The NDIS and Unfair Contract Terms: A timely example

In the ever-evolving NDIS legal landscape, ensuring your service agreements are compliant, fair, and commercially sustainable has never been more important – or more scrutinised.

As someone who works alongside providers navigating the intersection of regulation, governance and practical service delivery, I understand the challenge: how do we protect business interests while remaining within the boundaries of both the Australian Consumer Law (ACL) and the NDIS Practice Standards?

A Wake-Up Call: Mable Technologies and the ACCC

The recent ACCC enforcement action against Mable Technologies is a timely reminder of what’s at stake. Mable, an online platform connecting support workers with NDIS participants and others, admitted to using unfair contract terms between November 2023 and August 2024. These included automatic fee penalties of up to $5,000, non-negotiable variations to key terms (e.g. changing fees without notice), and timesheet approvals by default unless disputed within 24 hours.

The ACCC found that such terms created significant imbalances (given how weighted in Mable’s favour they were). This is especially so for clients with disabilities and sole trader support workers – people who often lack the resources to challenge contracts. The penalties? A court-enforceable undertaking, mandated term revisions, and a requirement to build an ACL compliance program.

What Makes a Term Unfair?

Under the updated unfair contract terms regime, a term may be deemed “unfair” if it:

• creates a significant imbalance in the parties’ rights and obligations,
• is not reasonably necessary to protect the advantaged party’s interests, and
• causes detriment (financial or otherwise) if enforced.

And yes, even if a contract allows for a few token negotiations, it may still be considered “standard form” and thus subject to the regime.

What This Means for Providers

Let’s be clear: providers are not the enemy in this conversation. You are critical partners in delivering support that empowers participants and ensures choice, control, and safety. But compliance now requires more than just good intentions. It demands careful drafting, ongoing reviews, and a willingness to challenge legacy templates.

Some practical points I emphasise when working with providers:

Avoid “boilerplate bias”: terms around termination, liability, refunds, and indemnities must be clear, balanced and not excessively one-sided – even if they’ve “always been there.”

Respect pricing limits: the NDIS Pricing Arrangements set firm boundaries. Overreaching on late fees, cancellation penalties, or hidden costs can land you in hot water.

Design for flexibility: participants must be able to adjust or exit services without unreasonable penalties. This is not just a best practice – it’s the law.

Use plain language: courts assess fairness based on how transparent the contract is. Avoid legalese, ambiguity, or unnecessary complexity.

It’s Time to Move from Risk to Resilience

Ultimately, compliance with the ACL and the NDIS Code isn’t a box-ticking exercise. It’s about building trusted and sustainable service models that honour the rights and expectations of participants – while still protecting your organisation’s commercial viability.

If you’re still using template agreements without a compliance audit, now is the time to review and refresh. And if you’re unsure where to begin, don’t go it alone. Get legal advice tailored to your operational context. It's far better to identify risks now than to be tomorrow’s ACCC headline.