Inquiry into National Disability Insurance Scheme Amendment

(Safeguarding the NDIS for Future Generations) Bill 2026

The Law Council of Australia thanks the Senate Legislation Committee on Community Affairs ( the Committee) for the opportunity to comment on the National Disability Insuranc eScheme Am endment (S afegu ar ding th e NDIS fo r Fut ure gener ations ) Bi ll** (the B ill). This submission is informed b y input from t he Queensland La w Society and di s c o ver ed that the timeframe f or considerationof such significant changes proposedbyth eiBillis unacceptably short.TheLawCouncilhasbecomeincreasinglyconcernedb yrushedlegislative reform processesthathavelackedadequate transparentpublicscrutiny.InourCalltoParties,wenotedt hatgoodlaw-makingprocessesunderpintheruleo fl awand democracyinthiscountry,ands houldnotb etakenforgranted.Thatiswhy,inJuly, wepublishedaBestPracticeLegislativeDevelopmentChecklisttoast i st why , in July)

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

Process Shortfall

The process for this Bill falls short of a number of points in the Checklist, including most pertinently adequate consultation with the disability community and other affected groups. As at March 2026, almost 775 Australians benefit from the National Disability Insurance Scheme (NDIS) [^ndis]. The proposed reforms are wide-ranging, to enact proposed reforms and,in particular,”deep publicconsultation and engagement …to understand and address potential concerns or unintended consequences”(Action[^indp_review]_25.2). Close consultation with,and active involvementwith,persons disabilities decision-making processes affecting them is also underArticle4(3)[CRPD],among obligations relevant totheBill’sproposed measures.[^law_council] However,the do not justify rushing through Parliament so rapidly that it cannot be properly scrutinised. Given complexities human rights impacts associated reform proposals,matters outlined belowand concerns about[publiccommentary][livedexperience],[communityother key stakeholders strongly recommend further consultation undertaken.]

Proposed measures

In the limited time available, we have identified several issues for the Committee’s attention, as set out below. Please refer to the list of recommendations at the end of submission for a summary of Law Council’s concerns.

Permanence test

The Independent Review of the NDIS recommended “legislative changes to strengthen the operation of the permanence criteria”. Part 8 would insert new subsections 24(5) and 25(1B), providing: a) If an impairment or impairments is not permanent unless all appropriate treatment has been undertaken; b) Any other treatment unlikely materially improve reverse alleviate impact if it’s not; c) Impairment persists lifetime regardless individual circumstances restrict access proposed section defines “appropriate treatment” as evidence-based reliably expected material improvement reverse alleviation regularly Australia However provided that Treatment may be appropriate irrespective person financial geographical location Legal practitioners have expressed concern about imposing barriers on participants appears assume different options accessible affordable Rather applying objective standards individuals otherwise eligible but unable access supports they need For example regional remote area where appropriate treatment available capital city They might afford travel time off work This could First Nations people disadvantaged economic backgrounds residents limited understanding services how others living in regions Remote areas Practitioners therefore concerned discriminatory effects warrant detailed analysis impacts potential mitigations prior inclusion this

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

The Law Council recommends that proposed section 25A(2) is withdrawn as it likely to result in unfairness.

Practitioners further note current or prospective participants might feel pressured due to risks involved with surgical or pharmaceutical interventions despite personal circumstances; they may demonstrate having undergone all ‘appropriate’ treatment which contradicts principles underpinning choice & control within NDIS and recognition from CRPD regarding autonomy rights along physical/mental integrity.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

balance fraud mitigation with the provision of sufficient time for applicants/participants to submit necessary claims.

Conversely, Schedule 3 Part 3 extends the timeframe for decision-making on access criteria requests under section 20(2)(a)

oftheNDISActfromto days.This means that NDIA would have much longer respond plan reassessment request(often called change circumstances application), whichisonly mechanism available participants urgentchange funded supports This could place vulnerable at increased risk harm before they are able toaccess those without justification provided in explanatory memorandum Practitioners expertise area emphasise this additional timelies threshold(i.e a Yes/No decision whether conduct plan reasess not itself.NDIA workflow or resourcing issues should be addressed separately legislative changes any Act.

Ministerial powers

TheBill generally increases relianceMinisterialpowers achieve large scale significantchangesNDS budget support spendingbylegislative instrumentThis includes:

• newsectionwould enable Minstake determination way legislativeinstrument reduce funding groupssupports purposes ensuring financial sustainabilityofNDI; schedulePart5newsectionA(3) enablingministerto make alterations method work outalteration by legislativewhen participant’sold frameworkplan renewed force law; and scheduleincluding- nexctionwhich enables minister determine indexationfactor oldframeworkplansand -section45Cenabling ministeer determinemaximum amountmethod determining maximumamount acquisition provision of NDISsupport (or class Supports). in particular we concerned about schedule 1 Part as it would reducethroughout entire categories rather than assessment such changes since apply wholeclass persons subject merits review Affectedparticipants therefore have no effectivemechanism challenge supportdeterminations The determinations also, minimum disallowable instruments lack judicial parliamentary scrutiny particularly concerning breadth Minister discretion afforded that participants some most vulnerable members Australian community. 20 Note extended timeframes provided under statutory frameworks for other groupssuch veterans reflect their age defence warcaused disabilities For example there is month timeframe claims certain benefits allowances sections Entitlements Act Cth.\Explanatory Memorandum, Safeguarding the NDIS Future Generations Bill

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

Changes to reasonable and necessary supports

• There is concern about serious risks when changes occur without proper consideration.
  • Although new subsections require safety considerations under proposed Section 50A(3), they do not mandate individual circumstances nor broader impacts on affected cohorts,
  • New Subsection allows Ministerial power through legislative instruments over funding amounts, intensity levels, ratios within framework plans; Practitioners express concerns regarding absence of recourse provisions impacting families relying heavily upon certain streams like community participation funds living at home.

The legislation does not include prior consultation with participants or representatives before renewal; this broad-brush cut may affect enjoyment rights outlined in CRPD including accessibility, security person, independent living etc., The Explanatory Memorandum provides an example where a reduction could be made but it should also ensure measures are least restrictive available.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

Impact Concerns Regarding Provisions Failing To Recognize Indirect Needs Arising From A Person’s Disability And Imposing Additional Hardship On Persons Facing Intersectional Barriers

Practitioners express concern about these provisions in Schedule 9A of Part IIIB of Division IIII of the Act. These measures fail to recognize indirect needs arising from disabilities, impose additional hardship on persons facing intersectional barriers, counter Article 6(1)(b) CRPD, difficultly satisfy “arising directly” test especially with multiple co-existing conditions like clinical supports at health boundary such pressure wound management or PEG feeding where it is often impossible to distinguish cause-effect relationship between impairments leading up a particular support need under proposed reform disallowance if impairment arises due to preexisting condition will have significant impacts affecting individuals and medical professionals differentiation difficult/impossible.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

people with disability “little choice and no certainty of access to appropriate supports”. It might also result in practical confusion about the suitability (and availability) of different schemes for different participants, and lead to increased administrative burden and costs for participants.

41: The serious risk of vulnerable Australians being unable to comprehend which support scheme is more appropriate for them might be abated by shifting the burden of application for assistance from claimants to the NDIA itself. The NDIA could enter into arrangements with other providers to enable cross-claims upon those other providers on behalf of NDIS claimant clients.

42: If this amendment proceeds, we recommend that the NDIA be required to bolster cooperation and collaboration between schemes so that participants are directed expeditiously to the most suitable scheme. For example, this could be via a referral pathway to avoid participants re-applying afresh if their NDIS access request is denied, reducing waiting times for individuals who may require necessary and/or life-saving supports.

43: It follows that current participants who may lose eligibility due to these amendments should be prioritised. We also recommend that after consultation with representative groups, accessible materials explaining clear criteria must explain clearly how people can qualify under various schemes; additionally redirecting disabled persons across federal-state-and territory-schemes requires redistribution reallocation resources accordingly.

Retention of records

44: Schedule 2 Part 4 would introduce robust requirements requiring both participant-providers retain evidence related payment amounts. While Law Council understands stringent provider needs measures may burden NDIS-participants especially without self-managed plans;

45: New proposed section (5) will require NDIS-participant claims keeping record relating provision three years or shorter period prescribed by rules insufficient guidance specific records detail level unclear whether “records” refer invoices includes shift notes rosters as evidence relates payment amount Additionally long term administratively burdensome on disability.

Penalties & Powers

46: Schedule expands NDIA monitoring investigative powers combat low mid-level fraud non-compliance not warrant criminal investigation new civil penalty provisions parallel existing offences intended deter providers from unlawful conduct penalties do apply redacted Productivity Commission Disability Care Support Inquiry Report August 10th 2011).

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

To participants and their families or nominees. However, as the bill recognises any investigation will likely involve them further safeguards should be considered to ensure ndis participants are not disadvantaged by application these provisions given they uniquely vulnerable group.

Automated decisions

• Schedule part of this would insert new section entitled “Automation administrative action” that authorise NDIA use computer programs perform various actions including making decision requiring evaluative judgments exercise discretion formation particular state mind anything else specified minister in delegated legislation). Automated decision without clear effective immediate appeal/review rights those adversely affected antithetical rule law respect: a Proposed subsection 59B(5) deem automated taken CEO Department Health, Disability Ageing have jointly submitted Committee result provision merits judicial review rights under Act continue apply irrespective whether human made process).b However significant concerns raised other submissions use permitted depart established principles oversight review particularly its use require evaluative judgment discretion limitations resulting from substitution power measures framework effect limiting access external merits review.)

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

(c) There is a substantive issue with judicial review of automated decisions raised bysuchdecisionsarenotactually“decision”forthepurposesofjudicialreview(aconsequencethat couldflowfromthemajorityjudgmentinPintarich). Aseriousaccountabilitygapexists thatwillneedtobeadressedbylegislation. TheassertioninthExplanatoryMemorandumthatavailabilityofjudicialreviewis unaffectedbystheseamendmentsdoesnothingtoresolvethissquestion.Untilitistaddressed \nyylegislaturegenerallapplication,mayneedeaddressedbythereinsertionofofficientadditional\x9creviewsprovisionsBills suchastheBillthesubjectofthispresent inquiry.Itivitalimportantthenewlawssuchas thisdonotunderminetheestablishedmecanismojudiciarereviewogovernmentdeci sions.(d)Legislativepowerautomateddecisionsshouldreflectleveldiscretion or judgementrequired, and prohibit automation where discretion largely unfetteredand judgements involvesconsiderationparticipant’sindividualcircumstances. Proposedsubsection59(4)(appears tobe inconsistentwith thisapproach).

51.In the timeframes available we have not had sufficient opportunity consider these measures in detail seek expert input which again reinforces our strong recommendation at outset of submission about need for adequate scrutiny consultation processes

Schedule3Part2 Bill provides express authority underpin NDIS administration evaluativautomationauthorise automatedplanning assessment tools like i-CAN In addition concerns previously raised by legal profession over automatetools new framework planning process it is important that use automatictools be carefully considered light findings Royal Commission Robodebt Scheme.

TheBilldoes atleast follow RoyalCommissionrecommendations anyuse automatexpressly authorised primary legislation However limitedtimeavailable practitioners identified following further concerns whether automation will employed safe consistent transparent accountable way Itis importanaddresstheseconcerns given participants face significant health wellbeing risks from misaligned access plan determinations Those concern include: a)Consequences non-compliance:Proposedsections (3) provide failures take “all reasonable steps” notify personofthe PintarichvFederal Commissioner Taxation [2018] FCAFC79 See VLRC AI Victoria Courts Tribunals Report October Ng and Maria O’Sullivan Deliberation Automation When Decision Australian Journal Administrative Law Weatherall et al AutomatedDecisionMaking New South Wales Mapping Analysis Use ADM Systems State Local Governments ResearchReport ARC Centre Excellence onAutomatedDecision Making Society March 2024(Submission, March NDIs rules publicconsultationonnewframeworkLawCouncil Australia Vol.1.RoyalComissionintoRobodebtschemeFinalJuly Safeguarding the NDIS for Future Generations Bill

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

automation of an administrative action do not affect the validity of the action taken by the operation of a computer program under an arrangement under subsection 59B(1). This provision would insulate non-compliant automated decisions from challenge on grounds of procedural invalidity, contrary to the stated objective of ensuring accountability and preserving review rights. The Committee may wish to consider the desirability of a sunset clause on these sections, or a qualification that ensures these sections do not apply in circumstances where non-compliance is systemic or reflects a fundamental defect in the automated program. (b) Expanding the scope of automated decisions: Proposed section 59B(4) permits automation of discretionary, evaluative, and state-of-mind decisions, referred to as “evaluative administrative action”. Proposed section 59D seeks to safeguard this ‘administrative action’ with a requirement that any standard operating procedure instrument must be “sufficiently objective”. We suggest: (i)section 59D should be amended to require that the instrument be simply“objective”,orthatit“Involves factual determinations ora rithmetic calculations suitable tobe performedbyacomputer”; (ii)ssubsection 59D(4)shouldrequirethatanycomputersprogrammustreachanevaluativeterminationonlyas outlinedinthestandardoperatingprocedure,nottjustoperateconsistentlywith it;mandated human oversight fordecisionsmateriallyaffectingparticipants’ lives would provide agreater safeguard,via themandatory inclusionof business rules thathangovernhuman intercessionoreviewand (iv)theadvisoryCommitteemayalsowishtoconsiderarequirementformandatory consultationw ithDisabilityRepresent ativeOrganisationsanda ndProvider Representative Organisat ionswhenthen DIACEOexercises these powers. c) TransparencyandscrutinyParliamentwillbeanabletodisallowthestandard operatingsprocedur einstrumentsinprop osedsectionS9D.Thesetstruments shou lbedis allow able, orotherwise subjecttomandatory independent review by an entitysuchastheCommonwealthOmbudsman.Inaddition,p roposed section S9E sho uld bem amendedto requir ethatalnnualreportinclude data on thenotalnumbers ofautomatedactionsparticipantcomplaints,the median lengthoftimetakentomake asubstituteddecisionfollowingacom plaint,and anyexternalauditfindings.(d) Awarenesso freviewrights:Proposedsction5 9 E(4)o nlyrequiresdisclosure o fautomationwhereanotice isalreadyrequired,butfallsshortofi mposinga standalone notification obligation andane xpressrighttorquest human reconsiderationoffany automatedre viewabledecisionwouldbemo retransparentande nsure thereview rightsofparticipantswho mayhavelimiteddigitalliteracyandgreater accessneeds.Safeguarding the NDIS for Future Generations Bill202612

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

(e) Independent Oversight: The recommendation from Recommendation 17.2 of the Royal Commission Into The Robodebt Scheme was that a body should be established with power over monitoring or expanding an existing body’s ability within automating decision-making processes. As this has not been implemented yet, as per Part Two does not prescribe any process through which parties have rights regarding designated complaints or referrals about patterns related systemic inaccuracies in automated decisions making. This issue is also one appropriate consideration to make by Administrative Review Councils. 54 Overall automation of relevant support-related decisions compounds accountability and human right risks already presented due changes described above.

Suspension Power And Removal Of Review Rights

Proposed Section 40A provides NDIA CEO may suspend participant’s plan if contactable subject certain conditions This provision would disproportionately affect cohorts people such as those psychosocial impairments English second language who do not access telephone calls emails extraordinary punitive vulnerable participants whose plans revoked unnecessarily forced review order restored Consideration given requiring reasonable inquiries family noted supports ascertain whether requires referral other services enable response information/report requests In addition, bill removes NDIS participants’ rights under subsection(4).

For example: A decision made under section (4) no longer reviewed for purposes Act statutory “Safety Net” where fails make reassessment decision timeframe provided under act Without time further it critical that review appeal rights particularly the administrative tribunal should unduly limited either directly changing discretion afforded delegates following use automatic tools New Framework Planning We are unable comment Schedule Bill relates new framework planning available refer Committee our submission Department Health Disability Ageing March Law Council Australia NDIS rules public consultation on new framework Submission March Safeguarding The NDIS Future Generations Bill

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

Transitional provisions

• Schedule 5, Item 1 confers broad power on Minister via legislative instrument modifying operation or repealing amendments in bill within one year.
• We are concerned that circumstances under which such powers may be exercised lack appropriate constraints per primary legislation’s rule-of-law perspective and Henry VIII clause vesting executive with amending authority without parliamentary oversight would not be desirable if used as Court decisions dictate leading towards legal uncertainty regarding scheme administration; The caveat rules prescribe transitional matters is insufficient safeguard against misuse.

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission 1731

Administrative Review Tribunal³⁷and putting additional pressure on the courts. A justice impact assessment mechanism would oblige the Government to identify such impacts in advance and help it to respond appropriately.

Recommendations

The Law Council recommends that:

• The Bill be subject to further adequate consultation, in line with requirements disabled people’s rights under international law; The CRPD; recommendations from the NDIS review process and disability Royal Commission;
• The definition of “appropriate treatment” proposed section 25a reconsidered as it may discriminate against applicants who cannot access relevant treatments due financial or geographical barriers; to participants since they are unfair to them; Ministerial powers Schedule Part 4 and Schedule should either removed from bill or made disallowable Parliament); the definition “reasonable necessary supports” proposed Section whole-person approach determining support provision consistent caselaw; schedule which tightens eligibility amended require more NDIA referral pathways guidance materials avoid risk return pre-NDIS system; necessary record keeping burden Participants; payments schedule better account individuals’ circumstances aligned closely those Social Security Act (Cth)); Access decisions result than other types – see Law Justice Foundation NSW, I have given up without An evaluation program legal services Report June). Safeguarding Future Generations Bill

• clear and immediate appeal rights be inserted into the provisions of the Bill
• relating to automated decision making in line with the recommendations of the Royal Commission into the Robodebt Scheme, to uphold administrative law principles of oversight and review;

bodies such as the Commonwealth Ombudsman and Administrative Review Tribunal should be empowered to notify the NDIA of potential systemic issues with automated decisions, an issue which is also appropriate for consideration by the Administrative Review Council;

care be taken to make potentially significant decisions, such as under proposed section 48(4), reviewable by the Administrative Review Tribunal;

commencement of the new provisions be aligned with that of the Thriving Kids foundational supports;

further provision be made for legal assistance funding to address the increased unmet need that is likely to result from the amendments in this Bill, and the impact on the Administrative Review Tribunal and the Federal courts of the changes in this Bill be properly considered. Contact Please contact redacted if you have any questions about any aspect of this submission.