24/05/2026
NDIS Bill 2026: If “functional capacity” means whatever the executive says it means - Parliament has already lost and so have the people
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What happens when a government stops seeing accountability as democracy’s safeguard and starts seeing it as the obstacle to getting what it wants?
That is the question sitting beneath this NDIS Bill, and it is a question Australians should be asking far more urgently. At the heart of the issue is the separation of powers in the Australian Constitution - the authority of the Parliament to make the law, the authority of the executive to implement it, and the authority of the judiciary to check it has been implemented and followed according to the law made.
In this case, it is the slippery definition in the draft bill of 'functional capacity' - and the intentional collapse of clear meaning into ambiguity by the drafters. The desire for unchecked executive power is stark: there is a clear quest by Cabinet for the Agency to make the law, implement the law, and limit the judiciary's power to restrain them.
➡ What the definition of functional capacity in the 2026 draft NDIS Bill tells us about the Albanese cabinet's aspirations for the executive
The proposed definition of “functional capacity” is indeed the most troubling example of this government's thirst for unbridled power: because this is not a minor technical term. Functional capacity is central to how disability is understood for the purposes of access, eligibility, reassessment, and support.
Yet the Bill defines it in a way that strips away the very context that gives disability meaning. A person’s functioning is to be assessed without assistance from other people, without assistive technology, without modifications, and with environmental and personal circumstances excluded as far as possible.
Then, the draft legislation hands the real substance of the concept to future executive-made rules that can determine thresholds, methodologies, classifications, mandatory considerations, excluded considerations, and even circumstances deemed to exist or not exist. That is audacious, and total in scope.
In practical terms, this Parliament has been asked to no longer meaningfully define disability for the purposes of this scheme. It is being asked to create an empty legal shell and to empower the executive to decide later what disability will mean in practice.
Disability, as read through capacity, is the legal gateway to life-altering rights, supports, autonomy, participation, family integrity, and in some cases personal safety. When the definition itself becomes unstable, rights become unstable with it.
➡ This is not about one frustrated minister, one unfortunate remark, or one badly drafted piece of legislation.
What is emerging is a broader governing pattern, one in which the institutions designed to restrain executive power are increasingly spoken about by the Albanese Cabinet as though they are the problem, rather than the protection of the people.
We've seen this before, and we will see it again until we stop it
When the government introduced its Freedom of Information Amendment Bill, transparency and integrity experts warned that the reforms would weaken public accountability rather than strengthen it.[1]
The legislation was ultimately withdrawn, but the instinct behind it matters.
When parliamentary scrutiny over transparency became politically inconvenient, Prime Minister Anthony Albanese reportedly told the Coalition they might lose their 8 percent loading in deputy chair positions on Senate Committees; and upon election, Albanese directly told the strengthened cross-bench to “get out of our way”.[2]
When speaking at the National Press Club in April, Health and NDIS Minister Mark Butler complained that decisions of the Federal Court and Administrative Review Tribunal had restricted the Agency’s ability to implement reform.[3]
On May 12, on the day of the budget, Assistant Minister Jenny McAllister repeated the same logic - in Parliament, no less - arguing that decisions of the courts and the Tribunal had similarly restricted the NDIA’s capacity to implement the reforms it wanted.[4]
Starkly: nobody challenged her. Not openly, anyway.
That matters.
Taken together, these are not isolated comments. They reveal a particular way of thinking about democratic institutions, one in which scrutiny is framed as obstruction, judicial oversight as interference, and legal accountability as an impediment to executive action.
That should concern all of us, because courts are not there to make life easier for governments. Parliament does not exist to simply authorise ministerial preference. Administrative review exists precisely so ordinary people can challenge government decisions when those decisions are unlawful, unreasonable, or wrong. These are not design flaws in democracy. They are the design.
That is what makes this NDIS Bill so important.
Because the same governing instinct appears in its architecture; and we have already been given a lethal taste of it with the first NDIS Bill (2024), which did the same but not to such an extreme degree.
That Bill has killed our people. This one will too.
Rather than clearly defining key concepts that determine access to life-changing disability supports, the legislation now before the Australian people and our Parliament sets out staggeringly broad outlines while leaving the substantive detail to future executive-made rules.
Ministerial powers are expanded. Review rights are narrowed. Reassessment becomes harder to access. Support burdens are shifted back onto families, despite the well-established reality that unpaid care in Australia falls disproportionately to women.[5]
This is not simply a disability policy debate. It is a question about how executive power can expand in modern democracies and distort our country if we do not stand against it in time (and we still can).
It *rarely* happens through dramatic declarations. More often, it happens through legislative ambiguity, through the quiet transfer of substantive decision-making away from Parliament, and through the gradual narrowing of the mechanisms ordinary people rely upon to challenge state power.
The original NDIS Act was built on a fundamentally different premise, and those core tenets remain in the objects and principles.
It expressly gives effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities, a framework grounded in dignity, autonomy, participation, the rights of the individual and the understanding that disability arises not simply from impairment, but from the interaction between people and the barriers society creates.[6]
This Bill moves in another direction.
History teaches that power rarely expands all at once. Please, pay attention to the slow creep.
Power is hungry: it tests boundaries, learns from what it can get away with, and gradually normalises what would once have provoked alarm. That is why this moment matters. That is why we are speaking up wherever we can be heard. Our Autistic pattern recognition is straining under the weight of what we can clearly see, and are calling for others to see, too.
If our governments begin to treat every institution designed to restrain power as the problem, the real question is not what happens to disabled Australians alone.
It is what happens to democratic accountability itself when restraint becomes politically inconvenient.
And while democracy can, and always does, recover - so much harm can be done if we do not act in time to stop the bad moon rising. Believe us: it is rising.
Can we act together to restore the balance - and put that bad moon back in its place?
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References in comments bc we don't want to make the algo grumpy :)
[Image: Anthony Albanese in Parliament, 2025. Credit: AAP]
