Submission 3276 — Ms Renee Fisher — NDIS Future Generations Bill | External submission

SUBMISSION TO THE

Senate Community Affairs Legislation Committee

National Disability Insurance Scheme Amendment

(Securing the NDIS for Future Generations) Bill 2026

An Independent Forensic Analysis of Structural Governance Transformation

Submitted by:

Renee Fisher

May 2026

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Executive Summary 3

The Ontological Shift: From Lived Disability to Administrative Score 4

The Hidden Governance Architecture: Ten Mechanisms 5

Forensic Analysis: Core Provisions 7

Section 9B — Functional Capacity Abstraction Engine 7 Section 34A — Direct Funding Haircut Power 8 Section 48/48A — Reassessment Suppression 9 Section 50A — Silent Plan Renewal 9 Section 25A — The Appropriate Treatment Trap 10 Section 25B — Alternative-System Exclusion 10 Schedule 3 — Automation and Non-Legislative Governance 11

The Actuarial Administrative Governance Stack 12

Structural Architecture: The Governance Pipeline 12

Autism and Neurodivergence: Particular Concerns 13

Indirect Discrimination and Longitudinal Harm 13

The UNCRPD Compliance Paradox 14

Sustainability Supremacy: A Philosophical Pivot 14

The Accountability Diffusion Problem 15

Recommendations 16 Conclusion 17

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Executive Summary

This submission examines the cumulative effect of the reforms proposed in the National

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

The central concern is not any single provision, but the interaction between access reforms, functional capacity assessments, sustainability mechanisms, reassessment

restrictions, delegated governance powers, and automated administration.

Collectively, these reforms represent a structural transition of the NDIS — from a relational,

rights-based  social  insurance model  toward a  threshold-based,  actuarially  calibrated

administrative governance architecture. The Bill does not merely amend operational details. It rewrites the operational philosophy of the scheme through 240 individual amendment items across five Schedules.

Central Finding

The Bill builds a machine. Each clause appears administrative, technical, incremental. But the cumulative architecture — functional abstraction, threshold classification, reassessment suppression, funding haircuts, silent renewals, automation, and delegated governance through non-legislative instruments — constitutes a systematic transfer of power away from individual participants and toward centralized fiscal-administrative control.

The Explanatory Memorandum is unusually explicit about the objective: reduce annual cost growth to 5–6 per cent or lower. The EM openly states that funding for some NDIS supports may be less than the actual cost of providing those supports. These are not peripheral comments. They are central organizing statements confirming that expenditure control is one of the core governing purposes of the Bill.

This submission analyses the structural architecture of the Bill in forensic detail, identifies ten

concealment mechanisms embedded across  the  legislative  instrument, examines  the

implications for autistic participants and others with complex, fluctuating conditions, and proposes recommendations that would restore meaningful accountability, reviewability, and rights-based governance to the scheme.

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The original NDIS was conceived as a demand-driven social insurance model centred on choice and control, individualized supports, social participation, and lifetime investment. Disability was understood as a practical interaction between impairment and environment — not merely an internal deficit. The scheme’s radical break from pre-NDIS systems was not simply more funding. It was a different governing philosophy: support adapts to human complexity.

Before the NDIS,  disability support was  heavily  rationed, state-based, geographically

inconsistent, capped, crisis-driven, and often institutionally paternalistic. The NDIS changed the moral language of disability governance by introducing individualized funding, participant choice and control, and a rights-oriented framing grounded in social participation and lifetime investment logic.

The Bill now partially reintroduces features that resemble older administrative systems — but

with a  critical difference. This  is not a return to old welfare bureaucracy.  It  is modern

computational  welfare  governance:  data  systems,  functional  classifications,  actuarial

modelling, pricing instruments, automated administration, benchmarking architectures, and centralized operational instruments. That is structurally different from anything that preceded it.

The Ontological Shift: From Lived Disability to

Administrative Score

The reforms introduce a fundamental shift: from disability as a lived interaction between impairment and environment, toward disability as an administratively scored capacity. This transition is reflected across the access, planning, funding, and governance provisions of the Bill.

The critical transition can be stated precisely:

Earlier NDIS Logic Emerging Architecture

Rights-based insurance scheme Fiscal-governance scheme

Individualised discretion Threshold-based administration

Human narrative weighting Functional abstraction weighting

Reassessment-oriented Automatic renewal-oriented

Plan-specific funding Group support class management

Reviewable discretionary acts Legislative instrument governance

Support entitlement logic Sustainability-constrained allocation logic

Support adapts to human complexity Human complexity adapts to administrative categories

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The most important structural fact is that this shift is not expressed through a single dramatic clause. It is expressed through the pattern — the way each mechanism reinforces and enables the others to collectively redirect where power lives.

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The Hidden Governance Architecture: Ten

Mechanisms

The Bill does not cut supports through a single provision. It builds a structure through which adjustments can occur via thresholds, classifications, instruments, pricing, automation, plan renewal, other-system exclusion, and procedural gatekeeping. Below is a forensic map of the ten core mechanisms.

Mechanism                Legislative          Structural Function

Location

1. Functional-Capacity      Schedule 1, item 4,   Defines capacity without assistance, assistive

Scoring Gateway         new s 9B            tech or modifications; excludes

environmental/personal circumstances. Rules may set methods, criteria, classifications, thresholds.

2. Reassessment          Schedule 1, items     Participant-requested reassessment becomes

Suppression               18–21, s 48/48A      conditional. 21-day pathway extends to 90

days. CEO may redirect requests into new framework planning.

3. Direct Funding Haircut    Schedule 1, item      Minister may reduce funding for groups of

Power                      34, new s 34A        supports by percentage even where this

means funding is below the actual cost of reasonable and necessary supports.

4. Silent Plan Renewal      Schedule 1, Part 5,   Existing plans roll into renewed plans without

new s 50A fresh individualized planning. Renewal itself is not a reviewable decision.

5. Appropriate Treatment    Schedule 1, Part 8,   Treatment counts as appropriate even where

Trap                  new s 25A            inaccessible due to geography, finances, or

personal circumstances. Theoretical recoverability replaces lived practical permanence.

6. Alternative-System       Schedule 1, Part 9,     If another system theoretically covers an

Exclusion              new s 25B           impairment or support, NDIS may exclude it.

Creates recursive referral loops between schemes.

7. Fraud Powers Become   Schedule 2, Parts     Information gathering, civil penalties, record

General Governance       2–4                    retention, and criminal-investigation support

expand NDIA’s coercive administrative capacity.

8. Pricing Becomes        Schedule 3, Part 1    Minister becomes final decision-maker on

Executive Control NDIS prices. Pricing must consider financial sustainability.

9. Non-Legislative          Schedule 3, item 8,   Rules may incorporate external writings made

Operational Law           s 209(2AA)            specifically for that purpose, published on

NDIA website but declared not a legislative instrument. Operational documents shape outcomes without parliamentary scrutiny.

10. Automation Enters the   Schedule 3, Part 2   Automated decision-making and standard

Act operating procedure instruments become explicit statutory components of NDIS

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governance.

The Biggest Structural Bomb

The phrase “instrument or other writing is not a legislative instrument” creates a hidden governance channel. Operational material can shape participant outcomes without the same parliamentary scrutiny as legislation. The effective bridge is: Act → Rules → Incorporated Documents → SOPs → Automated Processes → Participant Outcome. Every layer in this chain creates diffusion of accountability.

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Forensic Analysis: Core Provisions

Section 9B — Functional Capacity Abstraction Engine

The Bill introduces a statutory definition of functional capacity as intrinsic ability — assessed without assistance from other people, assistive technology, or modifications; and in a context that excludes, as far as possible, the impact of environmental and personal circumstances.

The Explanatory Memorandum confirms the intent is to “confine the assessment to the

person's  intrinsic  ability" and  to compare  "participants  to  their peers" — establishing

comparative benchmarking systems. The EM further confirms a two-stage architecture: first legislate the definition, then connect it to assessment tools, thresholds, and classifications through future NDIS Rules.

This is philosophically significant. Modern disability scholarship — and the UNCRPD itself —

recognizes  that  functioning  is  contextual:  barriers  matter,  supports  alter  capacity,

environments shape disability. This provision moves in the opposite direction, abstracting people into context-stripped functional entities for administrative classification.

Core Philosophical Problem

The provision effectively asks: what is this person capable of, if we remove their supports, their context, their environment, and their lived reality? The administrative answer then determines whether they qualify for support at all. This creates an ontological inversion: the person’s actual life becomes less authoritative than the system’s abstract model of potential function.

Rules may prescribe classifications, thresholds, assessment methods, and circumstances deemed to exist or not exist. This creates a secondary governance layer where Parliament sets broad statutory shells and operational meaning migrates into delegated instruments. Formal law governs; operational law rules.

Section 34A — Direct Funding Haircut Power

This is among the most structurally radical provisions in the Bill. Section 34A allows the Minister to reduce funding percentages for groups of supports via legislative instrument for the purpose of ensuring financial sustainability — even where this means funding is below the actual cost of reasonable and necessary supports.

Historically the NDIS logic was: determine reasonable and necessary support, then fund it. Section 34A structurally permits macro-fiscal override of support sufficiency. Determinations may apply across entire support classes simultaneously, are exempt from sunsetting mechanisms, and may thereby become semi-permanent fiscal infrastructure.

Earlier Logic Emerging Logic under s 34A

Determine R&N support need Evaluate against sustainability framework

Fund the support determined Funding may be intentionally below actual cost

Individual entitlement drives funding Ministerial instrument overrides individual assessment

Unmet need is a system failure Partial funding is normalised and lawful

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Section 48/48A — Reassessment Suppression

The Bill heavily restricts participant-requested reassessments. The threshold rises to require demonstration of significant and ongoing functional or circumstantial change with substantial reduction in daily activity performance. The response window extends from 21 to 90 days. The CEO may also redirect reassessment requests into new framework planning rather than conducting the reassessment itself.

This creates an administrative redirection architecture: participants seeking responsiveness to changed circumstances face gatekeeping conditions, extended delays, evidence burden escalation, and potential diversion into a broader planning transition rather than a targeted reassessment. Some decisions in this pathway are non-reviewable operational transitions rather than merits decisions.

Section 50A — Silent Plan Renewal

Section 50A establishes automatic plan renewal by operation of law. Renewals do not require a new CEO decision, a new participant support statement, or a reviewable decision. Renewed

plans may  automatically remove  one-off  funding,  temporary  variations, and  expired

categories, and may apply funding reductions and legislative alterations.

The  practical  effect  is  administrative  replication  logic replacing human reassessment.

Historical plan structures persist forward with rule-based modifications. The Explanatory Memorandum describes this as “legislating the existing administrative process of plan continuations,” which confirms that what was previously administrative practice now becomes statutory architecture — removing the previous discretion to make a fresh individualized assessment at renewal.

Section 25A — The Appropriate Treatment Trap

Access increasingly depends on demonstrating that all appropriate treatment has been undertaken and that no further treatment is likely to materially improve the impairment. Critically, the Bill allows treatment to be counted as “appropriate” even where it is inaccessible due to geography, financial constraints, waiting lists, or service scarcity.

Counterfactual Capability Logic

The state may effectively reason: if ideal treatment conditions theoretically existed, capacity might improve — even where specialists are unavailable, waiting lists are years long, regional access is impossible, or costs are prohibitive. People are assessed against theoretical versions of themselves existing in idealised service ecosystems that do not materially exist for them.

This creates structural inequity risks for rural participants, low-income participants, and those facing healthcare workforce shortages. Practical inaccessibility becomes invisible to the eligibility assessment because the framework separates theoretical treatment availability from actual accessibility.

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Section 25B — Alternative-System Exclusion

If another system — workers compensation, transport accident schemes, government services, or future declared support systems — theoretically provides support, NDIS may exclude the relevant impairment. This creates jurisdictional displacement: each subsystem optimizes around cost containment and liability boundaries, and the participant becomes administratively divisible rather than understood as a whole human being. Recursive referral loops between systems become structurally embedded.

Schedule 3 — Automation and Non-Legislative Governance

Schedule 3 Part 2 explicitly authorizes automated decision-making and standard operating procedure instruments as components of NDIS governance. Combined with the s 209(2AA) provision allowing Rules to incorporate non-legislative external writings, this creates a computational governance architecture that shapes participant outcomes at a level below parliamentary visibility.

Once thresholds are encoded  into  operational systems,  policy hardens  into  invisible

infrastructure. Assessment categories harden into systems; systems harden into operational reality; operational reality eventually appears objective, technical, and inevitable. Governance disappears into infrastructure.

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The Actuarial Administrative Governance Stack

The  Bill's mechanisms are not isolated provisions. They constitute a  fully interoperable

governance stack — each layer enabling and reinforcing the others.

Layer Function

Eligibility Layer Functional capacity abstraction via s 9B

Assessment Layer Threshold classification through future Rules and assessment tools

Planning Layer New framework planning architecture replacing discretionary planning

Funding Layer Group support class allocation replacing individual entitlement

Fiscal Layer Ministerial funding reduction powers via s 34A

Renewal Layer Automatic plan continuation via s 50A

Automation Layer SOP instruments and ADM systems via Schedule 3

Governance Layer Financial sustainability as interpretive supremacy principle

Structural Architecture: The Governance Pipeline

The functional output of the Bill is a sequential governance pipeline that converts lived human complexity into administratively managed resource variables:

Human narrative → Functional abstraction (s 9B)
Functional abstraction → Threshold classification (future Rules/instruments)
Threshold classification → Access determination (s 25A, s 25B)
Access determination → Framework planning (Schedule 4)
Framework planning → Group support allocation (funding class instruments)
Group support allocation → Fiscal calibration (s 34A Ministerial determinations)
Fiscal calibration → Administrative renewal (s 50A)
Administrative renewal → Automated processing (Schedule 3 Part 2)
Automated processing → Participant outcome Every transfer along this chain creates further diffusion of accountability. No single actor makes the final harmful decision. The architecture itself generates constrained outcomes without requiring explicit intent from any individual participant in the system. This is the political and legal sophistication of the design: structurally deniable at every node.

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Autism and Neurodivergence: Particular

Concerns

Particular concerns arise for autistic participants and others with fluctuating, non-linear, or

context-dependent  disabilities. The  Bill's  functional  abstraction  model  is  structurally

mismatched with how many autistic people experience and present their disability.

Standardized assessment approaches struggle to capture masking, executive dysfunction, sensory processing differences, autistic burnout, and episodic collapse. A person may present as highly functional in a short structured assessment environment while facing catastrophic functional difficulties across the rest of their life. The system, optimized for measurable and stable presentations, risks systematically misrepresenting the support needs of autistic participants.

The evidence hierarchy established by the Bill — prioritizing peer-reviewed generalisable research over participant-specific evidence — creates further structural problems. Many

autism-related supports are individualized,  relational, and adaptive  in ways that  resist

standardized RCT-style evidence structures. The CEO may reject these supports due to limited generalisable research evidence even where individualized participant evidence clearly demonstrates their necessity.

Pre-NDIS disability data shows that nearly half of autistic participants classified by primary disability category have multiple significant co-occurring conditions. Requiring singular primary impairment classifications and direct causal linkage forces a representational flattening that obscures the actual complexity of support need. The direct impairment linkage model under s 25B compounds this by artificially partitioning comorbidities and interacting conditions that operate as integrated systems in lived experience.

Indirect Discrimination and Longitudinal Harm

Pathways

Although many provisions are framed as neutral, their practical effect may disproportionately affect particular cohorts. Structural inequity risks include:

Autistic participants — functional abstraction misrepresents context-dependent disability
Psychosocial disability cohorts — fluctuating presentations resist threshold classification
Rural participants — appropriate treatment unavailable; functional thresholds assessed against inaccessible services
Low-income participants — financial barriers to treatment invisible to permanence assessment
People with complex comorbidities — direct impairment linkage artificially fragments integrated support needs
Participants with communication disabilities — contactability suspension powers create inequitable risk
Participants experiencing family violence — informal support assumptions and contactability provisions create harm exposure

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The submission identifies risks associated with cumulative exhaustion, support erosion, caregiver breakdown, episodic collapse, and the long-term effects of withdrawing supports that maintain stability rather than produce measurable improvement. The sustainability framework, focused on expenditure management, does not have adequate mechanisms to measure or account for these downstream costs. The long-term investment logic that distinguished the original NDIS from rationed welfare systems is being replaced by short-cycle fiscal calibration.

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The UNCRPD Compliance Paradox

The Bill does not merely mention the Convention on the Rights of Persons with Disabilities — it uses CRPD language as a compatibility wrapper around mechanisms that create structural tension with core CRPD principles.

CRPD Principle Bill Mechanism Creating Tension

Autonomy and choice Planning and reassessment become gated and centrally controlled

Full inclusion Support funding may be reduced by class/category across cohorts

Reasonable accommodation Eligibility narrows around direct impairment linkage

Participation in decision-making Major operational details deferred to future instruments outside parliamentary scrutiny

Progressive realisation Sustainability used to justify structural contraction

Non-discrimination Indirect discrimination risks for complex, fluctuating, and contextual presentations

Supported decision-making Automated plan renewal removes individualized engagement points

Right to legal capacity Non-reviewable administrative transitions remove formal contestability

The Explanatory Memorandum itself acknowledges the Bill limits practical NDIS benefit for some people by excluding them under tighter access criteria, justifying those limits through sustainability rather than individualized support need assessment. That structure inverts the CRPD framework, which requires limitations to be justified on rights-based grounds with individualized assessment — not on aggregate fiscal management grounds.

Sustainability Supremacy: A Philosophical

Pivot

The most consequential statutory change in the Bill may be a single phrase. The existing objects clause — provide reasonable and necessary supports — becomes qualified: provide NDIS supports that are reasonable and necessary, so far as is consistent with the financial sustainability of the scheme.

That is an explicit statutory hierarchy insertion. Financial sustainability stops being merely an overarching principle and becomes a direct qualifier attached to support provision itself. Every planner, delegate, pricing authority, tribunal, and court now has explicit statutory authority to prioritize sustainability in interpreting support entitlements.

The Central Philosophical Question

Is the NDIS primarily a rights-based support system, or a fiscally constrained insurance allocation system? The Bill increasingly answers both — but where those conflict, it now

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gives structural statutory weight to sustainability, standardisation, calibration, and administrative manageability. That resolution is the shift.

The Bill also admits in the Explanatory Memorandum that the reforms partly respond to Tribunal and Federal Court decisions that expanded the scope of access. This confirms that the Bill is partly a legislative override of judicial expansion of participant rights — converting

judicially recognised  entitlements back  into  threshold-filtered access through  statutory

redesign. That is a significant constitutional dynamic that warrants direct parliamentary examination.

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The Accountability Diffusion Problem

The architecture of the Bill generates a structural accountability paradox. Each actor inside the governance chain can sincerely claim partial innocence:

Actor Claim

The Minister We only set broad sustainability principles

The Department We only implemented the legislation

The Agency We only followed the framework

The Delegate We only applied the assessment tool

The Assessment System We only operationalised the requirements

The Automated Process No individual made this decision

No single actor appears fully responsible. This is the political and legal sophistication of infrastructural governance: power becomes ambient. The cruelty, where it occurs, emerges cumulatively. No individual actor requires malicious intent. The architecture itself generates narrowing possibilities through fragmentation, optimization, delegation, abstraction, and institutional distance.

The phrase “not a legislative instrument” — applied to incorporated operational writings under s 209(2AA) — is the clearest expression of this problem. Ordinary citizens hear “administrative detail.” Institutionally, it means operational outcomes can be reshaped without reopening Parliament each time. The democratic visibility of governance drops sharply at exactly the point where participant impact is most direct.

Once assessment criteria are encoded into operational systems, policy hardens into invisible infrastructure. People still imagine support decisions happen through visible human choices. Modern administrative systems are subtler: adjust classifications, change methodology, alter benchmark assumptions, modify pricing bands, extend reassessment windows, suppress reviewability, automate consistency. No dramatic announcement required. The system simply states: your circumstances no longer meet the operational criteria.

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Recommendations

The following recommendations are directed at restoring genuine accountability, maintaining

rights-based  individualization, and  ensuring  parliamentary  oversight  of  consequential

governance mechanisms.

Retain contextual assessment principles. Section 9B should be amended to require consideration of environmental factors, supports, and personal circumstances as part of functional capacity assessment, consistent with the social model of disability and the UNCRPD.
Require environmental factors to be considered. The exclusion of environmental and personal circumstances “as far as possible” should be removed. Lived functional capacity is inherently contextual. Abstraction from context produces systematically inaccurate and inequitable assessments.
Strengthen review rights. Section 50A automatic renewals should constitute reviewable decisions. All significant administrative transitions that affect participant entitlements should attract formal merits review rights.
Increase transparency around assessment methodologies. All assessment tools, classification systems, thresholds, and benchmarks used to determine functional capacity and support eligibility should be published as legislative instruments subject to parliamentary scrutiny.
Subject key technical instruments to parliamentary scrutiny. The non-legislative instrument carve-out in s 209(2AA) should be removed or significantly constrained. Operational documents that materially shape participant outcomes should be subject to disallowance.
Require human oversight of automated decisions. Section 34A funding determinations and automated plan renewals should require individualized human review before taking effect in circumstances where a participant’s support funding is reduced.
Remove or substantially constrain section 34A. The power to reduce funding for entire support classes below the actual cost of reasonable and necessary supports is structurally incompatible with the rights-based foundations of the scheme. It should be removed, or at minimum require affirmative parliamentary approval and sunset after two years.
Amend the appropriate treatment provisions. Section 25A should be amended to provide that treatment is not appropriate if it is not actually accessible to the participant within a reasonable time and distance, having regard to their geographic location, financial circumstances, and disability.
Monitor indirect discrimination outcomes. The Committee should recommend establishment of an independent monitoring mechanism with specific mandates to track differential outcomes by disability type, geography, cultural background, and socioeconomic status, with public reporting obligations.

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Conduct independent evaluation before full implementation. Given the scale of this structural transformation — 240 amendment items constituting a systems re architecture — an independent evaluation of impact on existing participants should be completed before core access and planning provisions commence.

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Conclusion

The Bill does not merely amend the National Disability Insurance Scheme. It executes a structural transformation of the philosophy, governance, and operation of the scheme — from individualized rights-oriented social insurance toward actuarially calibrated administrative governance.

The central policy question this Parliament must resolve is whether disability support should remain primarily rights-based and individualized, or become increasingly governed through actuarial, fiscal, and administrative thresholds. The Bill, as drafted, increasingly resolves that question in favour of the latter while retaining the language of the former.

That combination — rights language wrapping fiscal-administrative machinery — is the deepest structural concern in this submission. The mechanisms are technically sophisticated, politically resilient, and structurally deniable at each individual node. The harm, where it occurs, will emerge cumulatively and will disproportionately fall on those whose disabilities are most complex, most contextual, most fluctuating, and least amenable to administrative standardization.

Final Observation

The Explanatory Memorandum confirms that the Bill partly responds to judicial decisions that expanded participant rights. This Parliament should recognise that it is being asked to ratify a legislative architecture designed to reverse those rights expansions — and to do so through mechanisms that will progressively migrate consequential governance decisions into delegated instruments, assessment tools, pricing systems, and automated processes below the level of parliamentary visibility.

The recommendations  in  this submission are directed at preserving the accountability

mechanisms, reviewability rights, and individualized assessment principles without which the scheme cannot fulfil its original social contract with people with disability.

Submitted: May 2026

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