When the State Becomes the Opponent

Equality of Arms, Model Litigant Obligations and Justice in NDIS Appeals

Abstract:

The National Disability Insurance Scheme (NDIS) provides participants with the right to seek independent merits review of decisions made by the National Disability Insurance Agency (NDIA) before the Administrative Review Tribunal (ART). However, the practical ability of participants to exercise that right has become increasingly unequal. This essay argues that the significant disparity in legal, financial and institutional resources available to the NDIA, compared with those available to many participants, raises fundamental questions about the integrity of Australia's administrative justice system.

Using the principles of equality of arms, the Commonwealth's Model Litigant Obligations, the statutory objectives of the Administrative Review Tribunal Act 2024, and Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities, particularly Articles 12 and 13, the essay examines whether current litigation practices provide people with disability a genuine and effective opportunity to challenge the exercise of public power. It argues that, where participants are unrepresented or experience significant cognitive, intellectual or communication impairments, the procedural imbalance between the parties has implications that extend well beyond individual funding disputes and engage broader principles of procedural fairness, equality before the law and access to justice.

The essay further contends that these proceedings frequently concern matters far more significant than financial entitlements. Decisions that reduce long-established individualised supports, such as replacing 24-hour one-to-one assistance with shared support arrangements, may determine whether a participant can continue living in their own home, remain connected to their community, preserve personal autonomy and avoid a return to congregate forms of support that successive disability reforms have sought to dismantle. In this context, merits review becomes not merely an administrative process but a safeguard for the practical enjoyment of fundamental human rights.

Finally, the essay argues that the urgency of these issues is heightened by proposed amendments to the NDIS legislative framework. If current administrative funding practices are embedded in legislation or binding Ministerial determinations, the scope for independent merits review of those practices may be significantly reduced. The paper concludes that the present moment offers a diminishing opportunity to examine whether Australia's administrative justice system adequately protects the rights of people with disability before those questions become matters of legislative policy rather than administrative decision-making. It calls upon government, the legal profession and the broader community to ensure that access to justice is measured not by the existence of review rights in legislation, but by whether those rights can be exercised meaningfully and on genuinely fair terms by those whose lives are most profoundly affected by the decisions of the State.

If you want to read the entire essay you can download it here.

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