an insufficient standard.

l. Recommendation 12 — Reframe sustainability and equity as scheme-level factors: Sustainability and equity should be factors in the NDIA’s overall resource allocation

framework, not criteria applicable in individual planning decisions that can reduce a

participant’s supports below the level of their reasonable and necessary needs.

Conclusion

The ALA welcomes the opportunity to have input to the Committee on this Bill.
The ALA supports efforts to ensure the long-term sustainability and integrity of the NDIS. The concerns identified in this submission are not directed at the Bill’s objectives. They are

directed at specific provisions whose drafting or design will cause disproportionate harm to

Australians with permanent disability — and in particular to workers and road users with

acquired disability, who are already subject to the additional burden of parallel compensation

proceedings.

The ALA draws particular attention to the absence of any evidence base for section 25B. The existing framework already prevents double-dipping between the NDIS and other work and

CTP compensation schemes. The NDIS does not duplicate compensation entitlements — it

supplements gaps in them. Before Parliament enacts a provision of this significance, it should

Submission 377

require the Government to demonstrate that there is a material duplication problem that the

existing framework has failed to address. No such evidence has been presented. Section 25B

appears to address a problem whose existence and scale has not been established, at the cost

of removing the NDIS safety net from some of the most vulnerable participants in the scheme.

The ten concerns identified are each amenable to targeted amendment. None requires the defeat of the Bill. The ALA urges the Committee to recommend the amendments set out in

section 14, and to ensure that the Bill does not proceed in its current form without those

protections in place.

The ALA is available to provide further information or to give oral evidence to the Committee if that would be of assistance.

National Disability Insurance Scheme

Submission to the Senate Community Affairs

Legislation Committee

Concern 7: Ministerial Power to Cut Category Budgets Without Parliamentary Oversight (Schedule 1,

Concern 8: Plan Suspension and Revocation Powers Endanger Vulnerable Participants (Schedule 1,

Concern 9: The Treatment Requirement Penalises Those Unable to Access Treatment (Schedule 1,

Introduction

Legislation Committee regarding the National Disability Insurance Scheme Amendment

Background: The NDIS as a Needs-Based Scheme

Concern 3: The Word ‘Provides’ Captures Persons with No Ongoing

Concern 4: Eligibility Threshold Delegated to Post-Passage

Concern 5: Unscheduled Reassessment Restrictions Entrench

Concern 7: Ministerial Power to Cut Category Budgets Without

Concern 8: Plan Suspension and Revocation Powers Endanger

Concern 9: The Treatment Requirement Penalises Those Unable to

Concern 10: Sustainability and Equity as Planning Factors Introduce

Summary of Concerns

Recommendations

Conclusion

Ian Murray

National President

Australian Lawyers Alliance