NDIS changes ‘retrogressive’ and out of step with review, MPs say

Sweeping changes to the NDIS appear “retrogressive” and lack alignment with a landmark independent review to improve the $50bn-a-year scheme, a Labor-led committee has found.

The 57-page scrutiny report from the joint human rights committee, released on Friday, examined the proposed changes under the Albanese government ahead of a separate report due next week by a Senate inquiry.The Labor-chaired committee questioned the human rights implications of winding back access for more than 200,000 participants in the coming years, which could leave many without sufficient disability support.

It comes as the NDIS minister, Mark Butler, doubled down on passing the proposed legislative changes in next June’s sitting period as experts, advocates and providers this week criticised the bill and claimed the Senate inquiry’s short reporting period did not provide enough time to scrutinise the plans.

The committee’s report looked at the government’s proposed changes and how they interact with Australia’s obligations to international human rights law, including the “duty to refrain from taking retrogressive measures, or backwards steps”.

“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,” the report said.

“As such, it appears the measures would be retrogressive and thus limit these human rights.”

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Under the proposed changes, a legal framework to determine who can, and cannot, access the NDIS based on “substantially reduced functional capacity” will be introduced from 2028. The government’s own modelling has shown this will remove about 241,000 people from the scheme by mid-2031, bringing the total number of participants down to 600,000.

The committee’s report said the intent of the overhaul – to ensure the NDIS will be financially sustainable and available for future participants by diverting some to mainstream services – was a legitimate objective.

But it said that objective also assumes mainstream support services are “available and accessible”.

“Questions therefore arise as to whether this is the case and whether the measure would be effective to achieve the stated objective in practice,” the report said.

The committee’s report also added that the measures did not appear to be in line with the findings of the 2023 NDIS review, despite the bill using it as a justification in its explanatory notes.

The Albanese government’s proposals will include a tightening of the definition of permanence by requiring a potential participant to exhaust all available and appropriate treatment before being granted NDIS access.

The report noted the bill did not require accessibility decision-makers to consider a person’s individual circumstances, such as their geography or financial situation.

“It is unclear why, when determining whether treatment is appropriate, regard is not had to a range of factors, including the affordability and accessibility of that treatment for that individual,” the report said.

“As any exceptions would be set out in future rules, it is difficult to assess their potential safeguard value.

“In any case, the NDIS rules are unlikely to be a sufficient safeguard to ensure any limitation is proportionate, having regard to the fact that the measure explicitly excludes consideration of whether a person’s individual circumstances restrict them from accessing treatment.”

The Senate inquiry’s three public hearings featured an array of dissenting voices, who warned the bill would worsen outcomes for people with disabilities.

State and territory disability ministers also claimed they would be unprepared to offer similar support services for the thousands removed from the scheme.

On Thursday, Butler said the proposal was “a very well-developed plan that thought carefully about the way in which we could get the NDIS back on track, secure it for the long term, but very much still with people with disability at its centre”.

“We’re watching [the inquiry] closely. We’re studying the submissions that are being made and once the inquiry delivers its report, we’ll obviously be in a position to consider our response,” he said.

The inquiry’s report is expected to be published on Tuesday 16 June.