Joint submission by the Department of Health, Disability and Ageing and the National Disability Insurance Agency to the Senate Community Affairs Legislation Committee (Provider advocacy) | External submission

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Submission 247

National Disability Insurance Scheme

Amendment (Securing the NDIS for

Future Generations) Bill 2026

Joint Submission by the Department of Health, Disability and Ageing and the National Disability

Insurance Agency to the Senate Community Affairs

Legislation Committee

Submission 247

Table of Contents …………………………………………………………………………………………………… 2 Abbreviations and acronyms used in this submission …………………………………………………… 3 Introduction …………………………………………………………………………………………………………… 4 Substantially Reduced Functional Capacity ………………………………………………………………… 4 A focus on function rather than diagnosis …………………………………………………………….. 5 Permanence ………………………………………………………………………………………………………….. 6 Access to treatment ………………………………………………………………………………………….. 7 Circumstances in which an individual is taken to have undertaken all appropriate treatment ………………………………………………………………………………………………………… 7 Individual choice and autonomy …………………………………………………………………………. 8 Access to other service systems ………………………………………………………………………………. 9 Support Determinations …………………………………………………………………………………………… 9 How support determinations operate …………………………………………………………………… 9 Safeguards ……………………………………………………………………………………………………..10 Reductions to social, civic and community participation and capacity building daily activities support budgets ………………………………………………………………………………….11 Fraud and Integrity Measures …………………………………………………………………………………..12 Safeguards ……………………………………………………………………………………………………..13 Automation of Administrative Action ………………………………………………………………………….14 Designated provisions ………………………………………………………………………………………14 Safeguards applying to automation of administrative action ……………………………………15 Review rights …………………………………………………………………………………………………..17 Appendix 1 – New instrument making powers …………………………………………………………….18 Appendix 2 – Support Determination Process …………………………………………………………….20

Submission 247

Abbreviations and acronyms used in this submission

Act means the National Disability Insurance Scheme Act 2013
Bill means the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026
CEO means Chief Executive Officer of the National Disability Insurance Agency
Department means the Department of Health, Disability and Ageing
NDIA means the National Disability Insurance Agency
NDIS means the National Disability Insurance Scheme
NDIS Review means the 2023 Independent Review into the National Disability

Insurance Scheme

NDIS Rules means rules made under section 209 of the National Disability Insurance

Scheme Act 2013

Old Framework Plan Determination means the National Disability Insurance

Scheme (Old Framework Plan) Determination 2024

SOPI means a standard operating procedure instrument made under section 59D of the Bill

Submission 247

Introduction

The Department of Health, Disability and Ageing and the National Disability Insurance Agency

welcome the opportunity to make a joint submission to the Senate Community Affairs Legislation Committee in relation to the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026.

On 22 April 2026, the Australian Government announced changes in the 2026-27 Budget to protect the NDIS for people with significant and permanent disability and for future generations who will rely on it. On 14 May 2026, the Bill was introduced to the Parliament, with the intent of addressing two key vulnerabilities – scheme sustainability and fraud. In addition, the Bill makes several technical amendments to improve the operation of certain aspects of the Act. It draws on independent reports, including the NDIS Review conducted in 2023 and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, which ran from 2019 to 2023.

Since the introduction of the Bill, feedback received from the disability community has identified several areas of complexity or concern. This submission addresses the following recurring themes:

Part 1 of Schedule 1 of the Bill which introduces a definition of functional capacity.
Part 8 of Schedule 1 of the Bill which clarifies the definition of permanence by introducing the concept of ‘all appropriate treatment’.

• Part 4 of Schedule 1 of the Bill, which facilitates the creation of support

determinations to effectively target and tighten the funding of supports for old framework plans.

Schedule 2 of the Bill, which introduces strengthened fraud measures to safeguard participants from exploitation, abuse and neglect.
Part 2 of Schedule 3 of the Bill, which establishes a framework for the automation of administrative action within the NDIS.

The submission also seeks to assist the Committee by including a summary of instrument making powers under the Bill (Appendix 1) and a diagram demonstrating the support determination process (Appendix 2).

Substantially Reduced Functional Capacity

The Bill provides a new definition of functional capacity, which is the first step in implementing a more consistent and robust approach to assessing substantial reduction in functional capacity in the process for determining eligibility for the NDIS. This definition will allow the Minister to make category A NDIS Rules and develop a robust framework to define and determine thresholds for substantially reduced functional capacity to determine NDIS access.

To be eligible for the NDIS under the disability requirements, a person’s impairment or impairments must result in substantially reduced functional capacity in at least one key activity. Activities include mobility, communication, social interaction, learning, self-care and self management.

Currently the Act does not define the concept of substantially reduced functional capacity, and it is not well understood in the community or among service providers. It has not been applied

Submission 247

consistently in decision making, which has led to unfair outcomes and significantly contributed to the unsustainable growth of the NDIS.

This was a key finding of the NDIS Review: that access is inconsistent, inequitable, and not always targeted to people with disability who require the most support (see Action 3.1). By standardising the access approach, NDIS entry will be more consistent and equitable and ensure the NDIS is there to support the people for who it was intended.

A focus on function rather than diagnosis

The proposed definition of functional capacity relates to a participant’s ability to undertake an activity without assistance from other people, assistive technology or modifications and in a setting that excludes as far as possible, environmental and personal circumstances. This definition will confine assessment to a person’s intrinsic ability to undertake an activity.

There will be no immediate impact of the new definition of functional capacity as it is in line with how functional capacity is currently treated in practice. A definition of functional capacity is necessary to allow for a consistent approach in assessing substantially reduced functional capacity for the purposes of accessing the NDIS. New category A NDIS rules will prescribe methods and criteria to set thresholds relevant to the assessment of functional capacity. These rules will be developed with expert advice and consultation and are expected to begin from 1 January 2028.

Once established, the new functional capacity assessment framework will focus on the impact of an individual’s impairment. This will facilitate a move away from a reliance on access lists, which were intended to be used as a temporary measure by the NDIA during the initial rollout of the NDIS transition. Diagnosis is an inaccurate and inconsistent proxy for assessing functional impacts. This approach aligns with recommendations in the NDIS Review and is in line with the United Nations Convention on the Rights of Persons with Disabilities.

The Government’s approach to defining functional capacity reflects an intentional alignment with the World Health Organization’s International Classification of Functioning, Disability and Health Framework (ICF), which distinguishes between “capacity” and “performance.” Under the ICF, capacity refers to an individual’s ability to execute a task or action in a standardised or controlled environment, whereas performance reflects what a person does in their actual lived environment, including the influence of supports, assistive technologies, and other contextual factors.

The adoption of a capacity-based  definition  is intended to establish a consistent and

comparable baseline for assessment across individuals. By focusing on a person’s underlying functional ability in the absence of variable supports, the framework seeks to minimise the impact of external factors such as differences in access to services, assistive technologies, informal supports, or geographic location. This approach supports greater consistency in decision-making, ensuring that individuals with similar levels of intrinsic functional limitation are assessed on a comparable basis. By separating intrinsic ability from environmental advantage or disadvantage, the model aims to avoid inconsistency of outcomes. In particular, the model seeks to avoid the situation where individuals with greater access to supports may appear to have higher functioning than those without, despite having similar levels of functional impairment.

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A number of stakeholders have raised concerns about how this approach interactions with the social model of disability, which emphasises that disability is shaped not only by impairment but by the interaction between individuals and their environments.

The use of a capacity-based definition is consistent with established international frameworks and supports standardisation in assessment for NDIS access. Subsequent needs assessment

and budget-setting processes are intended to  reflect an ICF-aligned understanding  of

performance. This will ensure that the impact of environmental and personal factors, including supports and assistive technologies, is appropriately considered in determining the nature and level of supports required, consistent with the broader social and environmental dimensions of disability.

A Technical Advisory Group will be established to provide advice on appropriate assessments and thresholds for substantially reduced functional capacity, informed by consultation with the community and states and territories. Advice from the Technical Advisory Group will inform NDIS rules which will, among other things, set out the methods or criteria to be applied for the purposes of determining a person’s functional capacity. This will include classifications or thresholds relevant to an assessment of a person’s ability to undertake a specified activity.

Permanence

The Bill also clarifies the interpretation of ‘permanence’ in relation to significant and lifelong disability and strengthens the operation of the permanence criteria in determining whether an individual meets the disability or early intervention criteria to access the NDIS.

For a person to meet the disability requirements, they must have an impairment or impairments that are, or are likely to be, permanent. Similarly, to meet the early intervention criteria (unless the person is a child with developmental delay) a person must have an impairment that is, or is likely to be, permanent.

The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules) set out (among other things) how to determine whether an impairment should be considered permanent, or likely to be permanent. Specifically Rule 5.4 provides that an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. The terms ‘available’, ‘appropriate’ and ‘evidence-based’ have not been clearly defined.

The current legislative framework lacks clarity in how to determine whether an impairment is permanent for the purposes of NDIS access. Recommendation 3 (action 3.9) of the NDIS Review highlighted this issue, recommending legislative change to strengthen the operation of the permanence criteria.

To address this, Part 8 of the Bill inserts an approach to assessing permanence of impairments when determining whether a person meets the disability requirements or early intervention requirements. The Bill clarifies the definition of permanence by introducing the concept of ‘appropriate treatment’.

To improve transparency and consistency of delegate decision making under the NDIS Act the Bill clarifies how permanence is to be assessed. This subsection outlines that:

Submission 247

An impairment or impairments are not permanent or likely to be permanent unless a person has undertaken all appropriate treatment for an impairment or impairments.
An impairment cannot be found to be permanent if there is any other treatment which is likely to materially improve, reverse, or alleviate the impact of the impairment or impairments.
To be found permanent, the person’s impairment or impairments are likely to persist for the person’s lifetime. This means that the person’s impairment or impairments cannot be reversed or remedied and will continue to exist throughout the person’s life, regardless of treatment undertaken or the passage of time.

The Bill also clarifies that a person may require ongoing treatment for some permanent impairments to maintain functional capacity in relation to an activity, even if the person has undertaken all appropriate treatment. This will allow a person to access the NDIS so long as they meet the other access criteria.

Access to treatment

Since the introduction of the Bill, the department has heard community concern that these changes may lead to delays or restrictions to NDIS access due to challenges with access or availability of treatment.

When considering whether ‘appropriate treatment’ exists for the purposes of the permanence test of a person’s impairment, the Bill provides that a person’s financial and geographical circumstances are not considerations.

This Bill clarifies that all treatment options within established and recognised clinical practice in Australia are relevant. This includes treatments funded through the Medicare Benefits Schedule, the Pharmaceutical Benefits Scheme and public health systems. This is consistent with the original intent of the NDIS and is necessary and appropriate to ensure it operates in a way that is consistent, equitable and sustainable across the Australian population.

Circumstances in which an individual is taken to have undertaken all appropriate treatment

The Bill provides that an individual is taken to have undertaken all appropriate treatment where further treatment cannot be undertaken for medical reasons. This would include where a particular treatment is not recommended for the person’s impairment or comorbidities, or where the likely benefits of a treatment are negligible, highly uncertain, or outweighed by the clinical risk for a particular person.

In addition, the Bill provides that the NDIS rules may prescribe circumstances in which a person is taken to have undertaken all appropriate treatment. This rule-making power is intended to support a clear and consistent framework for determining when an impairment may be considered permanent. The use of rules enables the specification of these circumstances to occur at a level of detail that is not suitable for primary legislation but will be legally binding and publicly accessible.

Importantly, the development of these rules will also take into account medical and ethical considerations – such as individual autonomy and informed consent – while establishing system level parameters around what constitutes reasonable and appropriate treatment. This recognises that, while individuals have the right to make personal decisions about their care,

Submission 247

determinations of permanency need to be grounded in objective, evidence-based, and clinically accepted thresholds.

The rules will be developed over the next 12 months ahead of the 1 January 2028 commencement of Part 8 of Schedule 1 to the Bill. The consultation process in developing them will draw on a range of expertise and perspectives such as:

engagement with clinical experts across relevant specialties to ensure alignment with contemporary evidence, accepted standards of care, and evolving treatment pathways;

• consultation with the disability community, including participants, carers and

representative organisations, to ensure the rules operate fairly in practice and

appropriately reflect lived experience;

input from states and territories, given the interaction between the NDIS and health, hospital and rehabilitation systems.

The development of the rules may also involve input from the Technical Advisory Group, to support the identification of treatment categories, evidentiary standards, and circumstances in which treatment should not be expected.

The department has not identified parameters or principles for the instrument currently. Setting parameters in advance of consultation would risk constraining the development of the rules and embedding settings that are not aligned with current evidence, best practice or experience.

Consistent with current NDIA practice, individuals are not required to undergo invasive or significant medical interventions—such as cochlear implants—to meet access criteria. It is anticipated that the rules will provide further clarity on similar circumstances, while maintaining flexibility to reflect clinical appropriateness and individual circumstances. Consultation and engagement on these rules will occur over the next 6 to 12 months.

Individual choice and autonomy

The department has heard community concern that the proposed permanence test could operate in a way that pressures individuals to undertake treatment, rehabilitation or other interventions to access the NDIS, contrary to their personal preferences or beyond their means.

The Bill does not compel a person to undertake treatment. Individual choice and autonomy are foundational principles of the NDIS, as well as core legal and ethical principles underpinning the health system. Individuals retain the right to decline medical treatment, procedures or rehabilitation, including where such interventions may improve their functioning or reduce the

impact of an impairment. However,  eligibility  for publicly funded assistance should be

determined against clear criteria and aligned with the purpose of the NDIS.

Importantly, the concept of “appropriate treatment” does not mean every possible intervention, nor does it require individuals to pursue treatment that is clinically unsuitable, high risk, or of negligible benefit. Instead, it establishes a consistent framework to determine whether reasonable and accepted treatment options exist that could materially improve, stabilise or alleviate an impairment, or whether a person is otherwise taken to have pursued such options.

The Bill seeks to strike an appropriate balance between the autonomy of individuals to make informed decisions about their own care and maintaining the integrity, consistency and sustainability of the NDIS.

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Access to other service systems

The department is also aware of community concern in relation to changes in the Bill to tighten eligibility to the NDIS where alternative supports are available through other service systems, or where the service system has a responsibility for meeting the needs of a person, such as workers’ compensation or motor vehicle accident compensation schemes. Representations have been made that these changes could affect some people who can access aged care from the age of 50, including First Nations people, from accessing supports.

The changes in the Bill do not affect the flexibility for First Nations people over 50 and persons experiencing homelessness to move between the NDIS and aged care systems. If specific disability supports are not available in a particular location, the individual can choose the service system that more appropriately meets their needs. The intent of the changes in the Bill is to reflect the features of broader government service systems, such as the boundaries with compensation schemes, where individuals are supported through the primary system responsible for their circumstances.

Support Determinations

Stronger funding controls in relation to the funding of supports in old framework plans are required to ensure the ongoing financial sustainability of the NDIS.

Support determinations are legislative instruments that can reduce funding for a specified group of supports in old framework plans. These determinations may only be used for the purposes of ensuring the financial sustainability of the NDIS and cannot be used for any other purpose. The intent of support determinations is to manage overfunding of certain groups of supports, and keep plans aligned with what the elected Government regards is ‘reasonable’ for the NDIS to fund.

Support determinations enable responsible administration  of the NDIS by allowing  for

adjustments to the funding of certain classes of supports that may be overfunded, relative to other social support systems. Providing the ability for the NDIS Minister to address overfunding of a particular group of supports will protect the NDIS from needing broader or more strict interventions. Targeted reductions will reduce pressure across the NDIS while ensuring that supports that are critical to the health and safety of participants are maintained at reasonable and necessary levels.

The use of support determinations is necessarily time limited as they only apply to old framework plans, which will begin to be phased out and replaced with new framework plans from 1 April 2027. While support determinations will not apply to new framework plans, budget rules for new framework plans will build in similar financial disciplines.

How support determinations operate

A support determination cannot take effect partway through a plan. It would be applied at the start of a new plan. This ensures that a participant is aware of the amount of funding in their plan and can plan and organise their supports accordingly. A new plan is one of the following:

A first plan (for new participants entering the NDIS on or after 1 October 2026)
A new plan created through reassessment by a NDIA delegate 9

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A new plan created through the plan renewal process. A support determination operates as an overlay to a new plan. If a plan already had a support determination in place and that plan is reassessed or renewed, the support determination is not considered as part of reassessment or renewal. Instead, when the existing plan is replaced by a new plan through reassessment or renewal, the support determination is applied immediately after. This ensures that support determinations do not have a compounding effect on the funding in a participant’s plan.

Support determinations do not create a ‘gap fee’ that participants will be required to pay. Participants can continue to work with their providers on how to use their budget and get the most out of their supports.

Interaction with Old Framework Plan Determination

The provision of ‘reasonable and necessary supports’ remains key to old framework planning. Section 34 of the Act continues to set out criteria for how to determine whether a support is reasonable and necessary. The Bill provides a new step in the planning process after the criteria in section 34 has been considered.

The Bill provides for a legislative instrument that allows the Minister to set maximum funding amounts, intensity or ratios for individual supports or classes of supports. Once a planning delegate has identified the reasonable and necessary supports, the relevant maximums will then be applied. In some cases, this may mean that there will be a reduction in the amount, intensity or ratio of supports.

These maximums will be set out in amendments to the Old Framework Plan Determination. Maximum amounts will be set with reference to certain kinds of plans or participants. This will allow different maximum amounts to apply to ensure the limitations are appropriately targeted. The instrument will consider peer reviewed and published actuarial analysis and evidence about what level and kind of support is appropriate and beneficial for participants.

A support determination takes effect after all steps in the old framework planning process have occurred, including the application of any maximum amounts set out in the amended Old Framework Plan Determination.

The diagram at Appendix 2 provides an illustrative example of how proposed amendments to

reasonable and necessary supports (Schedule  1,  Part  6)  interact  with support

determinations (Schedule 1, Part 4) and plan renewal (Schedule 1, Part 5).

Safeguards

The Bill requires that the Minister have regard to the safety of participants when making a support determination. The Minister can inform themselves of this in any way that they consider appropriate. At a minimum, it would require advice from the NDIA and from the department about the impacts of the proposed changes on participants and their families and carers. This would consider assessing evidence of the likely impacts on participant health and wellbeing, continuity of essential supports and equitable access to supports. This would include an assessment of system level risks and unintended consequences on vulnerable groups of

participants.  If relevant,  it would also incorporate advice about whether the determination

would have market impacts that could impact the safety of participants in the short and long term.

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Where a support determination would have a ‘more than minor’ impact on individuals, an Impact Analysis will be required in accordance with the Australian Government Guide to Policy Impact Analysis. This would need to be completed before the Minister makes a support determination. All Impact Analyses are published on the website of the Office of Impact Analysis and are publicly available, ensuring accountability and transparency over how policy is developed and the anticipated impacts.

Reductions to social, civic and community participation and capacity building daily activities support budgets

The Government has decided to constrain growth in some support categories that, while important to many participants, are not essential to participant health and safety. The Government has announced its intention to reduce participant budgets for social, civic and

community participation (SCCP) supports and capacity building  daily  activities (CBDA)

supports.

The volume of these supports funded by the NDIS is out of step with other parts of the care and support economy, such as Veterans’ Care and Aged Care. Additionally, there is significant variability between levels of SCCP and CBDA funding in participant plans, with both supports continuing to grow as a substantial percentage of NDIS spend year on year. These significant drivers of NDIS cost growth are not currently reflected in better outcomes for participants. There has also been increased reliance on individualised programs over ones that once provided genuine opportunities for connection and community engagement.

Total spending on SCCP is around $12 billion per year, quadruple the level in 2019-20. In the absence of any action, spending on SCCP is forecast to grow to around $20 billion per year by the end of the decade.

The support determinations measure in the Bill will be used to implement reductions to SCCP and CBDA support budgets. The Minister intends to make a support determination to reduce SCCP budgets by 50 per cent and CBDA budgets by 10 per cent. This determination would apply from 1 October 2026 and be progressively implemented for all participants as plans are reassessed or renewed over a 12-month period.

Critically, participants requiring 24/7 supports will continue to have these provided at all times. The SCCP funding reduction will not impact these critical supports. The department and the

NDIA are working together on implementation of  this measure and  will provide more

information to the Minister following passage of the Bill.

A 50 per cent reduction to a participant’s SCCP budget may not result in a corresponding 50 per cent reduction in a participant’s SCCP spending. This is because participants generally do not use their full SCCP budget (average utilisation is 85 per cent). Participants will still have SCCP funded in their plans and be able to continue to access services. Participants will have the ability to make their reduced SCCP budget go further by choosing to purchase services at a lower intensity, price, or in group settings.

The Government is also establishing the Inclusive Communities Fund, a $200 million grant

program  to  rebuild and  strengthen community-based  supports  for NDIS  participants.

Consultation and design of this fund will inform how community participation activities can best deliver the supports participants benefit from the most.

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For CBDA, a 10 per cent budget reduction may have an even smaller impact on spending as average utilisation for CBDA supports is around 60 per cent. A 10 per cent reduction would see the average participant with CBDA supports funded to access 68 therapy sessions per year, down from 72 sessions. This is still greater than what is funded in other support systems, such as veterans’ care or chronic disease management under Medicare.

These changes will not impact budgets for supports such as:

supports in the home, such as assistance with eating, drinking, dressing, toileting, laundry, cleaning, community nursing care, taking medication
home and vehicle modifications
behaviour supports
personal mobility equipment and transport • consumable products, including those to help with incontinence, nutrition and

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Specialist Disability Accommodation. Participants will still be able to request a plan reassessment, including for their SCCP and CBDA budgets where there has been a significant and ongoing change in their circumstances. The NDIA will conduct a plan reassessment to determine a participant’s reasonable and necessary supports. This could lead to an increase in their plan budget, with the 50 per cent SCCP reduction and 10 per cent CBDA reduction reapplied against their revised budget.

The NDIA also retains the ability to conduct a CEO initiated plan reassessment. For example, this might occur where the NDIA becomes aware of a change of circumstances or where there is information to indicate the participant may be at risk.

For more urgent and unforeseen circumstances, the NDIA can conduct a plan variation. For instance, where a participant is admitted to hospital and requires more intensive, short term supports upon discharge to attend medical appointments or collect medications, the NDIA can add funding to a participant’s plan without the need for a full reassessment.

Fraud and Integrity Measures

The NDIS is a program of significant scale, complexity and public expenditure. Instances of fraud and non-compliance undermines the social licence of the NDIS and have a direct impact on the lives of participants and their families, leading to lower quality services, exploitation, and harm.

The department, the NDIA and the NDIS Commission recently made a joint submission to the Integrity of the National Disability Insurance Scheme inquiry being undertaken by the Joint Standing Committee on the National Disability Insurance Scheme. That submission sets out in detail the fraud and integrity risks faced by the NDIS and the steps have been taken to address those risks. This Bill is the next step in the improvements being made to integrity in the NDIS. The extension of investigation, monitoring and enforcement powers in this Bill will enable the NDIA to move beyond reliance on voluntary compliance and establish an enforceable fraud and integrity framework.

The Fraud Fusion Taskforce (FFT) is an interagency body established to combat fraud and criminal activity in Government payment programs, including the NDIS. At a systemic level,

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the FFT has identified eight patterns of recurring deficiencies that have enabled high levels of fraud and abuse within Government Payment Programs, all of which were relevant to the NDIS.

The measures in this Bill take on board lessons and recommendations of the FFT and build on integrity related amendments implemented through the National Disability Insurance Scheme (Integrity and Safeguarding) Act 2026. The Bill gives effect to ‘identity is not optional’ and ‘verify by default; trust by exception’ by requiring robust identity verification and evidence based claims by plan management providers. This is supported by the requirement to retain certain records and enhanced powers to collect and verify information and the ability to compel the production of documents to substantiate claims. This reduces the reliance on trust-based processes and ensures participation and payments are grounded in verification and evidence to limit opportunities for fraud and misuse.

Additionally, the Bill equips the NDIA with a comprehensive and scalable compliance and enforcement framework. Through expanded monitoring and investigation powers, alongside new tools such as civil penalties, infringement notices, compliance notices and enforceable undertakings. The Bill enables earlier, risk-based intervention and proportionate responses to

non-compliance. These measures ensure  that  prevention,  detection,  investigation and

enforcement operate together as layered controls, allowing the NDIA to identify emerging threats, respond quickly, and contain fraud and error before they escalate into significant harm.

Together with broader market reforms such as expanded mandatory registration requirements for NDIS providers and plan management commissioning models, these initiatives improve visibility, accountability and early risk detection, complementing the legislative measures in the Bill and delivering a whole-of-system approach to strengthening NDIS integrity.

Safeguards

The Bill allows the Minister to determine, by legislative instrument the conditions that must be met by an authorised person, before and during the exercise of investigation, monitoring and enforcement powers in relation to a participant or prospective participant. This will include a risk assessment which considers the circumstances of the participant, the nature of the conduct and the exercise of power.

While  disability alone does  not indicate vulnerability, people  with  disability experience

disproportionately higher rates of violence, abuse, neglect and exploitation. To support the NDIA’s increased regulatory powers, the Bill introduces a statutory requirement to ensure necessary safeguarding procedures are in place for NDIS participants.

Vulnerability may arise from the nature or fluctuating effects of a disability, or from a combination of personal, social, environmental, or situational factors at a given time. A participant’s capacity to engage with regulatory processes may therefore vary, particularly when subject to investigative, regulatory, or enforcement action. Without additional protections for participants, there is a risk that the exercise of regulatory powers could lead to enforcement outcomes that reflect disability related barriers, rather than misconduct, and compromise procedural fairness.

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These statutory duties will guide decision makers in how to exercise regulatory powers with respect to participants but will be proportionate to the burden that it places on the NDIA in exercising regulatory powers.

In addition, certain regulatory responses will only apply to providers. Infringement notices, compliance notices and enforceable undertakings will not apply to participants, prospective participants (where relevant), child representatives or nominees.

Automation of Administrative Action

Each day the NDIA makes decisions that support hundreds of thousands of Australians with disability through activities such as processing claims and developing NDIS plans. Given the volume and importance of these decisions, automating certain administrative processes is necessary for the NDIA to operate efficiently, ensuring critical services and supports can continue to be delivered to participants in a timely manner.

A well-designed automated decision-making system will assist the NDIA in managing the complexity of the NDIS and support a high volume of decisions to be made more efficiently, accurately and consistently. Importantly, well designed automation will lead to improved outcomes for participants, providers and other persons who interact with the NDIS.

While the expansion of automated administrative action offers clear benefits and reflects a broader digital transformation across government, there are understandably concerns within the disability community and beyond. As such, the department recognises that strong safeguards and transparency measures are critical to ensure accountability, maintain public trust in NDIA decision-making and that automated systems are producing accurate and defensible decisions.

Designated provisions

Under the Bill, automated processes can only be carried out under ‘designated provisions’. Four of these provisions are identified in the Bill and additional provisions may be designated under a legislative instrument made by the Minister. Provisions have only been listed as ‘designated provisions’ in the Bill where the end-to-end process for computer-based decision making is clear and there is high confidence that the provision can be automated without compromising the integrity of decision-making under those provisions. The Bill does not designate provisions that are yet to be fully tested to ensure a computer program can be used to make decisions and take actions that are lawful, accurate, fair and consistent.

Over time it may be appropriate to expand the scope of ‘designated provisions’ to other aspects of the Act. The Bill allows the Minister to make a legislative instrument that specifies additional provisions for that purpose. This would only occur where automation could support the more effective and efficient operation of the NDIS, in turn benefiting participants, providers and others that interact with the NDIS.

The  Bill requires the Minister to consider whether  it is appropriate to specify additional

provisions where those provisions may require the decision-maker to exercise a discretion, an evaluative judgement or form a state of mind. This ensures that automation of evaluative administrative action is only expanded following a considered, reasoned assessment at the ministerial level.

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While the Bill does not direct how the Minister is to consider whether additional provisions should be specified as designated provisions, it is expected that the Minister will look to balance administrative efficiencies against various risk factors and safeguards. Advice on the appropriateness of specifying additional provisions will be provided by both the NDIA and the

department. Consistent  with the Commonwealth Ombudsman’s  Better  Practice Guide:

Automated Decision Making (March 2025) advice provided to the Minister will have regard to:

administrative law requirements of legality, fairness, rationality and transparency;
privacy, data security or other legal requirements (including human rights obligations);
accurate and consistent decision making; and
the promotion of public confidence in government administration. Advice provided to the Minister might include advice relating to system design; governance

arrangements; testing and assurance processes, including how risks of error, bias or

unintended consequences have been identified and mitigated; the extent of human oversight

and review mechanisms, and whether  appropriate  monitoring,  auditing and  reporting

frameworks are in place to ensure ongoing compliance, accountability and continuous improvement in automated decision-making and; recommendations in regards to trial and adoption of related technological advancement.

The legislative instrument is subject to parliamentary scrutiny and disallowance processes. This provides further checks and balances on the scope and use of automated powers and ensures automation cannot be expanded unilaterally and without appropriate justification.

Safeguards applying to automation of administrative action

The  Bill implements a range  of safeguards  that govern when and how automated

administrative action can occur, which, when taken together, form a layered and interwoven framework for safe, transparent and accountable decision making. These safeguards address key risks which may be associated with automated administrative action, including invalidity, opacity, and lack of accountability or oversight.

Accountability and Oversight of the CEO

The Bill provides that the CEO may arrange for the use, under the CEO’s oversight, of computer programs to undertake administrative action under designated provisions. These arrangements must be done in writing. The power to arrange for the use of automation is not delegable to any other NDIA official ensuring the highest level of oversight and accountability. A written record of arrangements made by the CEO ensures appropriate accountability, responsibility and record-keeping for the use of computer programs taking administrative action.

The form of a written arrangement is not prescribed in the Bill, however, at a minimum, it is

expected  that  such  arrangements  will  specify  the  relevant  provisions  under  which

administrative action is to be automated, the person or class of persons who would ordinarily perform that action (being a delegate of the CEO), and confirmation that the CEO retains oversight of the computer program. The content and level of detail contained in the written arrangement will vary depending on the nature, complexity and risk profile of the provisions being automated, ensuring the arrangement is sufficient to support effective oversight, accountability, transparency and review.

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The  Bill also requires that the CEO must take  all reasonable steps to ensure that any

administrative action taken through the operation of a computer program is action that could have been validly taken by a human under the Act. The Bill allows the Minister to make a legislative instrument specifying actions that must be taken by the CEO to establish that the CEO has taken ‘all reasonable steps’. Reasonable steps may include actions such as seeking legal advice to confirm that business rules are appropriate and conducting quality assurance activities and testing.

These safeguards ensure that automation cannot expand or distort statutory powers and helps to mitigate against one of the central risks of automated decision-making—namely, that systems may apply incorrect rules or produce invalid outcomes at scale.

Evaluative administrative action and Standard Operating Procedure Instrument The Bill would allow the CEO to authorise the use of computer programs for administrative actions that may or must be taken by the CEO under the designated provisions. This would include decisions that would require the CEO to exercise a discretion, an evaluative judgement or form a state of mind. The Bill refers to these actions as evaluative administrative actions or evaluative determinations.

To ensure that the computer program does not fetter the discretion of the decision-maker, the Bill requires the CEO to make a standard operating procedure instrument (SOPI) when arranging for the use of a computer program to undertake evaluative administrative action.

A SOPI will assist with the automation of discretionary or evaluative decisions by identifying, based on objective criteria, circumstances that can safely be automated, and circumstances that would continue to require consideration by a human decision-maker. Importantly, a SOPI will ensure that where automated decisions or actions cannot be based on objective criteria, those circumstances would be for human consideration.

For example, a SOPI may allow the automated approval of low-value, routine claims for assistive technology where clearly defined criteria are met, such as the item being below a specified cost threshold, included on a pre-approved list, and consistent with an existing participant plan. In these circumstances, the evaluative judgement has been standardised into objective rules reflecting how a human decision maker would ordinarily decide straightforward cases. Where those criteria are not met, such as where the item is higher value, not pre

approved,  or  inconsistent  with  the  participant’s  circumstances,  the  matter would be

automatically referred to a human decision maker. This ensures automation is confined to predictable, low-risk scenarios, while preserving human judgement for more complex or discretionary decisions.

In specifying circumstances for the purposes of a SOPI the CEO must be satisfied that the instrument directs evaluative decision making in a way that is consistent with how the CEO would make that decision. In addition, the CEO must be satisfied that the circumstances to be automated are sufficiently objective in nature, such that existence or non-existence of such circumstances can be ascertained by the operation of a computer program.

Substituted administrative actions

Where the CEO is satisfied that an automated process has not produced the correct or preferrable outcome or decision, the Bill enables the CEO to override that process by

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substituting a different outcome or decision. Examples of where this discretion may be exercised might include where the automated process has relied on incomplete or inaccurate data or where relevant information was not captured or properly interpreted by the system. It may also be used where new or updated information becomes available after the automated decision has been made, or where a systemic issue with the automated process is identified that affects the integrity of decisions.

Enabling a human decision-maker to substitute administrative action in place of computer made decisions could provide a separate avenue for errors to be corrected, in addition to any merits review process. A substituted decision does not impact a person’s right to seek review or reconsideration of an administrative action.

Transparency

The Bill establishes additional transparency requirements relating to notification, publication and reporting about automated administrative action.

Where the Act requires a person to be notified of the outcome of a decision, the Bill requires that person also be notified if the decision was made by a computer program. This promotes transparency and procedural fairness by ensuring that participants are aware of how a decision was reached.

In the interests of public accountability, the Bill requires the CEO to publish a statement on the NDIA’s website setting out that the CEO has arranged for the use of computer programs to take administrative action and the specific legislative provisions over which the arrangement

applies.  This promotes  public confidence  in NDIA  administrative  decision making by

demonstrating that automation is being implemented in a transparent and controlled manner.

The Bill also requires the CEO to include information relating to the use of automated administrative action in the NDIA’s annual report. Specifically, the annual report must include details of the kinds of substituted actions taken by the CEO and kinds of administrative actions taken by a computer program that were not correct or preferable.

Review rights

Under the Bill administrative action taken by operation of a computer program under the automation provisions is treated, for all purposes, as administrative action taken by the CEO. This preserves transparency and accountability mechanisms including access to review mechanisms that would ordinarily apply if the CEO, rather than a computer program, had taken the administrative action.

Therefore, the merits and judicial review rights that would ordinarily apply to a decision under the Act will continue to apply irrespective of whether the decision is made by a human or by automated processes. If there are no merits review rights that attach to a particular automated action under the Act, the Bill does not create merits review rights for that action, although it would remain open to the CEO to make a substituted decision.

By ensuring automated administrative action does not diminish or modify existing review rights in any way, the Bill ensures procedural fairness is not disrupted and participants can continue to challenge reviewable decisions, including those that may result from computer system errors.

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Appendix 1 – New instrument making powers

Bill Part and Schedule  Provision     Description                                        Type of     Commencement

instrument

Decision-making on      Subsection    Allows the Minister to determine NDIS pricing arrangements,    Legislative   As soon as possible

pricing                 45C(1)        having regard to advice provided by the NDIA. The instrument   instrument     after commencement

Part 1 of Schedule 3                            will allow NDIS pricing documents to be incorporated by                          of Bill.

reference as in force or existing from time to time.

Decision-making on      Subsection    Allows the Minister to determine an indexation factor and        Legislative   As soon as possible

pricing                  34B(2)       method to apply to classes of supports in old framework plans.  instrument     after commencement

Part 1 of Schedule 3                 The Minister may only make this instrument if also increasing                    of Bill.

prices through an instrument made under subsection 45C(1).

Decision-making on      Subsection    Allows the Minister to issue a direction to the NDIA on how it     Legislative   As soon as possible

pricing                  121(1)        performs its pricing advisory function (including timelines,       instrument     after commencement

Part 1 of Schedule 3                   conduct of annual pricing review including consultation, approval                 of Bill.

requirements for changes to documents incorporated by reference).

Civil penalties and       Subsections   Allows the Minister to specify circumstances where it is          Legislative   As soon as possible

regulatory powers      73ZSL and    inappropriate for the NDIA to exercise regulatory powers, as well instrument     after commencement

Part 2 of Schedule 2    73ZSM       as impose requirements on authorised persons before                           of Bill.

exercising regulatory powers.

Retention of records      Subsection   The Rule will specify details about the nature of records required Category D   As soon as possible

Part 4 of Schedule 2     45B(1)         to be held.                                        NDIS rule      after commencement

of Bill.

Support determinations   Subsection    Allows the Minister to determine a percentage funding reduction Legislative    1 October 2026

Part 4 of Schedule 1     34A(1)          for groups of supports. This will apply as participants have their  instrument

plans reassessed or renewed. The Australian Government has publicly communicated its intent to reduce budgets for SCCP supports by 50 per cent and CBDA supports by 10 per cent.

Plan renewal            Subsection    Allows the Minister to determine alterations or the method to     Legislative    1 February 2027

Part 5 of Schedule 1     50A(3)       work out alterations to participant plans as they are renewed. A  instrument

participant’s reasonable and necessary funding decision will be preserved through renewal (excluding any one-off funding).

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Bill Part and Schedule  Provision     Description                                        Type of     Commencement

instrument Alterations may include matters like the application of indexation.

Plan renewal           Subitem 58(4) Allows the Minister to bring forward a participant’s scheduled    Transitional   1 February 2027

Part 5 of Schedule 1                    plan end date if it is after 1 October 2027.                          legislative

instrument

Reasonable and         Subsection    Allows the Minister to update the National Disability Insurance   Legislative    1 February 2027

necessary supports      33(2EA)     Scheme (Old Framework Plans) Determination 2024 made      instrument

Part 6 of Schedule 1 under existing subsection 33(2E) to set maximum amounts, intensity or ratios that could be considered reasonable for the NDIS to fund for specific support types and/or different classes of participants.

Registration of NDIS      Section 10C  As part of reforms to implement mandatory registration, this will Category D   On or before 1 July

providers                                allow amendments to the National Disability Insurance Scheme NDIS rule    2027

Part 1 of Schedule 2 (NDIS Provider Definition) Rules 2018 to specify classes of person or entities that are not a NDIS provider and mandatory registration for platform providers.

Defining functional       Subsection    This will involve repealing and replacing the National Disability  Category A   1 January 2028

capacity                9B(2) and     Insurance Scheme (Becoming a Participant) Rules 2016. This  NDIS rule

Part 1 of Schedule 1      section 27       will remove extraneous provisions that were part of NDIS roll out

and bring existing provisions into line with drafting conventions. The Rule will specify the requirements and thresholds for determining substantially reduced functional capacity.

Tightening meaning of    Subsection    Allows creation of a rule to determine circumstances in which a  Category D   1 January 2028

permanence to reduce   25A(4)        person is taken to have undertaken all appropriate treatment for NDIS rule

access where an an impairment before permanence can be considered. impairment can be treated Part 8 of Schedule 1

Eligibility based on access Subsection    Allows creation of a rule to list other service systems that will    Category A    Currently there is no

to other services         25B(4)       need to be taken into account when considering eligibility for the NDIS rule      intention to make this

Part 9 of Schedule 1                  NDIS.                                                                               rule

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Appendix 2 – Support Determination Process

This diagram provides an illustrative example of how proposed amendments to reasonable and necessary supports (Schedule 1, Part 6) interact with support determinations (Schedule 1, Part 4) and plan renewal (Schedule 1, Part 5). The example in the diagram would be possible from 1 February 2027, when proposed amendments to reasonable and necessary supports are due to commence.