Submission 676
Dear Community Affairs Legislation Committee,
Re: National Disability Insurance Scheme Amendment (Securing the NDIS for Future
Generations) Bill 2026
I am writing to you on behalf of the Australian X & Y Spectrum Support. We are the peak national organisation for people born with additional 23rd Chromosomes. We represent over 650 individuals and families living with these genetic conditions. Our three most common diagnostic cohorts include Klinefelter’s Syndrome (1:450), Jacobs Syndrome (1:1,100), and Trisomy X (1:1,000). We work with universities and tier 1 tertiary hospitals including The Royal Children’s Hospital Melbourne, and the Murdoch Children’s Research Institute to improve early diagnosis, reduce disability, improve health outcomes and support our community to reach their full potential.
Our genetic conditions present with significant neuromotor difficulties (80%), significant muscle weakness (up to 90% - in a male specific condition), musculoskeletal issues (80%), speech and language disorders (60-80%) and in some cases intellectual disability (10%-25%). Approximately 80% have a specific learning disorder, and about half have autism (50%), though many do not identify with this label as the other symptoms are more substantial to their lives. However, research shows when they have Autism it is more likely to be more severe.
Several AXYS members have more severe and profound musculoskeletal and neuromotor difficulties requiring mobility aids and medically-prescribed texture-modified diets, due to swallowing difficulties or insufficient strength to chew (dysphagia).
Australian X & Y Spectrum is also a member of a consortium of organisations that provides systemic advocacy for people with Down Syndrome and similar Chromosomal Variations. This consortium is recognised by the Australian Government as a Disability Representative Organisation – Down Syndrome Australia.
Ministerial Statements and Diagnosis-Based Eligibility
The Explanatory Memorandum states:
“There have been unintended consequences in the implementation of these design parameters. These have included an over-reliance on access lists which are based on diagnosis rather than impairment, inequitable and inconsistent planning outcomes for participants, and market related shortcomings, non-compliance and fraudulent activities. This has contributed to significant growth in overall expenditure, well beyond a sustainable level for demand-driven social services.”
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Submission 676
AXYS wishes to raise a significant concern regarding the use of this rationale to justify amendments to the NDIS Act.
AXYS agrees that NDIS eligibility should not be determined by diagnosis-based access lists. However, this principle is not a new development arising from recent court decisions. Rather, it has been the law for more than a decade.
Three successive Federal Court decisions have confirmed that the NDIS access criteria require assessment of impairments and their functional consequences, rather than diagnoses or medical labels. The courts have consistently held that eligibility must be determined through a detailed functional assessment of a person’s impairments and resulting reduction in functional capacity.
Federal Court decisions
The first in 2015, Mulligan v NDIA FCA:
[p51].“The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.”
[p55]. “Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi faceted.”
[p56]. “the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.”
In 2022, NDIA v Davis the Federal Court determined [p118]:
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Submission 676
““the important point to clarify is that the focus about which the Tribunal instructed itself at [32]-[33] was absolutely correct. That is the point I sought to make in
Mulligan.“”
Davis and NDIA, 2022 AAT decision at [p32-33]:
p32 “it is not necessary for the decision-maker to make findings about or to identify the condition or conditions that the person has, in order to reach its conclusions about whether the person has one or more impairments which involve the loss of, or damage to, their physical, sensory or mental function”.
P33. “the Tribunal does not consider it necessary or helpful to [identify] which “conditions” Ms Davis has, or those which should be taken into consideration, when deciding whether Ms Davis meets the criterion under s 24(1)(a) of the NDIS Act. As addressed in Mulligan, the focus is to remain on the person’s “impairments” and that is what the Tribunal will do”
In 2025, after recent amendments came into effect the Federal Court in NDIA v Lampard again ruled [p19-29] diagnosis-based eligibility is not what the NDIS Act requires.
p23: “As the most specific descriptor, an “impairment” generally involves the loss of, or damage to, a physical, sensory or mental function. In the context of the NDIS, the term “disability” is used as a broader descriptor for the effect of a person’s impairments on that person’s ability to participate in aspects of their personal and community life. In that way, a person’s disability arises due to the impairments they experience, with this causal relationship being reflected in the Guidelines”
p26 “A close reading of the AAT’s reasons supports the Agency’s position in that the AAT used the term “condition” as a kind of label or diagnosis to refer to the conditions of IBS and HPV. Used in that way, a condition may involve an impairment, which may then result in a disability, but not necessarily in all cases. Compared to a more specific concept like “impairment”, “condition” is a looser term which undesirably leads to greater uncertainty in the context of the NDIS. For example, while health conditions commonly involve impairments, that will not always be the case, as recognised in the Guidelines extracted above. The relationship between impairments and conditions is also not linear, in that two people living with the same condition may experience very different impairments, or the same impairment but at differing levels. A person may also experience an impairment that is caused by more than one condition.”
p27: “It follows that maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person’s level of function.
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Submission 676
While those terms may be used somewhat interchangeably to refer to the same thing in colloquial and everyday settings, care must be taken in this context to conduct a “detailed functional assessment” with “a relatively high degree of precision”: Mulligan at [55]-[56]. That assessment is only possible if the decision-maker directs their attention to a specific impairment, rather than a broader health condition or a person’s disability more generally. Assessing the access criteria by reference to anything other than an impairment carries a real risk of error as it diverges from the approach required by the statute.“
p28: “Turning back to the statute, s 24(1)(a) therefore requires, as a starting point, the identification of one or more intellectual, cognitive, neurological, sensory or physical impairments experienced by the prospective participant. With that identification in hand, the requirements in s 24(1)(b)-(d) require an evaluation of:
(a) the permanency, or likely permanency, of any identified impairment(s): paragraph (b);
(b) whether any identified impairment(s) results in substantially reduced functional capacity to undertake one or more of the six types of activity in paragraph (c); and
(c) whether any identified impairment(s) affects the capacity for social and economic participation: paragraph (d).“
p29: “It follows that a failure to maintain a proper distinction between a disability or a condition and an impairment for the purposes of s 24(1)(a) can easily have adverse flow on effects on the assessment process required by each of s 24(1)(b)-(d) by misdirecting the decision-maker’s attention away from the statutory task.”
Minister Butler’s assertion during the National Press Club that the Federal Court has failed Australia by making decisions that prevent reducing costs measures, ignores that for 11 years the Federal Court has ruled that the NDIA have been assessing access and support needs unlawfully.
Whether a person has an orphan disease, or a Syndrome Without a Name (SWAN), one diagnosis, or 16; the NDIA have always been required to assess impairments.
For someone with one diagnosis there is one diagnosis which could cause one or more impairments. For someone with more than one diagnosis, it is the cumulative impact of all of the “permanent” symptoms under that impairment category that should be considered collectively. That is what the court found in Mulligan [55-56].
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Submission 676
For 11 years the Federal Court has repeatedly determined that diagnosis-based eligibility is unlawful. The greatest immediate saving to the Scheme could be achieved by enforcing these decisions now. To suggest that legislative amendment is required is misleading. Why is the Minister stating eligibility processes cannot be changed until 2028 and are contingent on these legislative changes?
AXYS submits that the Committee should carefully examine whether the proposed amendments are necessary to address the issues identified by Government, or whether those issues could be addressed through proper application of the law as it has already been interpreted by the Federal Court.
The Federal Court of Australia and the Administrative Review Tribunal exist to ensure that government decision-makers act according to the law enacted by Parliament and that all Australians are treated impartially and consistently under that law. In the decisions discussed above, those institutions have not rewritten the NDIS Act or expanded eligibility beyond Parliament’s intent. Rather, they have performed their constitutional and statutory functions by reviewing government decisions against the legislation as enacted. AXYS is concerned that the rationale advanced for these amendments risks characterising lawful judicial interpretation and independent merits review as a problem requiring legislative correction, when the underlying issue may instead be the continued failure to apply the existing law in the manner consistently required by the courts.
Disability Discrimination and Consultation Process
AXYS is concerned that the consultation process surrounding this Bill has not provided people with disability, their families, representative organisations, and professional advisers with a reasonable opportunity to engage with the proposed reforms.
The Explanatory Statement and associated materials comprise hundreds of pages of complex legislative and policy content. The consultation period has been insufficient to allow meaningful review, legal analysis, and community consultation regarding provisions that may substantially alter participant rights and access to supports.
Given the significance of the proposed amendments, AXYS submits that Parliament should ensure that people with disability are afforded a genuine opportunity to understand and comment upon the proposed changes before legislative action is taken.
Failure to provide adequate consultation risks indirect discrimination against people with disability by limiting their capacity to participate effectively in decisions that directly affect their rights and access to supports.
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Submission 676
Delegation of Power and Rule-Making Authority
AXYS is concerned by provisions that would further expand the role of delegated legislation and increase Ministerial authority in relation to key aspects of the NDIS.
The NDIS was established as a statutory entitlement scheme with significant safeguards, including merits review and judicial oversight. AXYS is concerned that the proposed amendments shift important matters from primary legislation into delegated legislation and administrative decision-making.
Such changes risk reducing parliamentary scrutiny and creating uncertainty for participants regarding their rights and entitlements.
AXYS notes that the High Court has recognised constitutional limits on the delegation of
legislative power. In Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan
(1931), Dixon J observed:
The High Court1 explicitly warned against blanket delegation,
“The scope and extent of the power of regulation-making conferred will, of course, be very important circumstances. The greater the extent of law-making power conferred, the less likely is it that the enactment will be a law with respect to any subject matter assigned to the Commonwealth Parliament.”
AXYS is concerned that the Bill increasingly relies upon delegated legislation to determine matters that directly affect participant eligibility, support entitlements, permanency requirements, and the scope of NDIS supports.
While Parliament retains the formal ability to amend or repeal delegated powers, Dixon J further cautioned:
“The fact that Parliament can repeal or amend legislation conferring legislative power will not be a relevant matter because parliamentary power of repeal or amendment applies equally to all enactments.”
These observations remain relevant where Parliament is asked to confer broad discretionary authority while providing limited legislative guidance as to how that authority should be exercised.
AXYS submits that matters affecting access to the NDIS, participant eligibility, support budgets, reassessment rights, and the definition of NDIS supports should remain primarily
1 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan Informant, HCA, 1931
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Submission 676
within legislation enacted by Parliament rather than being left to future rules or administrative instruments.
The Committee should carefully consider whether the proposed framework provides sufficient parliamentary oversight, legal certainty, and protection against arbitrary decision making. In a scheme that directly affects the rights, independence, and daily lives of hundreds of thousands of Australians with disability, including for some Australian citizens life threatening disabilities, fundamental eligibility and support criteria should be determined by Parliament itself rather than by future executive action.
Support Determinations and Partial Funding of Necessary Supports
AXYS is deeply concerned by proposed section 34A and the accompanying Explanatory Memorandum.
The Explanatory Memorandum states:
“Proposed new subsection 34A(4) provides that a support determination does not have the effect of altering the text of a plan. This makes it clear that the actual decision of the CEO is not being changed – all that is being changed is the amount of funding available to a participant in relation to a specified group of supports.”
The Explanatory Memorandum further states:
“This makes it clear that limitations can be put on the funding available to a participant, even if that results in partial funding of a support.”
AXYS submits that this provision fundamentally alters the nature of participant plans and undermines the integrity of the support needs assessment process.
Under the proposed framework, the CEO may determine that a support is required by a participant and include that support within the participant’s plan. However, a subsequent support determination may reduce the funding available to such an extent that the participant cannot actually obtain that support.
In practical terms, the legislation appears to create a distinction between:
- Supports the Agency has determined are necessary; and
- Supports the Agency is willing to fund. AXYS is concerned that this distinction is incompatible with the principles upon which the NDIS was established.
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Submission 676
Safety and Risk Implications
Many participants rely upon supports that are not discretionary.
For participants with severe intellectual disability, significant mobility impairments, complex communication needs, behavioural support requirements, or swallowing disorders, supports are often essential to health, safety, and participation.
The consequences of partial funding may include:
- Inability to safely access the community;
- Increased risk of injury or hospitalisation;
- Increased risk of choking or aspiration for participants with dysphagia;
- Increased pressure on family carers;
- Loss of education, employment, or community participation opportunities;
- Increased reliance on emergency health services; and
- In the most serious circumstances, increased risk of serious harm or death. The Explanatory Memorandum explicitly acknowledges that support determinations may operate even where funding is insufficient to meet the full cost of supports previously determined to be necessary.
AXYS is concerned that participants may be left holding plans that recognise their support needs while simultaneously denying sufficient funding to meet those needs.
Administrative Law Concerns
The proposed provision also raises significant concerns regarding transparency and accountability.
The Explanatory Memorandum states that the support determination does not alter the participant’s plan and does not alter the CEO’s underlying decision regarding support needs.
If the Agency has already determined that a support is required, AXYS questions how it can be consistent with the objects of the NDIS to subsequently restrict funding so that the support cannot be obtained.
This risks creating a system in which participants are assessed as requiring supports but are denied the practical means to access them.
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Submission 676
Recommendation
AXYS recommends that proposed section 34A be amended to ensure that support determinations cannot reduce funding below the level required to acquire supports that have been determined to be necessary for a participant, particularly where those supports are required to maintain the participant’s safety, health, or ability to participate in daily life.
AXYS is concerned that the proposed framework would permit broad funding restrictions to be applied to categories of supports without adequate consideration of the individual circumstances of participants who rely upon those supports.
A participant’s need for support arises from the interaction between their disability and their individual circumstances. Consequently, supports that may appear discretionary for one participant may be essential for another.
A blanket approach to funding reductions risks disproportionately disadvantaging participants with complex disabilities, high-support needs, communication impairments, swallowing disorders, intellectual disability, behavioural support needs, or significant mobility impairments.
AXYS submits that any support determination should be required to consider the impact on participants whose safety or wellbeing depends upon continued access to particular supports. Parliament should ensure that funding determinations cannot operate in a manner that effectively deprives participants of supports that have already been assessed as necessary.
Failure to account for individual disability-related needs may create significant risks of both direct and indirect disability discrimination by treating participants with substantially different functional needs as though they are similarly situated. Such an approach would be inconsistent with the principles of individualised assessment, reasonable accommodation, and equal participation that underpin both the NDIS and the Disability Discrimination Act 1992.
Accordingly, AXYS recommends that the Bill be amended to require that support determinations preserve sufficient funding for participants to obtain supports that have been assessed as necessary, particularly where those supports are required to prevent foreseeable risks of injury, deterioration, abuse, neglect, hospitalisation, or death.
Restrictions on Plan Reassessment and Agency Error
AXYS is concerned that the proposed amendments may prevent participants from seeking reassessment of their plans where the Agency has made an incorrect decision and the participant’s circumstances have not otherwise changed.
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Submission 676
Administrative decision-making is not infallible. Participants require meaningful mechanisms to challenge decisions that fail to properly assess their disability-related support needs.
Preventing reconsideration merely because a participant’s circumstances have not changed risks entrenching administrative errors and undermining confidence in the Scheme.
It is inconsistent with principles of good administration and procedural fairness to deny reassessment where the original decision may have been incorrect.
Case Example 1
AXYS is aware of a case involving a 10-year-old child with a permanent physical impairment arising from his genetic condition resulting in significant mobility impairment.
The child cannot walk independently and requires parents to transport him using a pram or similar mobility support. The child’s paediatrician has confirmed that the impairment is permanent results in substantially reduced functional capacity.
Despite this, the family has been informed that certain supports relating to the child’s physical impairment cannot be funded, but only his Autism-related supports can be.
Under the proposed framework, the family is concerned that they may be unable to seek reassessment unless a further ‘change’ in circumstances occurs.
Case Example 2
AXYS is aware of a participant with severe oropharyngeal dysphagia whose condition prevents participation in employment and tertiary education.
The participant’s insurer requires engagement in return-to-work activities. However, the participant requires NDIS supports before they can safely attend university. The participant has reportedly been informed that evidence of enrolment is required before the NDIA will consider additional supports, while the university requires the supports to be in place before the participant can apply for enrolment.
This creates a circular barrier that prevents the participant from accessing both education and the supports necessary to pursue education.
Further, AXYS has reviewed correspondence in which the Agency acknowledged that this participant’s disability and support requirements were “extremely complex” and that standard assessment timeframes were insufficient to appropriately determine support needs.
The participant has been placed on two consecutive “emergency plans” while the Agency undertook further review of the participant’s circumstances and support requirements. AXYS has participated in discussions regarding these arrangements and understands that Agency
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Submission 676
representatives acknowledged that the emergency plans were intended as interim measures to provide immediate support while a comprehensive assessment was undertaken, rather than being suitable for the full duration of the plan period.
Importantly, the participant’s disability-related support needs are largely stable and have not materially changed over time. The issue is not that the participant’s condition has deteriorated or improved, but rather that the participant’s support requirements have not yet been fully and accurately assessed.
The participant’s needs are stable, but stability does not mean those needs have been correctly assessed or adequately funded.
This case demonstrates that a participant may require reassessment even where there has been no change in circumstances. The purpose of reassessment may be to correct an incomplete understanding of support needs, resolve complex issues, or address deficiencies in earlier decisions.
Further, while the participant’s condition is stable, the consequences of inadequate support are not benign. Undersupport creates significant risks to the participant’s health, safety, educational participation, and future employment opportunities.
AXYS is concerned that legislative restrictions linking reassessment to a change in circumstances may disproportionately disadvantage participants with stable but complex disabilities, particularly where those participants continue to experience unmet support needs arising from previous deficient assessment or planning decisions.
Despite these acknowledgements, the participant continues to experience significant barriers in accessing supports required for education, participation and future employment opportunities.
AXYS submits that this example illustrates why participants must retain access to effective review and reassessment mechanisms. Where the Agency itself recognises that a participant’s circumstances are unusually complex, legislative restrictions on reassessment risk preventing participants from obtaining decisions that accurately reflect their actual support needs.
This case demonstrates that the absence of a “change in circumstances” does not necessarily mean that a participant’s support needs have been correctly assessed. In some cases, the relevant issue is not a change in the participant’s condition, but the need for the Agency to complete a proper assessment of needs that were not fully understood or addressed in the original decision.
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Submission 676
Innovation and Effective Supports
AXYS is concerned by provisions that may permit the Agency to determine that supports are not NDIS supports even where evidence demonstrates they are beneficial for a participant.
The objects and principles of the NDIS emphasise innovation, independence, social and economic participation, and the pursuit of improved outcomes for people with disability.
Innovation necessarily involves the development of new approaches, emerging interventions, and individualised supports that may not fit neatly within existing categories.
AXYS is concerned that the Bill will unintentionally discourage innovation by creating broad discretion to exclude supports that are effective for individual participants.
The Committee should ensure that the legislative framework remains capable of supporting evidence-based innovation and individualised approaches to disability support. The discretion to exclude supports is arbitrary, rather than determined to be better value.
Additionally, the Explanatory Statement’s discussion of hyperbaric oxygen therapy appears to focus on an extreme example to induce anchoring bias, of a support that would ordinarily fall outside NDIS responsibility because it constitutes medical treatment. This is true for several of the examples provided in the explanatory memorandum, which the Bill aims to prevent. These have already been captured by section 10 and therefore these examples must be given full scrutiny.
AXYS is concerned that reliance on such example’s risks distracting from the broader question of how innovative disability supports should be assessed, within the context of actual NDIS Supports identified in Schedule 1 of the Support Lists.
Research in areas such as developmental coordination disorder and cerebral palsy2, and other neuromotor conditions increasingly supports early intervention, tailored activity-based programs, and individualised approaches to motor learning3. Legislative changes should not inadvertently prevent participants from accessing supports that reflect contemporary evidence and emerging best practice, which will lead to deliver increased scheme sustainability.
2 Damiano, D.L. (2021), Early identification and intervention in developmental coordination disorder: lessons for and from cerebral palsy. Dev Med Child Neurol, 63: 630-630. https://doi.org/10.1111/dmcn.14829 3 Blank, R., Barnett, A.L., Cairney, J., Green, D., Kirby, A., Polatajko, H., Rosenblum, S., Smits-Engelsman, B., Sugden, D., Wilson, P. and Vinçon, S. (2019), International clinical practice recommendations on the definition, diagnosis, assessment, intervention, and psychosocial aspects of developmental coordination disorder. Dev Med Child Neurol, 61: 242-285. https://doi.org/10.1111/dmcn.14132
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Submission 676
Appropriate Treatment, Permanency and Intersex Safeguards
Concerns regarding “all appropriate treatment” and how this is defined in s25.
AXYS is concerned by the proposed requirement that a person must have undertaken “all appropriate treatment” before an impairment can be regarded as permanent for the purposes of NDIS access.
Section 25A defines appropriate treatment as treatment that is evidence-based, can reliably be expected to materially improve, reverse or alleviate the impact of the impairment, and is regularly undertaken in Australia. Importantly, subsection 25A(2) provides that treatment may be considered appropriate regardless of whether the person’s individual circumstances restrict access to that treatment.
AXYS is concerned that this wording creates uncertainty for individuals who are legally, clinically, or ethically unable to access particular treatments.
Interaction with Intersex Safeguard Legislation
Victoria and the Australian Capital Territory have enacted legislation that restricts certain medical interventions affecting the sex characteristics of protected individuals, including some intersex persons.
Many people with variations in sex chromosome patterns are recognised as having intersex status under the Sex Discrimination Act 1984. In some circumstances, treatments that alter sex characteristics may be restricted by law, deferred until an individual reaches an appropriate age, or otherwise unavailable because of statutory safeguards designed to protect bodily autonomy.
AXYS is concerned that, under the proposed wording, a treatment could be considered “appropriate treatment” for NDIS purposes even where the individual is legally prohibited from accessing that treatment.
This raises the possibility that some intersex participants could be found not to have undertaken all appropriate treatment despite being unable to lawfully access the treatment in question.
Children and Age-Based Restrictions
AXYS is particularly concerned about children whose disabilities are identifiable in early childhood but for whom certain medical interventions cannot appropriately commence until adolescence.
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Submission 676
In our cohort’s genetic and developmental conditions, symptoms affecting coordination, muscle development, motor learning, balance, and participation are present from an early age. Clinical literature notes that:
“As the complexity of the motor action increases, difficulties in motor action planning become more evident. The association of poor coordination and motor slowness, together with a reduced muscle mass and elongation of the limbs, results in a poor athletic ability, more evident during adolescence.”
This literature does not suggest that the impairment begins in adolescence. Rather, it demonstrates that the impairment is already present during childhood and that the functional consequences become more significant over time.
AXYS is concerned that the proposed section 25A may create a situation where a child is denied access to disability supports because a future treatment option exists, despite that treatment being clinically inappropriate or unavailable during childhood. In such circumstances, the child may be prevented from accessing supports during critical developmental years, notwithstanding evidence that early intervention and active support produce better outcomes than “wait and see” approaches.
Even where treatment later becomes available during adolescence, the participant will continue to experience lifelong disability and ongoing support needs. The existence of a treatment that may partially alleviate some symptoms should not prevent recognition of a permanent impairment during childhood, particularly where the treatment cannot presently be undertaken and where delayed access to supports may result in poorer long-term outcomes.
Existing Agency Practice
AXYS members have reported instances where the Agency has suggested medical interventions as alternatives to disability supports.
One reported example involved a teenager with intellectual disability requiring assistance with personal care. The family was informed that a circumcision should be considered to reduce support needs rather than funding ongoing assistance with showering and personal care.
While AXYS acknowledges that individual cases may involve complex facts, such examples demonstrate the need for clear statutory safeguards to ensure that participants are not effectively compelled to undergo medical interventions in order to access disability supports.
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Submission 676
Constitutional and Legal Uncertainty
AXYS seeks clarification regarding the interaction between the proposed provisions and State and Territory legislation that restricts particular medical interventions.
While the NDIS Act does not compel a person to undergo treatment, the practical effect of denying access to the Scheme because a person has not undergone a treatment that they are legally unable to access raises significant questions regarding the operation of State and Territory safeguards.
The Committee should seek independent legal advice regarding:
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Whether treatments prohibited or restricted by State or Territory law may nevertheless constitute “appropriate treatment” for the purposes of section 25A;
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Whether age-based restrictions on treatment access affect the operation of the permanency provisions;
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Whether the proposed provisions create indirect discrimination risks for intersex individuals and other protected groups; and
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Whether any constitutional issues arise from the interaction between Commonwealth access criteria and State and Territory safeguard legislation, or provision of Health services within that State or Territory.
Recommendation
AXYS acknowledges the importance of ensuring the long-term sustainability of the National Disability Insurance Scheme and supports measures that improve consistency, accountability, and participant outcomes.
However, AXYS is concerned that several provisions of the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 risk reducing participant protections, increasing executive discretion, restricting access to review mechanisms, and creating uncertainty regarding permanency, treatment requirements, and access to necessary supports.
AXYS submits that the Committee should carefully scrutinise whether the proposed amendments are necessary to achieve the stated policy objectives, particularly where those objectives may be capable of being achieved through improved administration, compliance activities, enforcement action, or proper application of the law as it has already been interpreted by the Federal Court.
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Submission 676
Accordingly, AXYS recommends that the Committee:
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Seek independent legal advice from the Australian Government Solicitor regarding the constitutional, administrative law, and discrimination implications of the proposed amendments.
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Reconsider provisions that transfer significant decision-making authority from Parliament to delegated legislation, Ministerial determinations, or Agency discretion.
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Amend proposed section 34A to ensure that support determinations cannot reduce funding below the level necessary to acquire supports that have been assessed as necessary, particularly where those supports are required to maintain participant safety, health, or participation in workforce or education.
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Preserve meaningful review and reassessment rights, including where a participant’s circumstances are stable, but their support needs have not been fully or accurately assessed.
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Ensure that participants are not excluded from the NDIS because they have not undertaken treatments that are legally unavailable, clinically inappropriate, unavailable due to age-based restrictions, or inaccessible due to statutory safeguards.
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Clarify that the existence of a future treatment option does not prevent recognition of a permanent impairment where current peer-reviewed literature demonstrates ongoing disability-related support needs.
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Ensure that the legislative framework continues to support evidence-based innovation and individualised disability supports.
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Require the Government to clearly identify the evidence supporting each significant amendment and explain why less restrictive alternatives would be insufficient, such as changing the definition of “remedy” in current delegated legislation.
AXYS respectfully submits that the Bill should not proceed in its current form without substantial amendment and further scrutiny by Parliament, and with adequate community consultation.
The NDIS was established to provide Australians with disability the supports necessary to have an ordinary life. Any reform intended to secure the future of the Scheme must preserve that fundamental purpose. A scheme that cannot achieve this fundamental principle will never be financially sustainable.
Yours sincerely,
AXYS team
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