Human Rights Commission holds ‘serious concerns’ about Labor’s NDIS laws

Australia’s peak human rights body says it holds serious concerns about Labor’s new laws to govern the National Disability Insurance Scheme, warning they risk compromising the rights of disabled people and must be slowed down.

The Australian Human Rights Commission’s submission to a Senate inquiry, signed by Disability Discrimination Commissioner Rosemary Kayess, sounded the alarm with several elements of the package.

They range from fears about disability reform going backwards after decades of progress, and people being excluded under new eligibility criteria, to the lack of accountability that comes with sweeping ministerial powers and automated decision-making.

Labor’s laws will remove 240,000 people from the scheme from January 2028, according to departmental modelling, as the government seeks to curb growth in the $56 billion scheme and limit access to people with the most severe disabilities.

The government is seeking the Coalition’s support to pass the laws by the end of June, so it can execute plans to cut $38 billion in projected spending within four years as a major budget savings measure. Recent data shows the scheme’s growth rate is picking up speed, adding urgency for Labor.

But Kayess said the bill should not pass until it had been assessed by parliament’s human rights committee and the disability community was more closely consulted.

It comes after the government’s own advisory committee on disability reform privately briefed state and federal ministers last month to caution that the laws would harm thousands of disabled Australians if the process didn’t slow down.

“A two‑week consultation period is wholly inadequate for reforms of this scale, which have significant implications for people’s rights, lives and livelihoods,” the submission said.

“Proceeding without appropriate scrutiny creates a clear risk of adverse and unintended human rights impacts.”

The commission warned the bill could take Australia backward when it came to realising disabled people’s rights to independent living, personal autonomy and community inclusion – something that would contravene the country’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

Disability advocacy groups are also pushing the case that the laws risk breaching recommendations of the disability royal commission because they give the minister sweeping powers to cut funding or therapy hours across entire sections of the scheme, regardless of individuals’ assessed needs.

Kayess said both the bill and Health Minister Mark Butler’s commentary about the changes were placing stronger emphasis on financial considerations than human rights.

“This reinforces an ableist framing of people with disability as a cost pressure to be managed, rather than as people who have rights and who are entitled to equality and participation,” she said.

While Kayess acknowledged that the laws were building on consultations with the disability community through the 2023 NDIS review and other inquiries, she said there was little evidence there had been targeted consultation about the bill’s specific measures.

It said the bill departed from a genuine co-design approach, because the next round of consultation will happen after policy settings in the laws are already settled.

Issues were also raised with the sweeping new ministerial powers that will be introduced under the laws. Butler said he will first use this power to reduce people’s social and community participation budgets to 2023 levels, and reduce therapy from 72 to 68 hours a year.

The commission said there was limited clarity about how such decisions would be made and very few options to review or challenge them, creating a lack of public accountability and compromising people’s ability to access justice.

“The breadth of power means that funding settings could be adjusted over time in response to changing policy, governments, or budget priorities. This creates some uncertainty for participants about the level of support they can expect,” the submission said.

The laws will also restrict who can join the NDIS according to a much narrower definition of “functional capacity”, which will require people to have exhausted all other treatment options before they are considered permanently impaired and eligible to enter the scheme.

This responds to the scheme’s ballooning participation numbers, which have swelled to 775,000 as unforeseen numbers of children and people with autism have joined, compared to initial estimates of about 410,000 participants.

However, Kayess said the new definition would move the NDIS “away from the human rights model of disability toward a narrower, impairment-focused, medical model” that risked undermining decades of disability reform.

Other measures in the bill to standardise service delivery – in part a response to thousands of private providers who have flooded the scheme with little scrutiny – would also limit choice and control, according to Kayess.

At worst, this would “promote or maintain segregation and institutionalisation, rather than supporting inclusion in the community”.

The NDIS bill will be subject to two days of hearings next week, before reporting back to the Senate on June 16.

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