My name is and I have three siblings with ATAXIA (HSP) and following is my submission on the The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 as a clause-by-clause analysis highlighting provisions that are likely to be legally or practically contentious from a legal, administrative law and disability policy perspective. They are most likely to attract parliamentary debate, committee scrutiny or future litigation. I’ve focused on provisions that either alter participants’ legal rights, confer broad discretionary powers, or significantly change the operation of the NDIS.
- Clause 4 – Statutory Review of the Act
Risk Level: Low
What it does
Requires an independent review of the amendments.
Positive
● Creates statutory oversight. ● Requires review of: ○ participant outcomes ○ access ○ appeal rights ○ provider market ○ foundational supports.
Concern
The review occurs after implementation.
It does not delay commencement of controversial provisions.
Schedule 1 Part 1
New definition of Functional Capacity (new section 9B)
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Risk Level: Very High
This is arguably the most significant legal amendment in the Bill.
The definition requires functional capacity to be assessed:
● without assistance ● without assistive technology ● without modifications ● excluding environmental circumstances where possible.
Why this is controversial
The modern disability model—including the UN Convention on the Rights of Persons with Disabilities (CRPD)—generally assesses disability in the interaction between impairment and environment.
This provision moves closer to a medical impairment model.
Practical consequence
People who currently function well because they use:
● wheelchairs ● communication devices ● prosthetics ● home modifications ● support workers
may appear to have higher functional capacity during assessment.
Legal concern
Subsection 9B(2) allows detailed assessment rules to be made later through delegated legislation.
Parliament is approving the framework without knowing the assessment methodology!
Part 2
Section 48A
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Conditions for reassessment
Risk Level: High
Participants no longer simply request reassessment.
They must satisfy statutory gateway conditions.
Examples:
● significant ongoing deterioration ● major environmental change ● loss of informal supports.
Legal issue
The threshold becomes jurisdictional.
If conditions are not met:
the CEO may never reach the merits of the request.
Practical concern
Participants whose needs increase gradually may struggle to satisfy “significant” change.
Section 48
Decision period extended
21 days → 90 days
Risk Level: Moderate
This increases administrative flexibility.
However:
participants experiencing urgent deterioration could wait months which is detrimental to the health.
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Part 3
Supports must arise directly from impairment
Risk Level: High
Supports must arise directly from disability.
Why debated
Many disability needs arise indirectly.
Examples:
Autism
↓
communication difficulties
↓
social isolation
↓
support worker.
The causal chain becomes legally important.
Future AAT/Federal Court cases would likely focus on the meaning of “directly”.
Part 4
New section 34A
Minister may reduce funding
Risk Level: Extremely High
This is probably the Bill’s most constitutionally and administratively significant provision.
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The Minister may reduce funding percentages for categories of supports.
No individual assessment is required.
Why controversial
Funding reductions become possible through legislative instruments.
Not primary legislation.
Further concern
The Act expressly states funding may become less than actual support costs.
That is a major departure from previous interpretations of “reasonable and necessary.”
Administrative law issue
Large policy decisions shift from Parliament to delegated legislation.
Part 5
Automatic renewal (new section 50A)
Risk Level: Extremely High
Plans renew automatically.
No planning meeting.
No reassessment.
No new Statement of Supports.
Controversial feature
Subsection 50A(4)
states:
the renewal
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“is not a reviewable decision.”
Why lawyers will notice this
Administrative law generally protects review rights.
Here Parliament is deliberately excluding review of one important administrative action.
That usually attracts Senate committee scrutiny.
Minister may alter renewed plans
Section 50A(3)
Risk Level: High
The Minister can determine future alterations by legislative instrument.
Examples include removing:
● temporary funding ● one-off supports ● time-limited supports.
Concern
Future Ministers gain broad powers over renewed plans without further legislation.
Transitional provisions
Item 58
Risk Level: High
Existing reassessment dates may be replaced.
The Minister can determine earlier dates.
Practical consequence
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People expecting review in two years may receive automatic renewal much sooner.
Part 6
Purpose clause amendment
Section 3
Risk Level: Moderate
The Act now expressly links reasonable and necessary supports with financial sustainability.
Importance
Purpose clauses influence court interpretation.
Future judges may give greater weight to sustainability at the expense of participants.
New section 17B
Scheme sustainability principles
Risk Level: High
The CEO must consider:
● sustainability ● equitable funding ● actuarial advice.
Debate
Historically planning focused primarily on individual participants.
This introduces explicit population-level considerations.
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Maximum funding
(section 33)
Risk Level: Very High
Rules may prescribe:
● maximum funding ● maximum intensity ● staffing ratios.
Practical concern
Individualised planning becomes constrained by system-wide caps.
New section 34
Reasonable and necessary supports
Risk Level: Very High
Numerous changes.
(1A)
Value for money
CEO must compare cheaper alternatives.
Potential concern:
“cheapest suitable support” may become default at the expense of participants.
(1B)-(1D)
Purchase versus lease
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Equipment may need to be leased rather than owned.
This could reduce participant choice.
(1E)
Hierarchy of evidence
Research evidence
↓
participant-specific evidence
↓
previous outcomes
↓
other matters.
Concern
Rare conditions often lack large published studies.
Participants may struggle despite strong personal evidence.
(1F)
Limited research can justify refusal.
This provision is likely to generate litigation.
Family responsibility provisions
Subsections (1G)-(1K)
Risk Level: Very High
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Parents are presumed responsible for substantial care.
Supports cannot primarily reduce parental burden.
Concern
Families may argue this transfers caring responsibilities back onto unpaid carers.
Community supports
CEO encouraged to rely on:
● family ● carers ● community
before funded supports.
Debate
Advocates may argue this shifts costs away from government and unneccesariy on participants and their families and carers.
Part 7
Participants who cannot be contacted
Risk Level: Moderate
Plans may be suspended.
Participant status may eventually be revoked whilst they are concerned with their health.
Positive
The Bill requires:
● multiple contact attempts ● several months ● written contact.
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Remaining concern
People experiencing homelessness or severe psychosocial disability remain vulnerable despite safeguards.
Schedule 2
Fraud measures
Risk Level: Low
Generally supported.
Most provisions target providers.
Potential issue:
expanded information-gathering powers.
Schedule 3
Automation
Risk Level: High
Allows greater automated administrative action.
Legal concern
Automated decisions have produced litigation across Australian government agencies.
Questions include:
● procedural fairness ● algorithm transparency ● review rights. ● Robodebt repeated
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Overall Assessment
From a legal perspective, the provisions most likely to attract scrutiny are:
Provision Why it is contentious
New section 9B (Functional Changes the legal test for disability and leaves key Capacity) assessment criteria to delegated legislation.
Section 48A Restricts access to reassessment through new statutory (Reassessment Gateways) thresholds.
Section 34A (Ministerial Gives broad power to reduce funding by legislative Funding Reductions) instrument rather than primary legislation.
Section 50A (Automatic Removes planning meetings and excludes automatic Plan Renewal) renewals from reviewable decisions.
Section 17B (Sustainability Shifts decision-making toward whole-of-scheme financial Principles) considerations.
Section 34 (Reasonable and Tightens value-for-money tests, prioritises published Necessary Supports) evidence, and places greater emphasis on family and community supports.
Schedule 3 (Automation) Raises questions about procedural fairness, transparency, and accountability for automated decisions.
Overall impression
Viewed as a whole, the Bill appears to continue the policy direction established by the 2024 reforms but goes further by embedding cost-control and administrative efficiency into the
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statutory framework. It also transfers considerable detail from the Act itself to delegated
legislation and ministerial instruments. Supporters may argue this allows the NDIS to respond
more flexibly and remain financially sustainable, while critics may contend it reducesparliamentary oversight and narrows participants’ practical avenues to challenge decisions! Many of the Bill’s long-term effects will depend on the rules and legislative instruments made under these new powers, making parliamentary scrutiny of both the Bill and its subordinate legislation particularly important to this committee at this junction and the onus rests with one and all to get it right. How we treat the most vulnerable in our community reflects on all of us and one day may even include us.
Yours sincerely,
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