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.

1. 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)

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

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.

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.

Why Controversial

Funding Reductions Through Legislative Instruments

• The Minister may reduce funding percentages for categories of supports.
• No individual assessment is required.

Further Concern

• The Act explicitly allows funding levels to fall below the actual cost of providing support.
• This represents a significant deviation from earlier understandings of “reasonable and necessary” in this context.

Administrative Law Issue

• Major policy choices are being shifted away from parliamentary oversight towards delegated legislative authority.

Part 5 - Automatic Renewal\n(new section 50A)

Risk Level: \ extremely high*

• Plans will be renewed automatically without any further evaluation or discussion.
• There will not be a planning session, no re-evaluation process, nor an updated statement outlining current supports.

Controversial Feature: Subsection 50A(4) states:

the renewal

**is not a reviewable decision.“\n\nWhy lawyers will notice this\n\nAdministrative law generally protects review rights.\n\nHere Parliament is deliberately excluding review of one important administrative action.\n\nThat usually attracts Senate committee scrutiny.\n\nMinister may alter renewed plans\n\nSection 50A(3)\n\nRisk Level: High\n\nThe Minister can determine future alterations by legislative instrument.\n\nExamples include removing:\n\n- temporary funding\n- one-off supports\n- time-limited supports.\n\nConcern\n\nFuture Ministers gain broad powers over renewed plans without further legislation.\n\nTransitional provisions\n\nItem 58\n\nRisk Level: High\n\nExisting reassessment dates may be replaced.\n\nThe Minister can determine earlier dates.\n\nPractical consequence\n\n——————————————————————————\n6

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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.

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

• Equipment may need to be leased rather than owned.

• This could reduce participant choice.

(1E)

Hierarchy of Evidence

Research evidence

\u21d3

Participant-specific evidence

\u21d3

Previous outcomes

\u21d3

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

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 unnecessaril[y] 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.

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

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

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 reduces parliamentary 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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