National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
Submission to the Senate Community Affairs Legislation Committee
Inquiry into the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026
About this submission
I am an NDIS participant. I make this submission in a personal capacity. I have not been assisted by any organisation in preparing it. I support the long-term sustainability of the NDIS. The concern that follows is not opposition to reform. It is concern about a specific set of structural features of the Bill: the extent to which substantive matters affecting participant eligibility, assessment, and access to supports are left to legislative instruments rather than determined in the primary legislation; the way in which the Bill removes or weakens merits review of decisions that directly affect participant supports; and the introduction of automated decision-making and a compliance and debt framework whose closest Commonwealth analogues have produced significant, well-documented harm. Delegated legislation can produce structurally discriminatory outcomes that persist for decades without effective scrutiny. Structural features in primary legislation outlast the political commitments of the Minister of the day. The Bill contains several structural features similar to those present in two recent Commonwealth administrative failures: the Income Compliance Program (Robodebt) and the Targeted Compliance Framework. The submission asks the Committee to take those precedents seriously.
Recommendations
The Committee should recommend that the Bill be amended to include, in the primary legislation, the following safeguards.
A. Safeguards on delegated legislation • Evidence-based methodology. Assessment methodologies adopted in any instrument must be evidence-based and independently clinically validated, with the evidentiary basis publicly available before the instrument is made. • Multi-domain assessment for psychosocial disability. Methodologies applied to psychosocial disability must use a multi-domain functional model and must not treat capacity in any single domain as determinative. • Meaningful consultation. People with disability, including people with psychosocial disability, must be meaningfully consulted before any such instrument is made, and the Minister must publish reasons for any departure from clinical advice received. • Disallowance and compatibility. Any such instrument must be a disallowable legislative instrument under the Legislation Act 2003 (Cth) and accompanied by a statement of compatibility with the Disability Discrimination Act 1992 (Cth) and the Convention on the Rights of Persons with Disabilities. • Independent 5-yearly review. Any such instrument must be reviewed independently at least every 5 years against current clinical evidence and against outcomes data for participants with psychosocial disability.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
B. Review rights • Internal review. Decisions that materially affect a participant’s supports, including support determinations, funding caps, plan renewals, plan suspensions, and transitions to new framework plans, must be subject to internal review under section 100 of the National Disability Insurance Scheme Act 2013 (Cth). • External merits review. Those decisions must also be subject to external merits review by the Administrative Review Tribunal. • Equal review rights for automated decisions. Decisions made wholly or partly by automated means must carry the same review rights as equivalent decisions made by human decision- makers.
C. Automated decision-making safeguards • No evaluative ADM without legislated framework. Automated decision-making must not be used for decisions involving evaluative judgement until a whole-of-government framework for the use of automated decision-making in administrative decisions has been legislated. • Statutory human oversight. Statutory requirements for human oversight of any automated decision affecting individual rights must be set out in the primary legislation. • Transparency. The inputs, logic, and operating parameters of any automated system used to make or assist decisions must be transparent and publicly available. • Right to human reconsideration. Participants must have a statutory right to challenge any automated decision and to obtain a human reconsideration on the merits.
D. Protection against unfair exclusion and debt • Defences to administrative debt. The Bill must not create administrative debts arising from record-keeping or evidentiary failures without provision for hardship, vulnerability, and reasonable-cause defences. • Limit on section 25B exclusion. Proposed section 25B must not operate to exclude from NDIS access persons whose impairment may be the subject of a workers’ compensation or motor vehicle accident claim, except where compensation has actually been paid for that impairment and is reasonably available to meet the relevant need.
Provisions of the Bill that strip or weaken review rights
The Bill removes or weakens merits review of several categories of decision that directly determine participant access to supports. The following provisions raise this concern most acutely: • Proposed section 32B(2A): the NDIA may decide to transition a participant to a new framework plan (the planning framework introduced under the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)) instead of deciding a reassessment request. Transitions to new framework plans are not reviewable. The combined effect is that the NDIA can decline to reassess and instead move the participant into a framework in which the original reassessment question can no longer be raised on review. • Proposed section 50A: plans are automatically renewed at the end date for a further 12 months. The Minister may make ‘alterations’ to the renewed plan, the scope of which is not defined in the primary legislation. Automatic renewals are not reviewable. A participant may
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
therefore have their plan altered for a further 12 months without an opportunity to challenge the alterations. • Proposed section 34A: the Minister may make support determinations that reduce, by percentage, the funding available across the Scheme for particular groups of supports. The determination operates as a legislative instrument applied to all affected participants. Because the reduction operates through the instrument rather than through an individual decision, the reduction itself is not amenable to merits review. The Explanatory Memorandum expressly contemplates that participants will receive less than the amount independently assessed as reasonable and necessary for them.1 • Proposed subsections 33(2EA) and 33(2EB): the Minister may set maximum amounts, frequencies, and durations for supports, and maximum ratios of workers to participants. The same structural feature applies: the cap is set in the instrument and is not amenable to individual review. • Proposed section 40A: the NDIA may suspend a participant’s plan after 90 days of being uncontactable. Proposed section 30(1A) permits revocation of the plan after a further 90 days. The Bill does not require the NDIA to consider the risk that suspension poses to the participant, nor does it require the NDIA’s attempts at contact to meet the participant’s accessibility needs. • Proposed section 25B: a person whose impairment is from a workplace injury or a motor vehicle accident that is covered by a compensation scheme will not qualify for the NDIS. The Bill overrides the Federal Court’s decision in National Disability Insurance Agency v Sutherland [2026] FCA 3,2 which had held that the NDIS could fill a gap between other supports and a person’s actual needs. The provision will operate harshly for participants whose workers’ compensation entitlements are assessed under instruments that systematically undervalue psychiatric impairment, including the Comcare permanent impairment framework discussed in the next section. A person whose workers’ compensation provides minimal recognition of psychiatric impairment may now be excluded from the NDIS by reference to that minimal compensation. • Schedule 5 contains a Henry VIII clause permitting the Minister, during the 12 months after commencement, to make rules that modify the effect of the Act; such rules may operate for up to 12 months. Where substantive participant rights are to be altered, Parliament should determine the limits of those powers in the primary legislation rather than leaving core matters to executive rule-making. The cumulative effect of these provisions is that a substantial proportion of the decisions that determine what supports a participant actually receives will not be amenable to merits review by the Administrative Review Tribunal. The Tribunal’s jurisdiction is the principal safeguard available to participants whose plans do not reflect their needs. The reduction or removal of review rights in combination with automated or instrument-based decision-making raises significant procedural fairness concerns, particularly for participants with psychosocial disability, cognitive impairment, communication barriers, or fluctuating capacity. The Bill should not be passed in a form that removes that safeguard from the decisions that matter most.
1Explanatory Memorandum, National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026, illustrative example of a participant receiving less than assessed reasonable and necessary supports. 2National Disability Insurance Agency v Sutherland [2026] FCA 3.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
The Robodebt and Targeted Compliance Framework precedents
Two Commonwealth programs in recent memory have produced significant, documented harm through the operation of automated processes and administrative debt-raising under delegated frameworks. The Bill replicates several of the structural features that produced those harms.
Robodebt The Income Compliance Program (Robodebt) operated from 2015 to 2019 and was found by the Royal Commission into the Robodebt Scheme to have been unlawful, to have caused widespread harm including to people with disability and mental illness, and to have been sustained over years despite repeated internal and external warnings.3 The harms were produced by a combination of administrative debt-raising without individual adjudication, reversal of the evidentiary burden onto income support recipients, automated processes operating without effective human oversight, and compressed timeframes that produced non-response failures triggering adverse outcomes. The Bill reproduces three of these features: • Administrative debt-raising without defence. Proposed section 45B requires participants to keep specified records (the categories of record to be set in rules not yet made). Proposed section 182(4) provides that if a claim is paid and a participant cannot produce a specified record, the participant owes a debt to the NDIA. The Bill does not provide for hardship, vulnerability, or reasonable-cause defences. The mechanism contains several of the structural features identified by the Royal Commission into the Robodebt Scheme as producing systemic harm, including administrative debt-raising linked to evidentiary failure and the shifting of the practical burden of producing records onto vulnerable recipients. • Automated decision-making expressly authorised, with expansion by instrument. Proposed sections 59B and 59C authorise the NDIA to make decisions by automated means, initially in relation to payment or rejection of claims and approval of old framework plans. Proposed subsection 59C(2) permits the Minister, by legislative instrument, to authorise automated decision-making for further classes of decision. There is no whole-of-government framework legislating safeguards for the use of automated decision-making in administrative decisions affecting individual rights. The Bill itself contains some procedural safeguards (the right of the NDIA to override, a published standard operating procedure for decisions involving evaluative judgement, notification to affected persons), but these safeguards are weaker than those recommended by the Robodebt Royal Commissioner and they do not include a statutory right to a human reconsideration on the merits. • Compressed timeframes producing non-response failures. The Bill cuts the period for making a claim from 2 years to 90 days. It triggers plan suspension at 90 days of being uncontactable. It triggers plan revocation at a further 90 days. Each compression increases the rate at which participants who are unwell, in crisis, hospitalised, homeless, or otherwise unable to respond will fail to respond in time, with the consequence that their supports are removed without their participation in the decision.
Targeted Compliance Framework The Targeted Compliance Framework (TCF) has operated within Workforce Australia and its predecessors since 1 July 2018. The Commonwealth Ombudsman’s investigation report found that the automated system had unlawfully cancelled at least 964 social security participation payments between April 2022 and July 2024, and that a further 45 cancellations occurred after a pause was
3Royal Commission into the Robodebt Scheme, Report (Final Report, 7 July 2023).
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
introduced.4 Those findings sit against a wider operational context in which tens of thousands of payment suspensions are imposed every quarter under the TCF. The Ombudsman invoked the conclusions of the Robodebt Royal Commission in framing those findings. A Deloitte independent assurance review of the TCF could not provide assurance that the TCF reliably operates or delivers outcomes lawfully.5 The Deloitte review’s conclusions are consistent with the Commonwealth Ombudsman’s parallel and independent investigation. The review found that penalties and payment suspensions were automatically applied without sufficient safeguards. The Department of Employment and Workplace Relations has paused several categories of cancellation and suspension decision in response. The relevant features of the TCF, for present purposes, are: an automated decision-making system that triggered payment suspensions and cancellations; compliance and reporting obligations imposed on income support recipients many of whom were people with disability or mental illness; compressed timeframes for response; and limited individual recourse against the automated triggers. Recipients in many cases discovered the suspension only when payments did not arrive, by which time the consequences of the suspension had begun to compound. The Bill creates an analogous structure within the NDIS. Compliance and reporting obligations are imposed on participants (proposed sections 45A, 45B, 53(2) and (3)). Adverse consequences are triggered by record-keeping failures (proposed section 182(4)) and by uncontactability (proposed sections 40A, 30(1A)). Automated decision-making is authorised at the threshold and expandable by instrument (proposed sections 59B, 59C). Civil penalties are available against participants and prospective participants for failure to provide information (proposed sections 53(2) and (3)). The Bill differs from the TCF in some respects, but the core structural features that produced the harms identified by the Ombudsman and by Deloitte are present.
Common pattern Robodebt and the TCF share a common pattern: a framework that was implemented with reassurances about safeguards, that operated unlawfully or unfairly for years, that was sustained against repeated warnings from affected people and their representatives, and that was eventually found to have caused significant harm by independent inquiry. In each case, the harm was produced not by a single discretionary decision but by the structural design of the framework. In each case, the framework operated through delegated instruments and through automated processes that were not effectively reviewable in the manner that individual administrative decisions are reviewable. The Bill creates conditions in which the same pattern is possible within the NDIS. The Committee should not assume that the present Government’s intentions in administering the framework are determinative. Robodebt was administered by successive governments. The TCF was introduced under one Government and continued under another. Structural features in primary legislation outlast the political commitments of the Minister of the day. If the structural features are not addressed in the Bill, they will be available to future Ministers and to future agencies, regardless of present assurances.
The Commonwealth has done this before in disability assessment
The Committee should also keep in view a third Commonwealth precedent for how the design features in this Bill, substantive matters left to legislative instruments with limited merits review, can entrench
4Commonwealth Ombudsman, Automation in the Targeted Compliance Framework: when the law is changed but the system isn’t (Investigation Report, March 2025). 5Deloitte, Targeted Compliance Framework Assurance Review: Final Report (report to the Department of Employment and Workplace Relations, June 2025; updated 3 February 2026).
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discriminatory outcomes for decades without effective reform. The precedent is less recent than Robodebt or the TCF and concerns people with psychosocial disability. The Comcare permanent impairment framework, contained in the Guide to the Assessment of the Degree of Permanent Impairment made under section 28 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), is a legislative instrument approved by the Minister. It is binding on Comcare, on licensees, and on the Administrative Review Tribunal. The current Guide is Edition 3.0, registered as Legislative Instrument F2023L00203, in force from 1 April 2023. The Guide treats psychiatric impairment differently from physical impairment in a way that is not required by the Act. Paragraph 57 of the Guide excludes 4 categories of impairment from the standard assessment methodology used for physical impairment: mental and behavioural impairments; visual impairments; hearing impairments; and chronic pain conditions. Visual, hearing, and chronic pain impairments are each routed to a clinically validated alternative methodology. Mental and behavioural impairments are routed to Table 5.1, which assesses impairment by whether the person requires supervision and direction in activities of daily living. A person whose psychiatric impairment is severe in social functioning, concentration, adaptation, or capacity for employment, but who retains basic daily living capacity, will not reach the threshold for compensation. That this is a discretionary policy choice rather than a legislative requirement can be tested directly. The Defence Guide, made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth), operates under the same parent legislative framework. The Defence Guide does not contain the paragraph 57 exclusion. The same statutory architecture has produced 2 different instruments. The restrictive feature in the Comcare Guide is a feature of the instrument, not of the Act. No publicly available clinical or actuarial review explains the divergence. The Royal Australian and New Zealand College of Psychiatrists has stated that aspects of Australian workers’ compensation schemes discriminate against people with mental injuries through legislative design and may breach Australia’s obligations under the CRPD.6 In Dillon and Comcare [2019] AATA 214, the Administrative Appeals Tribunal assessed an applicant with a serious and debilitating psychiatric condition at 10 per cent whole person impairment, expressly noting that the Tribunal was constrained from finding a higher percentage by the structure of the Guide’s tables and Notes.7 This framework has persisted in Commonwealth delegated legislation for the entire operative life of the Disability Discrimination Act 1992 (Cth). It has survived the introduction of the DDA, the entry into force of the CRPD for Australia, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, the Royal Commission into Defence and Veteran Suicide, the Independent Review of the SRC Act,8 and 3 editions of the instrument itself. The September 2022 consultation paper for the current edition expressly excluded the psychiatric impairment criteria from the scope of review. The relevance for this inquiry is that the Comcare experience demonstrates how long a discriminatory feature can persist when it is placed in a legislative instrument rather than in primary legislation. The SRC Act framework has produced the very kind of outcome the Bill’s safeguards are needed to prevent: a Commonwealth scheme in which psychiatric and psychosocial impairment is systematically undervalued by the design of the assessment instrument. Commonwealth disability policy is administered through siloed schemes that assess the same conditions against different criteria, communicate poorly across portfolios, and pass the cost of
6Royal Australian and New Zealand College of Psychiatrists, Public Insurance Schemes: Advocating for Mental Injury Claimants (Position Statement 94, 2017). 7Dillon and Comcare [2019] AATA 214. 8Commonwealth of Australia, Independent Review of the Safety, Rehabilitation and Compensation Act 1988 (Final Report, 25 September 2025). The Review made 124 recommendations, none of which address the psychiatric impairment criteria in the Guide.
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National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 1223
inconsistency onto the person at the centre of every scheme. The Committee should not endorse legislation that deepens that siloing by tightening the boundaries between schemes without addressing the inconsistencies between them.
Personal note
I receive supports through the NDIS that allow me to participate in daily life, sustain my functional capacity, and avoid the deterioration that would otherwise occur. Those supports are preventative. They are the reason for the stability that an assessment instrument is liable to read as evidence that the supports are no longer required. I make this submission because I am aware of how Commonwealth delegated legislation, automated decision-making, and administrative debt frameworks have operated, in recent years, to produce significant harm to people with disability. I ask the Committee to ensure that the NDIS framework is not exposed to those risks through the rule-making, instrument-making, automated decision-making, and compliance provisions of the Bill. Once a discriminatory or unfair framework is embedded in delegated legislation, it can persist for decades without effective scrutiny or reform. The SRC Act demonstrates how slowly such a framework can be reformed; Robodebt and the TCF demonstrate how rapidly an automated, instrument-based compliance framework can produce systemic harm when its safeguards are inadequate. The Bill is the moment at which Parliament can ensure those patterns are not repeated within the NDIS.
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