By Rick Morton.
While advocates say they have been ambushed by Labor’s plans to eject autistic children from the National Disability Insurance Scheme, the agency has been accused of ignoring multiple legal orders.
At the same time Labor began plans to divert tens of thousands of children from the National Disability Insurance Scheme, the agency responsible for the program has been accused of serially breaching its legal obligations.
The announcement that the Commonwealth will provide $2 billion over five years, to be matched by state and territory governments, to set up a new umbrella program for what it calls children with “mild to moderate” autism was made by Disability Minister Mark Butler on August 20.
On the same day, Administrative Review Tribunal general member Jon Papalia took the extraordinary step of publishing his reasons in a procedural matter in which he accused the National Disability Insurance Agency of “repeated non-compliance”, which had delayed the tribunal’s review of the agency’s decision regarding an Aboriginal man at risk of serious harm.
The man, 24-year-old James Wilson, has chronic, treatment-resistant schizophrenia, an intellectual disability and “several other disorders”. He was represented by his grandmother, Aunty Marg Knight, and sought an urgent hearing as his funding for round-the-clock care had been cut. Wilson no longer had critical support despite being a danger to himself and others.
The NDIA chose to ignore multiple directions from the tribunal.
“The Respondent [the agency], and its representative, have not complied with multiple orders made by the Tribunal in this proceeding,” Papalia wrote in his reasons.
“These orders were designed to achieve an expedited resolution of the proceeding. By their conduct, they have hindered the Tribunal listing the matter prior to November 2025. It is an offence under the ART Act for any person to engage in conduct that obstructs or hinders the Tribunal in the performance of its functions or for any person to engage in conduct that would, were the Tribunal a court of record, constitute contempt.”
Papalia also criticised the agency’s external legal counsel for sending an email to the tribunal registry that falsely asserted programming orders made by the tribunal in a directions hearing were inaccurate.
Papalia singled out Emily Baggett, a partner at Sydney law firm Mills Oakley, who wrote to the tribunal registry in terms that “suggest an intention to interfere with the administration of justice because it was directed at the registry and falsely asserted that the prevailing programming orders inaccurately reflected the outcomes of the directions hearing on 24 July 2025”.
The Saturday Paper is not suggesting Baggett intended to interfere with the administration of justice when sending the email, just that the email was criticised by Papalia.
“It sought, without consent or conferral, to amend the programming orders made by the Tribunal after the Respondent had failed to comply with the first direction requiring the preparing and provision of a SFIC [statement of facts, issues and contentions] on or before that date,” he wrote.
“Ms Baggett apologised to the Tribunal on 24 July 2025 regarding the late provision of the updated Statement of Issues. However, no excuse was provided for that delay. Ms Baggett also apologised to the Tribunal on 19 August 2025 when she was confronted regarding the terms of her email. She claimed that no offence was intended by the correspondence. The excuse provided was a vague reference to steps having been taken by the Respondent to progress the matter outside of the review. The Tribunal took this to be a reference to the proposed functional capacity assessment which had been raised, considered, and rejected at the first case management hearing as a basis not to require the provision of a SFIC by the Respondent in early August.”
“Ejecting kids with lifelong, permanent and significant disability breaks the promise of the NDIS. There needs to be investment in providing flexible, individualised and group-based supports…”
Earlier in his decision, Papalia wrote: “The Tribunal would reiterate that the Respondent, and any person representing the Executive, have a statutory duty to assist the Tribunal. That statutory duty is in addition to the conduct that is properly expected of the Executive at common law. There are also other statutory obligations applicable to the Respondent as a Corporate Commonwealth Entity, and to legal practitioners representing it.”
Baggett did not respond to a request for comment.
Speaking to The Saturday Paper, Aunty Marg Knight said “the whole NDIS system is absolutely stuffed”.
“You’ve got people making decisions who don’t even know these kids or people, and my experience with them is that nearly every single person we’ve dealt with, all they’ve been interested in is the dollars,” she says. “All these people in their fancy offices playing on their computer all day while I’m trying to keep [my grandson] safe.”
The history of reforms to the NDIS – which Butler described in his speech at the National Press Club on August 20 as now entering its troubled “adolescence”, a period “full of risks that things will run off the rails without a judicious dose of supervision and management” – is characterised by heavy-handed and sometimes abortive attempts at reining in its budget.
Children on the scheme have been in the sights of various governments since 2014. Now, Labor looks set to be the first to achieve this administrative shift and, in doing so, will unwind funding decisions that were baked into intergovernmental agreements by the Gillard government as a means for the Commonwealth to pay for the scheme.
Programs rolled into the NDIS included mental health services operated by the Commonwealth Partners in Recovery, Better Start for Children with Disabilities and the Helping Children with Autism program set up by the Rudd government in 2008.
That program stopped in 2021, but Medicare Benefits Schedule items introduced under it remain in place today. Part of Butler’s proposal is to add yet more Medical Benefits Schedule items, possibly with gap fees, for parents.
“While it eventually attracted bipartisan support, the NDIS was a Labor creation, and – as a Labor minister – I am utterly determined to do whatever I need to do to secure the scheme’s future,” Butler told the National Press Club.
“The second challenge I mentioned earlier goes to an unintended aspect of the scheme’s rollout – namely, its enrolment of large numbers of young children with mild to moderate developmental delay and autism ... I think most Australians would be alarmed to know that one out of every 10 six-year-olds are in the NDIS, including 16 per cent of six-year-old boys. That’s one in every six boys in a Grade 2 classroom.”
Butler’s reforms, which lack full detail, outline a path forward for government: a program named Thriving Kids that will begin from July next year in schools, early learning and education centres, GPs and other community settings; then, from July 2027, “access and eligibility changes will be made” to the legislation to divert “this group of kids over time from the NDIS”.
Not included in this announcement is the later work to target “adults with severe and chronic mental illness”, which Butler told ABC Radio Melbourne’s Drive on August 21 is a “piece of work we’ll have to come to as well”.
What Butler could not do in his press club speech, or subsequently, is guarantee children will not be negatively affected by agency decisions in advance of any rollout. He told the audience that any child “enrolled in the NDIS now – or who become enrolled before that time [2027] – will remain on the scheme, subject to its usual arrangements, including reassessments”.
These “reassessments” have been turbocharged after a significant investment in the agency’s access and eligibility team. The Saturday Paper has previously revealed the agency was sending out thousands of eligibility reassessment letters suggesting people may no longer have a right to support, and demanding further unspecified evidence within 28 days. This process resulted in people being wrongfully removed from the scheme. Some who were able to appeal managed to be reinstated.
The Saturday Paper later revealed the agency relented under pressure to extend this timeframe to 90 days but, under the direction of then chief executive Rebecca Falkingham, used a deliberately bastardised version of this process to kick a disability advocate off the scheme without evidence. The advocate was later reinstated with an extra disability recognised under the act.
Villamanta Disability Rights Legal Service says these abuses of power are becoming more common and materialise in both policy decisions taken by the agency and in a new flex of its power made with the backing of legislative reforms that began in October last year.
“More matters are being met with intransigent conduct by the NDIA at the Tribunal, resulting in an increase in other funded advocacy services seeking our assistance for support with their work,” the service says in a report obtained by The Saturday Paper.
Funding periods introduced in legislation for at-risk cases, as outlined in the explanatory memorandum accompanying the new laws, have instead been implemented wholesale across new and reassessed plans. Impairment notices were introduced at the start of this year to clearly define the disabilities recognised as being funded by the agency. Instead, Villamanta says, these have resulted in the service receiving “multiple reports of impairments being ‘switched off’ or ‘end dated’, resulting in an incorrect descriptor of the individual in question”.
“The impairments held on record by the NDIA are invisible to participants, and … the nominees for these participants were unaware of the issue until they were provided with a Statement of Issues at the ART.”
One of those affected was James Wilson, the Aboriginal man whose support funding was cut. Aunty Marg Knight only found out the agency had refused to acknowledge his intellectual disability because 758 pages of documents were furnished during the appeal to the tribunal.
She says in one of the forms the agency acknowledged Wilson had paranoid schizophrenia but nothing else. “I don’t know where they think his intellectual disability went to,” she says.
All four cases that Villamanta now represents are for people with complex disabilities who have had a “significant impairment knocked off of their record”.
“Then the planner has created the plan, the funding has been reduced, and now we’re at the tribunal,” says Naomi Anderson, principal solicitor at the service. “They are all the same.”
In his announcement, Mark Butler was careful to say the new changes to the NDIS – on top of the compliance regime being used against participants now – will be co-designed closely with the disability community.
“I hope it goes without saying that meeting those challenges will always be framed with the interests – and the choices – of those living with a disability at the centre of our thinking,” he said. “Staying true to the promise of ‘nothing about us without us’.”
Many disability organisations, including representative peak bodies, were not told about the announcement. States and territories were ambushed.
“We are heartened by the Government’s continued commitment to the NDIS, which has changed the lives of people with disability around Australia,” a joint statement from 10 disability representative organisations said.
“However, we are collectively disappointed that the government chose not to engage with the disability community about their announcement ... This has created further uncertainty for our community.”
Nick Avery, the chief executive of the South West Autism Network (SWAN) in Western Australia, says the announcement threatens to break the scheme.
“People diagnosed with autism level 1 rarely gain access to the NDIS. There must be significant evidence of impact on function and, if successful, most only gain early intervention access (two to three years before potentially being removed from the scheme),” she says.
“Ejecting kids with lifelong, permanent and significant disability breaks the promise of the NDIS. There needs to be investment in providing flexible, individualised and group-based supports for kids without requirement of a diagnosis, rather than the cliff-face between NDIS and often inaccessible, unsupportive mainstream services we have now.”
Chantelle Robards, an allied health practitioner and disability advocate, says access to support before the NDIS was “a bit of a lottery” and waiting lists in community health in New South Wales were “years long”. Whether a child was referred for support depended very much on their family and whether they had a regular GP or vigilant preschool teachers.
“If babies were born to disadvantaged families, then they often remained unidentified for years, usually not being picked up until they got to school,” she says. “I can’t see how [the program] Thriving Kids is going to change this.”
Just how the new assessment model will work remains to be seen. The NDIA is currently evaluating tenders for a child-specific functional assessment test. The chief executive of Children and Young People with Disability Australia, Skye Kakoschke-Moore, says a “blanket assessment based on age or diagnosis is not an evidence-formed way to determine a child’s suitability for the NDIS”.
While the Commonwealth continues to hold off on new hospital funding agreements, hoping it can use them to force the states and territories to agree to stump up more for foundational disability supports, Butler is right about one aspect of his scheme diagnosis.
“Families looking for additional supports in mainstream services can’t find them, because they largely don’t exist anymore,” he said. “And, in that, governments have failed them.”
The solutions offered now will be carried out, at least in part, by a disability agency that continues to act with stubborn disregard for participants.
ART member Jon Papalia was so incensed by the behaviour of the NDIA in its treatment of James Wilson that he referred his reasons to the Attorney-General’s Department’s Office of Legal Services Coordination – the office deceived by the then Department of Human Services during robodebt.
A spokesperson for the AGD said: “The Office of Legal Services Coordination (OLSC) takes seriously all concerns raised about the conduct of agencies and their legal services providers.
“OLSC is aware of the Tribunal’s decision and is considering appropriate next steps, and it would not be appropriate to comment on the matter.”
A spokesperson for the NDIA said its chief counsel has ordered an “independent review” into the Wilson matter.
“The Agency will work with the Tribunal on the outcome of this review,” the spokesperson said.
“The Agency has also written to the Office of Legal Services Coordination in the Attorney-General’s Department in relation to this matter and will provide the outcome of the independent review to the Attorney-General’s Department.”
Mark Butler told The Saturday Paper the design of Thriving Kids “will be informed by the many lessons learnt along the way since the scheme’s inception”.
“Families looking for additional supports in mainstream services can’t find them,” he said, “because they either don’t exist or are not appropriately scaled to the demand.”