NDIA Accountability Project

Risks of expanding the NDIA’s administrative power

‹ PrevPage 1 of 7 · Source p. 1Next ›

Submission 1571 - Supplementary Submission

Submission to the Senate Standing Committee on Community Affairs

National Disability Insurance Scheme Amendment Bill

Submitted by:
  • Nicola Ross
  • GradDip (Mental Health & Neuroscience)
  • BNursing / BEarly Childhood Teaching (0–5)
  • Nursing Representative, Justice Health Clinical Ethics Advisory Panel

Submission 1571 - Supplementary Submission

1. Introduction

I submit this assessment as a clinician with postgraduate qualifications in Mental Health and Neuroscience, a double degree in Nursing and Early Childhood Teaching, and as a representative on the Justice Health Clinical Ethics Advisory Panel.

Government inquiries, including the NDIS Review and the Disability Royal Commission, have idenƟfied systemic failures within the NDIA:

  • including high error rates
  • inconsistent reasoning
  • misuse of internal policies, and
  • a lack of transparency and accountability.

Despite these findings, the NDIS Amendment Bill relies heavily on NDIA operaƟonal advice and expands NDIA administraƟve power by shiŌing key parƟcipant protecƟons from the Act into NDIS Rules.

Economic modelling, naƟonal clinical guidelines, and cross-system impact analysis were referenced only superficially and not embedded in the Bill’s design.

2. Systemic Administrative Risks

2.1 High Baseline Error Rate

The NDIS Review found that:

  • 30–40% of NDIA decisions that are challenged are incorrect or poorly reasoned, and
  • parƟcipants with the lowest socioeconomic status are the least able to seek review

This creates a high baseline error rate in a system where those most harmed by errors have the least capacity to correct them.

2.2 Expansion of Discretionary Powers

The Bill further compounds these risks by expanding the discreƟonary powers of the NDIA and the Minister across several key areas, including:

  • evidenƟary requirements
  • the definiƟon of supports
  • early intervenƟion pathways
  • plan flexibility categories and funding caps, and
  • access to review rights.

Notably, these maƩers are to be governed by Rules that can be amended with limited parliamentary scruƟny, raising significant concerns about transparency, accountability, and the stability of parƟcipant enƟtlements.

Submission 1571 - Supplementary Submission

Structural Tensions

The Bill introduces a structural tension:

  • The agency whose decision-making failures require correcƟon is being granted expanded administraƟve power before those failures are fixed, while the protecƟons designed to constrain those failures are being moved into a weaker legal instrument.

From a governance perspecƟve, this contradicts:  principles of administraƟve integrity  risk management  delegated legislaƟon safeguards  procedural fairness, and  public accountability.

The Bill creates foreseeable legal risks, including:

From a legal perspecƟve it creates predictable risks of:

  • ultra vires rule making
  • improper purpose
  • unlawful feƩering of discreƟon
  • procedural fairness breaches, and
  • human rights conflicts in jurisdicƟons with human rights legislaƟon

These risks are not theoretical; they align with patterns previously identified in administrative law reviews.

Cross-System Escalation Risks

The NDIS Review documents the consequences of inadequate or delayed supports:

  • behavioural escalaƟon
  • school refusal
  • family breakdown
  • homelessness
  • substance use
  • police involvement
  • child protecƟon involvement
  • acute mental health crises, and
  • increased reliance on high-cost supports.

Submission 1571 - Supplementary Submission

State budget papers across NSW, VIC, and QLD show that services are already over capacity, including:

  • emergency departments
  • mental health services
  • homelessness systems, and
  • child protection

When NDIS supports tighten and errors become harder to correct, demand shifts into these systems, which are more expensive, less effective for disability needs, and not designed to absorb unmet NDIS demand.

This represents cost displacement rather than durable fiscal savings.

International Precedent

Comparative international policy analysis across the United Kingdom, New Zealand, and Canada demonstrates a consistent structural trend:

  • expanding administrative discretion in disability frameworks prior to correcting baseline agency decision errors systematically drives up multi-sector public expenditures and produces predictable social harm.

Time-Bound Consequences

The following trajectories are supported by national datasets, international precedent and established escalation patterns. The consequences are time-bound and structurally predictable.

Within 6–18 months:

  • State systems begin to feel pressure as unmet need escalates.

Within 18–36 months:

  • Significant strain emerges across health, mental health, homelessness, justice, and child protection.
  • Early intervention failures begin locking in irreversible impairments.

Within 3–5 years:

  • State systems reach functional overload.

Within 5 years:

  • States absorb $36–$55 billion in crisis demand — exceeding the Commonwealth’s planned $32 billion in NDIS savings.

Submission 1571 - Supplementary Submission

Within 10 years: NaƟonal costs escalate through:

  • higher lifeƟme disability expenditure
  • $15–20 billion per year in lost producƟvity, and
  • $10–20 billion per year in increased health and welfare spending. These projections reflect risk-aligned modelling rather than deterministic forecasts.

Evidence Gaps and Current Limitations

There is no current government evidence showing that:

  • state systems have spare capacity to absorb addiƟonal disability-related demand
  • NDIA decision quality is improving at a rate that would miƟgate increased administraƟve discreeƟon, or
  • ReducƟons in disability supports do not increase the risk of long-term impairment

Available evidence, including the government’s own commissioned reviews, indicates that reduced disability supports are consistently associated with:

  • Increased long-term public expenditure
  • higher demand for state crisis services
  • adverse social and health outcomes.

Conclusion

Across all core legislaƟve assessment domains, including governance, legality, administrative capability, fiscal impact, human rights, and internaƟional precedent, the Bill presents significant structural risks that make harmful outcomes highly foreseeable based on available evidence.

The evidence does not support the conclusion that the Bill will improve the NDIS; instead, it indicates that the Bill will reinforce exisƟng NDIA decision-making challenges, weaken safeguards, increase long term costs, and expose both State and Commonwealth systems to escalaƟing crisis demand.

Taken together, these findings demonstrate that the Bill contains criƟcal structural vulnerabiliƟes that may compromise its intended outcomes. It contains systemic contradicƟons, introduces governance failures, creates foreseeable legal risks, shiŌs costs into already over-burdened state systems, and is associated with the risk of predictable adverse outcomes as documented in the NDIS Review and internaƟonal evidence.

The combinaƟon of high NDIA error rates, expanded discreƟonary power, weakened statutory safeguards, and the absence of cross-system modelling means the Bill does not resolve exisƟng failures. Instead, the Bill is likely to exacerbate exisƟng administraƟve weaknesses.

Across the core risk domains typically considered by parliamentary commiƩees, the bill presents unresolved or elevated consequences.

Submission 1571 - Supplementary Submission

Rather than resolving systemic issues, the proposed legislaƟon embeds and expands the NDIA’s exisƟng administraƟve failures, resulƟng in predictable legal, social and economic harms.

Withdrawing essenƟal disability supports are unlikely to generate durable fiscal savings; it does not reduce public spending, but shiŌs it into higher-cost emergency frameworks. The resulƟng financial pressures across State and Commonwealth systems represent a foreseeable and substanƟal risk associated with the Bill.

10. Recommendations

The following recommendations are proposed to reduce legislative, administrative and fiscal risk, while supporting the policy intent of the bill. They are framed to align with established evidence, international precedent and the findings of the NDIS reviews.

9.1. Strengthen statutory safeguards before expanding NDIA discretion

Before transferring key protections into the Rules, the committee may wish to consider:

  • reinstating core participant rights and definitions in primary legislation
  • ensuring that any discretionary powers are accompanied by clear statutory criteria
  • requiring parliamentary scrutiny for changes to Rules that affect participant entitlements

9.2. Improve NDIA decision-making quality prior to major structural reform

Given the high baseline error rate identified in the NDIS Review the committee may wish to consider:

  • implementing mandatory decision-quality benchmarks
  • establishing independent auditing of NDIA reasoning and evidence use
  • requiring transparent publication of decision-making metrics

9.3. Require cross‑system modelling before implementing changes that may shift demand to states

To avoid unintended cost displacement, the Committee may wish to consider requiring:

  • cross‑jurisdictional modelling of impacts on health, mental health, justice, homelessness and child protection systems
  • consultation with state and territory governments regarding system capacity
  • fiscal impact statements that include downstream state costs

9.4. Protect early intervention pathways from administrative narrowing

Given the long‑term cost implications of delayed intervention, the Committee may wish to consider:

  • maintaining broad early intervention eligibility in primary legislation

Submission 1571 - Supplementary Submission

  • requiring that any changes to early intervention pathways be evidence-based and independently reviewed

9.5. Introduce minimum evidentiary standards to prevent inconsistent or overly restrictive interpretations

To reduce variability and improve fairness, the Committee may wish to consider:

  • legislating minimum evidentiary requirements
  • prohibiting internal operational guidelines from overriding statutory intent
  • requiring that evidence standards be developed with clinical and disability sector input

9.6. Strengthen review rights and procedural fairness protections

To ensure participants can meaningfully challenge incorrect decisions, the Committee may wish to consider:

  • preserving merits review access for all materially affected decisions
  • requiring clear written reasons for all decisions
  • ensuring participants can access evidence relied upon by the NDIA

9.7. Require independent evaluation of the Bill’s impacts within 12–24 months

To ensure early detection of unintended consequences, the Committee may wish to consider:

  • mandating an independent evaluation of administrative, fiscal and cross-system impacts
  • requiring public reporting to Parliament
  • enabling corrective legislative action if adverse impacts emerge

I welcome any further inquiries or requests for clarification from the Committee and am available to provide additional data or context in writing.

Thank you for considering this risk assessment.

Nicola Ross

GradDip (Mental Health & Neuroscience) BNursing / BEarly Childhood Teaching (0-5) Nursing Representative / Justice Health Clinical Ethics Advisory Panel