Government Threatens to Dismantle its Own Reforms: the NDIS Bill and Human Rights

Written By Simon Katterl

The following is a brief speech from a forum ‘Lived Experience Leading the Way, the National Psychosocial Disability Roundtable’ on 20 June 2024. The day was coordinated by the National Mental Health Consumer Carer Forum. I was called up late to provide a human rights lens on the reforms. Not wanting to occupy a space as a non-psychosocial disability perspective, but also conscious that there was not an alternative speaker for the forum, I agreed.

Thank you for the opportunity to speak with you all today and to be on a bench with my esteemed colleagues. I acknowledge the traditional owners of the land that we meet on today, the Wurundjeri people of the Kulin Nations, and pay my respects to Elders past and present and any First Nations people here today. I want to recognise and elevate the work currently underway this week by the Yoorook Justice Commission, which has identified the failure of governments to implement cultural rights in mainstream services. I also want to acknowledge what I have learnt from First Nations leaders, including from a hugely important book, Culture is Inclusion, by Scott Avery, that I recommend others engage with.

I am speaking briefly, with three arguments: First, the NDIS review isn’t a step forward; it leaves people with psychosocial disability behind. Second, this is the product of political choices by both governments and providers. Third, that we should mobilise in the short-term, but grapple deeply with the underlying currents that will impact the long-term.

I’ll start in the middle argument – that we’re here in this moment where rights are at risk because of political choices.

The reality is that the NDIS Review was, at least in part, driven by the need to make the NDIS more “sustainable” for treasury. The NDIS is costing more than the government says it can afford. There’s not enough money coming into government, so that it can go out through the NDIS, never mind the actual return on investment of people with a disability being in the workforce.

But this budgetary situation didn’t just happen to governments, they are conditions of their political choosing.

What choices?

The choice to pull out $313 billion from social services through stage 3 tax cuts.

The choice to spend $363 billion on questionable submarines on questionable foreign policy.

The choice to forego $20 billion a year through a super profits tax on the gas industry, or the coice to not properly tax harmful industries like gambling?

These are all political choices. Choices about failing to capture revenue we need for the NDIS, and choices to spend the revenue we have on things other than the NDIS.

And bad choices are a tax on people with disability. In particular, on human rights.

I am by no means an expert on the NDIS, but I understand the foundational pillars that underpin its original design: choice and control.

These concepts are deeply grounded in human rights. As Disability Discrimination Commissioner Rosemary Kayess highlights, ‘human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing.’ Rather than reflect this reality, the NDIS Bill “cherrypicks” human rights for the benefit of treasury and the people it doesn’t want to tax.

The NDIS Bill, does so by seeking to do the following:

  • Failing to legislate participation duties, meaning though the government promises co-design, there is no way to keep them to that promise. This does not reflect Article 4(3) of the CRPD.

  • Narrow the definition of supports to fit a medical model of disability, focused on impairments rather than on a person’s goals and equal participation in society, inconsistent with the social model of disability underpinning the CRPD in article 1.

  • Providing significant powers to the CEO of the NDIS to make rules, with administrative law experts highlighting this leads to real concerns about principles of the rule of law.

  • Emerging distinctions around “classes” of supports which may create tiered approaches to the scheme focused on financial capping rather than realisation of the NDIS’ objectives, and the funnelling of participants into early intervention pathways

  • Moves to potentially screen people who have had a criminal conviction and potentially limiting them from self-managing[1] their packages is a horrendous and callous move, given the harms that send people into prison, the conditions in them, and the barriers to successfully transitioning out of them.[2]

Note: Someone rightfully identified that the human rights of First Nations people should have been included here. I draw your attention to evidence by First Peoples Disability Network to the Senate Community Affairs Committee (that ultimately ignored the views of people with disabilities in recommending the Bill be passed). FPDN identified that the NDIS remains culturally inaccessible and harmful to many First Nations people.

To be sure, some of these features are not set in stone yet, but the direction isn’t looking positive. As Muriel Cummins, an OT in the space quoted another peer describing it the other day,

…like asking NDIS participants to jump off a cliff, while promising to co-design the landing on the way down.

Lastly, and briefly, some calls to action:

First, call for a pause of this Bill until disability and mental health advocates can gain proper assurances that the core elements of the NDIS are not at-threat in this Bill. Today, email the committee members on the Joint Standing Committee on the NDIS.

Second, coordinate with disability, mental health and other advocates out there identifying good-faith legislative solutions to these problems.

Third, begin broadening this debate to ask the government to reconsider its priorities in revenue and expenditure. We need to confront, justify and find solutions  to the increased cost of the NDIS at a Commonwealth level.

Fourth, pause to consider how completely inept the National Mental Health Commission has been at this time. A strong Commission is crucial to ensuring states meet their obligations on foundational supports. This shouldn’t be left just to the Disability Discrimination Commissioner.

Collectively, lived and non-lived experience advocates must act to protect the NDIS through short-term action and sustained long advocacy to keep the NDIS as a priority.

Note: The Senate Community Affairs Committee ultimately recommended the Bill be passed, with the Coalition and Greens opposing. If you wish to act in support of disabled people and their organisations, you might write to the following independent senators who will determine whether the Bill is passed into law.

For more updates and leadership, look to DANA.

[1] In my original speech I incorrectly stated that the reforms were focused on barring people with convictions from the scheme, rather than people from self-managing under the scheme. In either respect, this is a tactic to dog-whistle that the scheme is “out of control” and needing a reign-in, further justifying cuts to the NDIS.

[2] The Disability Discrimination Commissioner Rosemary Kayess and other disability and legal experts have identified inconsistencies and questions regarding, among other articles, 9(2)(e), 19(a), 19(b), 30(2). The intentionally brief amount of time made available by Labor to review this Bill has made it difficult for many to research and share reflections on the human rights implications of this Bill.

Simon Katterl
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