Human rights limitations in NDIS Amendment Bill (Public interest report)

Submission 82 - Supplementary Submission

Supplementary submission on the NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026

10 July 2026

Submission 82 - Supplementary Submission

About the Justice and Equity Centre

The Justice and Equity Centre stands for a society that is fair and free from discrimination and disadvantage. Established in 1982 as the Public Interest Advocacy Centre (PIAC), we use the law and policy advocacy to challenge injustice and inequality. We do this through:

• legal advice and representation, specialising in test cases and strategic casework;
• research, analysis and policy development; and
• advocacy for systems change to deliver social justice. We collaborate and partner in our work with people and communities who are experiencing marginalisation and disadvantage and focus on finding practical solutions. We work across five focus areas:

Disability rights: challenging discrimination and making the NDIS fairer to ensure people with disability can participate equally in economic, social, cultural and political life.

Justice for First Nations people: challenging the systems that are causing ongoing harm to First Nations people, including through reforming the child protection system, tackling discriminatory policing and supporting truth-telling.

Homelessness: reducing homelessness and defending the rights of people experiencing homelessness through the Homeless Persons’ Legal Service and StreetCare’s lived experience advocacy.

Civil rights: defending the rights of people in prisons and detention, including asylum seekers, modernising legal protection against discrimination, raising the age of criminal responsibility to 14, advancing LGBTIQA+ equality and advocating for open and accountable government.

Energy and water justice: working for affordable and sustainable energy and water and promoting a just transition to a zero-carbon energy system.

Contact

Mitchell Skipsey and Sheetal Balakrishnan

The Justice and Equity Centre

Gadigal Country

Level 5, 175 Liverpool St

Sydney NSW 2000

T: +61 2 8898 6500 E:

Website: www.jec.org.au

The Justice and Equity Centre acknowledges and pays respects to the Gadigal as the Traditional Owners of the land on which our office stands.

Submission 82 - Supplementary Submission

Contents

1. Introduction ………………………………………………………………………………………….. 1
2. Committee’s Interim Report …………………………………………………………………… 1
3. Comments on amendments made to the Bill ………………………………………….. 3 3.1 Permanence and all appropriate treatment ………………………………………………….. 3

3.2 Amendments limit the application of support determinations ………………………….. 5

3.3 Amendments improve transparency of automation ……………………………………….. 6

3.4 Amendments clarify when a participant is not contactable ……………………………… 7

4. Comments on amendments proposed but not agreed to ………………………… 8 4.1 Foundational supports ………………………………………………………………………………. 8

4.2 Plan reassessment rights ………………………………………………………………………….. 8

4.3 Effective and beneficial supports ………………………………………………………………… 9

5. Human rights scrutiny of the Bill remains incomplete ……………………………. 9 © Justice and Equity Centre, 2026. Permission is required to produce summaries or other derivative works, including through use of AI.

Submission 82 - Supplementary Submission

1. Introduction The Justice and Equity Centre (‘JEC’) welcomes the opportunity to make this supplementary submission to the inquiry by the Senate Standing Committee on Community Affairs into the

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

Bill 2026 (‘Bill’).

This supplementary submission is intended to be read alongside our previous submission dated 1 June 2026 (‘June Submission’) and the recommendations made in that submission. This includes Recommendation 2 from our June Submission that the Bill should not be passed in its current form, notwithstanding the amendments agreed to date. While amendments have addressed some discrete issues, they do not resolve the Bill’s fundamental defects. In our assessment, key measures in the Bill are conceptually flawed, unworkable in practice, and likely to result in unfair outcomes for people with disability.

This supplementary submission considers developments since our June Submission that reinforce the need for further scrutiny and amendment of the Bill. In particular, we:

• address areas identified in the Committee’s Interim Report of 23 June 2026 as requiring additional safeguards;1

• assess recent amendments agreed to or proposed in response to concerns raised during the inquiry; and

• examine the significant human rights issues that remain the subject of further consideration by the Parliamentary Joint Committee on Human Rights (‘PJCHR’) in its report of 12 June 2026.2

2. Committee’s Interim Report Many of the concerns identified in our June Submission are reflected in the Committee’s observations, as well as the additional comments by Coalition Senators, and the dissenting reports of Australian Greens and Senator David Pocock. Across this spectrum of parliamentary views, there are consistent calls for stronger safeguards regarding a number of proposed changes.

The Committee’s Interim Report noted and acknowledged a number of concerns raised, and recommended the Explanatory Memorandum be amended to provide further information in relation to specific elements of the Bill.3 This follows the Committee’s observation that incomplete information regarding aspects of the Bill has contributed to confusion about the Bill’s impact.4

1 Senate Community Affairs Legislation Committee, Parliament of Australia, National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (Interim Report, June 2026) (‘Committee Interim Report’).

2 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report

(Report 7 of 2026, 12 June 2026) <https://www.aph.gov.au/ /media/Committees/pjchr_ctte/reports/2026/Report_7_of_2026/report/Report_7_of_2026.pdf> (‘PJCHR Report’). 3 Committee Interim Report, Recommendation 2. 4 Committee Interim Report [2.2].

Submission 82 - Supplementary Submission

While we agree that additional information may assist, we highlight the substantial and legitimate concerns raised by many members of the disability community, legal organisations and other stakeholders, which are based on careful analysis of the text of the Bill by legal and policy experts, and participants’ experiences of how similar provisions and decision-making processes operate in practice. Many of these cannot be addressed by information alone and indicate the Bill requires further scrutiny.

Particular examples include the potential for the proposed test for permanence to inappropriately pressure individuals to pursue treatment pathways, the risk support determinations could compromise participants’ safety, and the need for safeguards around matters such as Ministerial determinations and automated decision making.5 We agree with the Committee that these are among the areas of particular concern with the Bill.

However, we stress that amendment of the Explanatory Memorandum does not sufficiently address these issues. While an Explanatory Memorandum may assist in the interpretation of relevant statutory provisions, it cannot alter the provisions of the legislation itself. For the reasons set out in detail in our June Submission, the issues identified by the Committee stem from the proposed statutory text, the actions it would require and the powers it would confer.

The Committee’s recommendations in the Interim Report are insufficient to protect people with disability from these foreseeable adverse consequences.

We note many of these same concerns were identified throughout each of the Coalition Senators’ Additional Comments and the Dissenting Reports by the Australian Greens and Senator David Pocock.6 Where all Committee Senators appear to agree on many of the issues with the Bill, we urge the Committee draw on the recommendations in our June Submission, and the many other informed proposals by other submitters to the Inquiry, to propose concrete improvements to the Bill.

We further note Senator Pocock expressed concern that excluding people from the NDIS on the basis of an alternative prescribed service system ‘has received very little scrutiny, but could represent one of the biggest step-changes to NDIS policy’.7 The Senator’s concern appears reflected in the limited discussion of these measures elsewhere in the Interim Report. His view mirrors our submission that a change of this magnitude requires proper accountability and

5 Ibid. 6 Regarding impacts of the proposed permanence test on individual autonomy, see Dissenting Report of Australian Greens, Recommendation 6; Dissenting Report of Senator David Pocock [1.53]-[1.61].

Regarding the risks posed by support determinations, see Additional Comments of Coalition Senators [1.47]; Dissenting Report of Australian Greens [1.27]-[1.30] and Recommendation 5; Dissenting Report of Senator David Pocock [1.77]-[1.79] and Recommendations 2 and 3.

Regarding protections around automated decision-making, see Dissenting Report of Australian Greens [1.49] [1.50] and Recommendation 10; Dissenting Report of Senator David Pocock [1.22]-[1.23].

7 Committee Interim Report, Dissenting Report of Senator David Pocock [1.37]-[1.41].

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Submission 82 - Supplementary Submission

Parliamentary oversight. Rather than being implemented through Category A rules, this type of change should be made through amendments to the NDIS Act itself.8

3. Comments on amendments made to the Bill Several amendments have been made to the Bill by Parliament since the time of our June Submission and some of these matters were raised in our recommendations. For the reasons discussed below, we do not consider these amendments mean this Bill is now safe or appropriate, and maintain our recommendations from the June Submission.

3.1 Permanence and all appropriate treatment

As we said in our June Submission, Schedule 1, Part 8 of the Bill introduces a more restrictive approach to determining whether impairments are ‘permanent’ – these changes significantly raise the access threshold and risk producing unjust and harsh outcomes.

While amendments noted below reduce certain risks, they do not address all the uncertainty or problematic legal operation of the proposed provisions; nor do they resolve our underlying concerns that the Bill continues to condition access to the NDIS on the exhaustion of ‘all appropriate treatment’.

For the reasons set out in our June Submission, we maintain this Part should be removed from the Bill. The concept of permanence should not depend on exhausting all appropriate treatment, particularly where doing so risks excluding people with lifelong disabilities despite the enduring nature of their impairments.

3.1.1 Amendments remove the risk of requiring ‘inappropriate’ treatment

We welcome the changes made by amendment sheet ST122 at items 3-6.

As we identified in section 4.2.5 of our June Submission, proposed subsections 24(5)(b) and 25(1B)(b) created a serious risk that the permanence test will be interpreted to require the exhaustion of inappropriate treatment. The Government has acknowledged this concern in its Supplementary Explanatory Memorandum, which states:

Select submissions provided to the Committee as part of its Inquiry have identified that paragraphs 24(5)(b) and 25(1B)(b) may inadvertently require a person to undertake additional treatments even when they have undergone all appropriate treatment.9

The Government’s amendments, which remove proposed subsections 24(5)(b) and 25(1B)(b), respond to this concern.

8 June Submission, Recommendation 6. 9 Supplementary Explanatory Memorandum relating to amendment sheet ST122, 4. Justice and Equity Centre • Second submission on NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026 • 3

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3.1.2 Amendments explain ‘appropriate’ treatment

Item 7 of the amendment sheet moved by the Member for Ryan, Ms Watson-Brown, and agreed to by the Government, appears directed at implementing the stated intention that any treatment should be publicly funded.10 The amendment adds the following Notes to the end of proposed subsection 25A(1):

Note 1: For the purposes of paragraph (c), treatment is regularly undertaken or performed in Australia if public funding is available in respect of the treatment.

Note 2: Appropriate treatment does not include restrictive practices involving seclusion, chemical restraint, mechanical restraint, physical restraint or environmental restraint.

However, Note 1 states that treatment is regularly undertaken or performed in Australia if public funding is available – it does not provide that treatment is regularly undertaken or performed only if public funding is available. As such, Note 1 does not exclude privately funded treatments from being considered appropriate and could have the opposite effect of the stated intention: it could be read as expanding the definition of ‘appropriate treatment’, rather than confining it just to publicly funded treatments. As currently drafted, this proposed Note does not achieve the Government’s apparent stated intent.

Further, while Notes form part of the NDIS Act,11 the safeguards intended by these Notes should instead be incorporated into the substantive text of the Act to provide greater certainty as to their legal effect and impact on decision-making.

In order to implement the stated intent of amendments to proposed subsection 25A(1), the text of the provision should be amended as follows:

• Note 1 to proposed subsection 25A(1) should be amended to state: For the purposes of paragraph (c), treatment is regularly undertaken or performed in Australia only if public funding is available in respect of the treatment; and

• Notes 1 and 2 should be elevated into the substantive text of subsection 25A(1). Even if the Notes are amended and incorporated into the text of the NDIS Act, this amendment would not address the Bill’s requirement that decision-makers disregard a person’s financial and geographical circumstances when determining whether treatment is available. Public funding for a treatment does not guarantee practical access. As stated in our June Submission, many people with disability, particularly those living in regional and remote areas, face significant barriers in

10 Committee Interim Report [2.64]; Australian Government, Changes to the NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026 – Fact Sheet (July 2026) 2 <https://www.health.gov.au/resources/publications/changes-to-the-ndis-amendment-securing-the-ndis-for future-generations-bill-2026-fact-sheet?language=en>. 11 Acts Interpretation Act 1901 (Cth) s 13(1).

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Submission 82 - Supplementary Submission

accessing health services, including long wait lists, transport barriers, limited interpreter availability and a lack of culturally safe services.

The Bill therefore continues to require people be denied access to the NDIS where treatments exist within the public health system but are not realistically available to them in practice.

3.2 Amendments limit the application of support determinations

Item 2 of the amendment sheet moved by the Member for Ryan, Ms Watson-Brown, and agreed to by the Government, introduces welcome constraints on the operation of proposed section 34A. While these address some elements of Recommendation 12 of our June Submission, we maintain the balance of that recommendation is necessary to adequately protect participants, as follows:

Recommendation 12 – Ministerial support determinations and caps need proper consultation, scrutiny and inclusion of safeguards

Proposed ss 34A, 33(2EA) and 33(2EB) should not be enacted. Before any measures that confer Ministerial power to limit supports are considered, there must be meaningful engagement with the disability community and proper scrutiny of proposed limits.

If the provisions are retained, the Bill should be amended to incorporate clear statutory safeguards, including that:

• support determinations (s 34A) and caps (ss 33(2EA) and 33(2EB)) apply only to specified classes of supports, rather than having broad or Scheme-wide application;

• participants whose plans are affected by Scheme-wide changes, including support determinations and caps, can seek variation of their plans where this creates a risk to their safety, health or functional capacity;

• support determinations (s 34A) and caps (ss 33(2EA) and 33(2EB)) be made through the Category A rule process, rather than by Ministerial determination; and

• any support determination (s 34A) or cap (ss 33(2EA) and 33(2EB)) be accompanied by tabled reasons, impact and financial analyses and records of consultation with the disability community, and a minimum 15 sitting day disallowance period before commencement.

As we identified in our June Submission, the Bill should limit support determinations to clearly defined classes of supports. The addition of proposed subsection 34(1A), which would limit support determinations to the two listed groups of supports, responds to our recommendation.

However, while proposed subsection 34A(1C) contemplates the exclusion of subgroups of supports such as employment and disability related health supports, the protection afforded by this amendment is limited. The provision is permissive rather than mandatory, meaning that the NDIS Act would not guarantee the exclusion of those supports – this still leaves considerable

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Submission 82 - Supplementary Submission

discretion to the Minister in deciding whether to exclude supports from the application of a support determination.12

Additionally, although the Note to proposed subsection 34(1C) is inclusive rather than exhaustive, further consideration should be given to whether additional subgroups warrant express reference. This consideration should be informed by close consultation with the disability community to understand how people actually use supports in their daily lives. For example, we have heard the listed subgroups to be excluded would not account for the actual way some participants access supports to travel to/from employment, and so foreshadowed exclusions designed to protect participant employment arrangements may still prevent those participants from getting to and from work.

Further consultation is critical to ensure support determinations do not impede participants’ capacity to maintain employment, health and independence.

Proposed subsection 34A(1D) provides an additional way to specify the participants to whom a support determination would apply. However, we are concerned ‘features of plans’ and/or ‘features of participants’ may not adequately capture the nature and complexity of diverse participant cohorts. In particular, it is unlikely to capture commonalities in the support needs of participants, such as those who need 24/7 continuous support, but where this need may be expressed in different ways in their plans.

The impact of a support determination on participants who need 24/7 continuous support could be disastrous, and those participants need to be excluded. These participants may not have specific features in their plans or other identifiable features to specify in a determination. A more appropriate approach would be to expressly permit classes to be identified by reference to ‘the nature and type of supports provided under a plan’ and/or ‘support needs of participants’.

We therefore consider further amendment is required to:

• elevate exclusions from support determinations from legislative note to provision;
• amend proposed s 34(1C) to compel a determination to specify excluded subgroups; and
• amend proposed s 34(1D) to state: For the purposes of paragraph (1)(b), a class of participants’ plans may be specified by reference to features of plans, features of participants, the nature and type of supports and/or support needs of participants.

3.3 Amendments improve transparency of automation

We welcome item 8 of the amendment sheet moved by the Member for Ryan, Ms Watson-Brown, and agreed to by the Government, which requires publication of proposed standard operating procedure instruments before they are made.

12 The Note does not appear to alter the character of proposed subsection 34A(1C) so as to require the Minister to exempt any particular categories, as that provision is worded so as to make this exemption discretionary.

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Submission 82 - Supplementary Submission

While this improves the original provisions, the amendment does not fully achieve the objective of meaningful transparency and accountability. It is limited to publication of a proposed instrument at least seven days before it is made, and does not provide for consultation, independent scrutiny or any obligation on the National Disability Insurance Agency (‘NDIA’) to respond to concerns raised about the proposed instrument.

This amendment should be strengthened, together with the following additional safeguards in Recommendations 21-22 of our June Submission:

Recommendation 21 – The recommendations made in the submission by the Human Technology Institute about automated decision-making be adopted

The recommendations made by the Human Technology Institute in their submission to this Committee process, concerning the safeguards necessary to implement automated decision making in an appropriate, fair and safe manner, should be adopted by the Committee and implemented by Parliament.

Recommendation 22 – Automated decision-making only be authorised for limited purposes within old framework planning

Proposed s 59C(1)(a) be amended so as to only specify s 33(2E), and not the entirety of s 33.

3.4 Amendments clarify when a participant is not contactable

We welcome the proposed amendments at items 1-2 of amendment sheet ST122 as safeguards defining what attempts must be made to contact a participant prior to applying plan suspension and revocation powers. This addresses Recommendation 17 of our June Submission.

However, the Bill still does not expressly require the NDIA to consider whether a participant’s disability or accessibility needs may explain their failure to respond. As such, there remains a risk that a participant’s support needs or disability-related communication barriers may be misinterpreted as non-engagement.

The amendment also does not address the need to assess whether suspension or revocation is justified. Additional safeguards are necessary to ensure suspension or revocation powers are exercised proportionately and only after the participant’s accessibility needs, individual circumstances and the likely consequences have been properly considered.

We accordingly maintain Recommendation 18 of our June Submission, as follows:

Recommendation 18 – Accessibility needs and risk of harm be considered before plan suspension or revocation

The powers to suspend a participant’s plan or revoke a person’s participant status under proposed s 30(1A) should require the CEO:

• be satisfied the participant’s inability to be contacted is not explained by the participant’s accessibility needs as are known to the NDIA; and

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• should be required to consider whether the suspension or revocation is justified when weighed against any risk of harm to the participant.

4. Comments on amendments proposed but not agreed to A number of amendments proposed by crossbench Members sought to address significant concerns raised by people with disability, Disability Representative Organisations and legal stakeholders, but were not adopted by the Government. In our view, several of these amendments would materially improve the Bill and should be reconsidered by the Committee. These include:

4.1 Foundational supports

We continue to support the amendment proposed by the Member for Kooyong, Dr Monique Ryan, to delay commencement of key provisions until foundational supports are established, funded and operational. It recognises that limiting who can access the NDIS, or constraining funding for supports, can only be fairly implemented if people have access to alternative supports that are available, accessible and adequately funded.

Critically, the Disability Ministers of States and Territories (who will need to establish the ecosystem of disability supports outside the NDIS) have said the changes proposed by the Bill need to align with the development of any potential new foundational supports, beyond Thriving Kids. The State and Territory Ministers rightly foresee the changes in the Bill:

…may result in NDIS access and planning changes outpacing the development and implementation of Foundational Supports. This sequencing risks creating new service gaps, placing preventable pressure on other disability services, universal systems and state-based services. This will exacerbate difficulties people with disability have accessing the services they need.13

We maintain Recommendation 23 of our June Submission, which supported the amendment moved by Dr Monique Ryan to delay commencement of certain proposed changes in the Bill until foundational supports are established, funded and operational.

4.2 Plan reassessment rights

We also support the amendment moved by the Member for Kooyong, Dr Monique Ryan, to permit a plan reassessment where a participant’s plan becomes insufficient to meet their current support needs. The proposed amendment would provide a more practical and participant-centred basis for reassessment, reflecting the reality that support needs change over time without necessarily meeting the Bill’s narrow threshold.

We maintain Recommendation 13 of our June Submission, as follows:

13 State and Territory Disability Ministers, Submission to the Senate Standing Committee Community Affairs

Legislation Committee: National Disability Insurance Scheme Amendment (Securing the NDIS for Future

Generations) Bill 2026 (June 2026, Submission 508) 8.

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Recommendation 13 – Broaden the circumstances in which participants can request plan reassessments

Section 48A(1) be amended as follows:

For the purposes of paragraph 48(2)(b), the conditions are that:

a. the participant’s plan is insufficient to meet their current support needs, including where that insufficiency arises from an error in the underlying supports needs assessment and/or budget-setting process; and

b. the participant’s plan is scheduled for automatic renewal within 45 days or was automatically renewed within the preceding 45 days.

4.3 Effective and beneficial supports

We support the amendment moved by the Member for Indi, Dr Helen Haines, to omit proposed subsections 34(1E) and (1F). As we set out at section 5.2.5 of our June Submission, these provisions would create a hierarchy of evidence that privileges peer-reviewed and generalised research over the lived experience of participants and the evidence of their treating practitioners.

Contrary to the Government’s stated intention to simply elevate factors in the NDIS (Supports for Participants Rules) 2013 (Cth) (‘Supports Rules’) into the NDIS Act, this elevation is selective and includes reframing of those factors. The effect is to make it harder for participants to satisfy the relevant criteria and so get funding for supports. Because of the stark difference between the proposed hierarchy in the Bill and the existing factors for considering ‘effective and beneficial’ in the Supports Rules, we foresee decision-making becoming less participant-focused and more rigid, with real-life consequences for participants.

We maintain Recommendation 10 of our June Submission that proposed subsections 34(1E) and (1F) should be removed from the Bill, as the Supports Rules provide an appropriate structure for the ‘effective and beneficial’ consideration.

5. Human rights scrutiny of the Bill remains incomplete The PJCHR raised substantial concerns regarding the human rights implications of the Bill and expressly sought further information from the Minister to properly assess whether the measures are compatible with human rights. Critically, the Committee observed that, taken together, the proposed amendments are likely to restrict access to the NDIS and reduce the availability of supports for participants, with potential consequences for the human rights, independence and quality of life of people with disability.14 The Committee said:

Australia has a corresponding duty to refrain from taking retrogressive measures, or backwards steps, in relation to the realisation of [social and economic] rights. A retrogressive measure is a type of limitation on an economic or social right. If these

14 PJCHR Report, 8. Justice and Equity Centre • Second submission on NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026 • 9

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measures had the effect of reducing the availability of supports for people with disability, it may constitute a retrogressive measure. The statement of compatibility states that the measures are aimed at preserving the long-term sustainability of the NDIS and this may directly or indirectly limit the range of health-related supports or funding accessed through the NDIS for some individuals. As such, it appears the measures would be retrogressive and thus limit these human rights.15

Importantly, the PJCHR did not conclude these limitations were justified, stating:

Although legitimate objectives have been demonstrated for some aspects of some of the measures, in general the explanatory materials do not sufficiently identify the objectives of each of the measures, making it difficult for the committee to assess whether the objectives are legitimate for the purposes of international human rights law. Questions therefore also arise as to whether the measures are rationally connected to (that is, likely to achieve) these objectives.16

In our view, the failure to clearly identify and justify the objectives of individual measures is a significant deficiency. The Government must demonstrate each measure is rationally connected to an objective and is the least rights-restrictive measure available.

The PJCHR further noted that some measures in the Bill said to implement the NDIS Review do not appear entirely consistent with the approach recommended by the Review itself. We agree with this assessment. Not only does this inconsistency raise concerns about the accuracy of the explanatory materials accompanying the Bill, but it also raises broader questions as to whether the Review justifies and supports the Bill’s measures. The latter is particularly important given the recommendations of the NDIS Review were the product of extensive consultation and evidence gathering over a considerable period, in stark contrast to this Bill.

The Committee should give significant weight to the concerns raised by the PJCHR. The absence of critical information identified by the PJCHR undermines the capacity of Parliament to undertake meaningful scrutiny of the Bill.

At the time of preparing this submission, we understand the Government has provided a response to the PJCHR report, but this response has not been published. Prior to any further public hearings by this Committee, and final consideration of the Bill by Parliament, this response must be made available for public scrutiny and, where appropriate, follow-up questions put to the Government and answered.

The Bill should not proceed until the Committee is satisfied any limitations on rights are clearly justified and accompanied by effective safeguards, such as those recommended by our June Submission and by the Committee’s members previously. Without the additional information sought by the PJCHR, there is a real risk Parliament will be considering legislation with serious human rights issues and consequences for people with disability.

15 PJCHR Report, 14 [footnotes omitted]. 16 PJCHR Report, 2.

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