SUPPLEMENTARY ATTACHMENT TO SUBMISSION ALREADY LODGED
Senate Community Affairs Legislation Committee
National Disability Insurance Scheme Amendment
(Securing the NDIS for Future Generations) Bill 2026
This supplementary attachment strengthens the governance, administrative law and public accountability submission already lodged with the Committee. It adds four components not included in the original: (1) a governance timeline tracing the trajectory from 2011 to projected 2028 commencement; (2) an administrative law chapter examining the Bill’s interaction with established principles of Australian administrative law; (3) a delegated legislation and parliamentary accountability section; and (4) a Committee Questions appendix providing senators and parliamentary staff with specific questions they may put to government witnesses.
Submitted by: Renee Fisher
Independent Researcher and Legal Analyst
May 2026
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 1The Submission in One Sentence
The Bill does not primarily alter supports through individual decisions. It creates an administrative governance framework through which support levels, access thresholds, funding allocations, reassessment pathways and participant classifications can be adjusted systematically through rules, instruments, operational guidance and automated processes — without individual ministerial decisions and without being subject to individual merits review.
The submissions already lodged with the Committee demonstrate the Bill’s architecture in detail. This supplementary attachment adds the historical trajectory, the administrative law analysis, and the questions the Committee may wish to put to government witnesses.
The factual foundation for the core thesis is now fully public. Internal departmental modelling tabled in the Senate on 28 May 2026 confirms: 241,000 participants to be exited from the scheme in four years; peak participant numbers falling from a projected 944,000 to 598,000 by mid-2031; $37.8 billion in total savings targeted; and $13.2 billion of that coming from a single line — cuts to community participation budgets.¹ The Parliamentary Library’s Bills Digest describes the Bill as ’primarily aimed at reducing projected growth in NDIS expenditure and participant numbers.’²
These figures confirm that what is being debated is not an administrative efficiency measure. It is a structural contraction of the statutory boundary of the scheme — and the Bill provides the governance architecture to execute it.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 2Chapter 1 — What Changed Since 2013
The Bill is the current stage of a governance transformation that has been in development since at least 2019. Understanding the trajectory matters because each stage has narrowed participant rights, reduced discretionary space, and migrated operational authority downward from primary legislation. The Committee is asked to consider the Bill not in isolation, but as the point the trajectory has now reached.
Period Governance Key Development Rights DirectionLogic
2011 Productivity Demand-driven insurance; lifetime ExpansiveCommission investment; choice and control; reasonable design and necessary as individual entitlement
2013 NDIS Act Individual plans; participant-requested Expansivecommences reviews; human delegate discretion; s 34 test applied to each support; AAT merits review
2016– Early Agency develops internal price limits and Controls emerging
2019 operational benchmarks; practical controls introducedcontrols below legislative level
2019– Independent Proposed mandatory standardised functional First full
2020 Assessment assessments; community opposition forces framework
pilot withdrawal; elements later reintroduced attempt —blocked
2023 NDIS Review National Cabinet sets 8% growth target; Fiscal target
(Shorten) review recommends foundational supports installedboundary; sustainability formally elevated; Bonyhady co-chairs review³
2024 Getting the ART replaces AAT; new framework planning Structural
NDIS Back on begins; NDIS supports lists; transitional rules; compression
Track No.1 I-CAN assessment tool procurement beginscommences
2025 AAO Disability policy moves to Health and Ageing Executive
restructuring portfolio; pricing authority shifts toward centralisationexecutive; NDIA governance restructured
2026 Future 240 amendments: functional capacity Full framework
Generations Bill vacuum (s 9B), funding reduction power (s installed— currently 34A), silent renewals (s 50A), non-legislative before the governance (s 209(2AA)), automation (Sch 3
Committee Pt 2)
2028 Full access New eligibility rules operative; 241,000 Operational
(projected) framework participants to be exited by 2031; $37.8B in executioncommencement savings targeted; I-CAN assessment tool used as primary budget-determination instrument
Two observations from this timeline warrant the Committee’s attention.
First, the 2020 independent assessments proposal was defeated because it was visible — the assessment tools were known, debatable and contestable. The 2026 Bill achieves a materially
similar functional result through a different mechanism. The specific thresholds, peerbenchmarks, assessment methods and scoring logic that will determine eligibility for 241,000
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 3people are not in the Bill. They will be delivered later through NDIS Rules and non-legislative incorporated documents. Parliament is being asked to authorise the framework before its most consequential operational settings have been determined.
Second, the University of Melbourne institution that co-chaired the 2023 Reviewrecommending the new assessment approach has subsequently received a contract to build, implement and conduct the validation research for the I-CAN assessment tool to be used under the new framework.⁴ The Committee may wish to examine what conflict of interest assessment was conducted in relation to this procurement and what independent validation arrangements exist.
The Key Point
In 2020, the community could read the assessment tool and oppose it. In 2026, the assessment tool does not yet exist in legally binding form. The legislation creates the power. The tool arrives later through channels below full parliamentary scrutiny. That sequencing is the structural design, not a drafting oversight.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 4Chapter 2 — Administrative Law
Considerations
This chapter examines the Bill’s provisions against established principles of Australian administrative law. It is not a prediction of how courts will rule. It is an identification of the legal terrain courts will need to navigate — and, more immediately, grounds on which administrative decisions under the new governance framework may be challenged.
2.1 The Governance Framework: Where Power Resides
Before examining specific principles, it is useful to map where the operative authority under the Bill will reside. The following framework shows the chain from Parliament to participant outcome and identifies the accountability characteristics of each layer.
Parliament (primary legislation) — publicly visible; subject to
debate ↓ NDIS Rules (delegated legislation) — subject to
disallowance ↓ Incorporated Documents (s 209(2AA)) — explicitly
'not a legislative instrument' ↓ [no disallowance; updated on NDIAwebsite without parliamentary process] Standard Operating Procedures — internal instruments; limited public visibility ↓ Automated Decision Systems (Sch 3, Pt 2) — computer programs acting as CEO ↓
Participant Outcome
Democratic visibility and accountability diminish at each step down this framework. The most consequential operational decisions — what functional capacity score triggers exclusion, how peer benchmarks are constructed, what circumstances are deemed to exist or not — will be made at layers three and four, which carry the least accountability.
2.2 Fettering of Discretion
The common law principle against fettering of discretion requires that a statutory decision maker must genuinely exercise their discretion in each individual case. A decision-maker who pre-commits to applying a fixed rule regardless of the circumstances presented fetters their discretion unlawfully.
The question the Bill raises is not whether any individual instrument is impermissible. It is
whether the cumulative layering of thresholds, classification bands, SOP routing andautomated processing leaves a delegate able to genuinely exercise the individualized discretion Parliament conferred. This question has particular force when the government’s own documentation describes the new planning process as one in which ’instead of reviewing individual supports in a plan, a review will look at the decision to accept the assessment as the basis for calculating the reasonable and necessary budget.’⁵
If the delegate’s role is to verify that the assessment was correctly accepted, not to apply the s 34 test to each support, the question is whether the s 34 discretion has been exercised at all — or whether it has been operationally transferred to the assessment instrument and budget method.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 5The Robodebt Structural Parallel
The Royal Commission into the Robodebt Scheme identified a deterrent architecture: participants bore the burden of disproving automated calculations; the challenge process used the same methodology that produced the original figure; the structural incentive was to accept the system outcome rather than risk a worse one. The replacement SNA mechanism in the Bill’s reassessment framework replicates this pattern. A participant challenging an assessment faces a replacement process using the same instrument, which ‘may increase, decrease, or not change the assessed support needs.’ That structural risk asymmetry discourages challenge. The Commission found this arrangement unlawful in the Robodebt context. The Committee should consider whether it is acceptable here.
2.3 Mandatory Relevant Considerations and the ICF Regression
A decision is invalid if it fails to take into account a consideration the statute makes mandatory. A decision-maker cannot be directed by policy or instrument to exclude a factor that the statute makes relevant.
The NDIS Act has always operated within the framework of the WHO InternationalClassification of Functioning, Disability and Health (ICF) — a biopsychosocial model that treats disability as the interaction between impairment and environment. The ICF explicitly identifies environmental factors, participation barriers, assistive technology, and support networks as mandatory inputs to any assessment of functional capacity.
Section 9B introduces a definition that moves in the opposite direction — toward what disability scholars call the ICIDH model (the 1980 predecessor the ICF replaced), which locates disability entirely within the individual as a functional deficit. The new definition assesses capacity ‘without assistance from other people, assistive technology or modifications’ and ‘in a context that excludes, as far as possible, the impact of the person’s environmental and personal circumstances.’
Dimension ICF Model (legislated intent) s 9B Definition (operative effect)
Disability model Biopsychosocial — interaction Medical/functional deficit — intrinsicbetween impairment and capacity abstracted from environment environment
Environmental Mandatory positive consideration Excluded 'as far as possible'factors
Assistive Relevant — shapes actual Ignored — capacity assessed without
technology functional capacity it
Participation Core outcome measure Not directly assessed — proxied byintrinsic ability score
Individual context Required — must respond to Overridden by peer benchmark cohortindividual circumstances
The legal consequence is a potential conflict between the new s 9B definition and the Act’s existing objects and principles — which continue to require support for participation, choice and control, and social and economic engagement. Where the Act contains competing statutory signals, a court must attempt to reconcile them. The objects clause and general principles (s 4) may constrain the extent to which context can be excluded even under the new definition.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 62.4 Procedural Fairness
Procedural fairness requires adequate notice of the case against a person and a meaningful opportunity to respond. Three provisions of the Bill create structural risks.
Provision Risk Nature
s 50A — automatic Funding levels adjusted by operation of law, Structural — no decision-
plan renewal without notice or opportunity to respond; point exists at which theexplicitly declared not a reviewable decision participant can respond
Schedule 3, Part 2 Decisions generated through computer Structural — accountability
— automated programs; the natural justice obligation cannot attach to an
decisions attaches to the decision-maker; where no automated processhuman makes the decision, the obligation is difficult to satisfy
s 48A — 90-day Participant facing urgent support needs must Timeliness — procedural
reassessment wait 90 days for a decision; no interim fairness includes timely
window support mechanism identified in the Bill process where delay causesserious harm
2.5 Merits Review Jurisdiction and the ART
The Administrative Review Tribunal’s statutory function is merits review — standing in the shoes of the decision-maker and making the decision afresh on the merits. The ART must be able to exercise the same discretion as the original decision-maker.
Where the decision-maker’s role has been reduced to verifying that a budget method algorithm ran correctly, the ART constrained to the same budget method may not be conducting merits review — it may be conducting algorithmic compliance checking. NDIS Rules cannot convert the ART’s merits review jurisdiction into a formula verification function; if the budget method purports to do this, it may be ultra vires the ART Act read with the NDIS Act.
The non-reviewability of s 50A automatic plan renewals and s 34A Ministerial support determinations removes entire classes of consequential outcomes from merits review entirely. A participant whose funding is reduced through a s 34A determination cannot challenge the quantum of the reduction before the ART — only the legality of the instrument. A participant locked into an underfunded automatic renewal has no reviewable decision to contest.
The Review Rights Question
If the s 34 reasonable and necessary test is no longer applied to individual supports; if the budget is calculated algorithmically; if renewals occur automatically by operation of law; and if class-level funding reductions are made by non-sunsetting ministerial instrument — what, precisely, remains available for a participant to challenge through the ART’s merits review jurisdiction?
2.6 Legal Unreasonableness and s 34A
A decision is legally unreasonable if it is so unreasonable that no reasonable decision-maker could have made it. Section 34A raises this question at a systemic level: the provision permits the Minister to fund supports at a level knowingly below their actual cost, where those supports have already been determined to be reasonable and necessary.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 7Historically, the NDIS logic was: determine reasonable and necessary supports, then fund them. Section 34A introduces a fiscal override that makes those two steps separable — and makes the second step discretionary. The legal question is whether there is a point at which the gap between determined need and actual funding becomes so disproportionate to the Act’s objects that it cannot be characterised as a legitimate exercise of a sustainability power. That question will eventually arise in proceedings. The Committee should consider whether Parliament intended to authorise structural underfunding of supports that have cleared the existing statutory threshold.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 8Chapter 3 — Parliamentary Accountability and
Delegated Power
The concern addressed in this chapter is not that Parliament delegates power. Delegation is a necessary and routine feature of modern governance. The concern is the cumulative character and democratic visibility of what is being delegated in this Bill — and the specific mechanism in s 209(2AA) that explicitly removes a class of operational documents from parliamentary oversight.
3.1 The Scope of Delegation
The following categories of authority are delegated under the Bill to instruments below primary legislation:
Category Delegated To Visibility Reviewability
Functional capacity NDIS Rules + Rules: disallowable. Rules: yes. Docs: no
thresholds incorporated Incorporated docs: not adocuments legislative instrument
Assessment NDIS Rules + TAG TAG advice: not a No
methodologies advice incorporated legislative instrumentvia s 209(2AA)
Peer benchmark NDIS Rules + Not a legislative No
classifications incorporated instrumentdocuments
Support class funding Ministerial legislative Legislative instrument No — explicitly
reductions instrument (s 34A) excluded from meritsreview
Standard operating CEO instruments (s Not a legislative No
procedures 59D) instrument
Automated decision Computer programs Source logic not required No
logic (Sch 3 Pt 2) to be publishedThe cumulative effect is that the most consequential operational decisions — those that determine whether a particular person can access the scheme and at what funding level — are concentrated in the layers with least democratic visibility.
3.2 Section 209(2AA) — A Dedicated Focus
Section 209(2AA) warrants specific examination because it is not a standard delegation provision. It is an explicit statutory declaration that a particular category of document — one that can contain scoring frameworks, assessment guidelines, classification criteria and operational manuals — will not be a legislative instrument. That declaration is deliberate. It has direct consequences for parliamentary oversight.
Feature Legislative Instrument Incorporated Document under
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 9s 209(2AA)
Parliamentary scrutiny Standing Committee review Minimal — website publicationonly
Disallowance Available — Parliament can Not availablerevoke
Sunsetting Subject to sunsetting rules Not subject to sunsetting
Registration Required on Federal Register Not required
Public consultation Typically required for significant Not requiredinstruments
Amendment process Parliamentary process Updated by NDIA; websitenotification only
The practical consequence of this architecture is that the rules most participants actually encounter — the scoring tools, the eligibility thresholds, the assessment manuals used in planning meetings — may live in documents that Parliament cannot disallow and that can be updated without formal process.
Most participants will never read the NDIS Act. They will experience the assessment tool, the planning guidance, the operational manual, the automated workflow. If those documents are where real access outcomes are determined, and if those documents are below parliamentary visibility, then democratic accountability for the NDIS’s most consequential functions has been formally removed by the Bill itself.
The Core Parliamentary Accountability Question
If the most consequential operational rules governing 760,000 people’s access to disability support are placed in documents that Parliament cannot disallow, that are not registered as legislative instruments, and that can be updated without formal process, what is the practical meaning of parliamentary oversight of the NDIS? This question is posed not rhetorically but analytically: the Committee should identify what accountability mechanisms remain operative after s 209(2AA) is enacted.
3.3 The Disability Discrimination Act Dimension
Under the Disability Discrimination Act 1992 (Cth), indirect discrimination occurs when a
condition, requirement or practice is imposed on everyone but disproportionatelydisadvantages people with a particular disability, and the requirement is not reasonable in the circumstances. The hardest indirect discrimination question raised by the Bill is not whether any individual provision is facially discriminatory. It is whether the governance framework as a whole will produce predictable differential exclusion outcomes for particular disability cohorts.
Three specific risk vectors arise from the new functional capacity governance framework:
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The intrinsic ability assessment model (s 9B) may structurally privilege disabilities that are biomechanically stable, visibly physical, and legible to standardised scoring. Autism and psychosocial disabilities are characterised by fluctuating, context dependent, and often invisible presentations. A standardised benchmark system assessing intrinsic capacity may systematically score these participants as higher capacity than their actual functional reality warrants.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 10
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The appropriate treatment requirement (s 25A) may operate as a socioeconomic filter. A participant able to access private specialists exhausts treatment and is deemed permanently impaired; a participant on a multi-year public waitlist in a regional service desert remains technically ‘untreated.’ The provision creates an access differential that correlates directly with income and geography.
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The direct impairment linkage requirement may partition the support needs of participants with complex comorbidities in ways that fail to reflect integrated human functioning. Autism paired with mental health conditions, or acquired brain injury with chronic pain, produces support needs that cannot be cleanly traced to a single eligible impairment. The partitioning architecture creates ‘orphaned supports’ — needs that exist but cannot be attributed to any single eligible pathway.
The Committee should ask the government: has an indirect discrimination impact assessment been conducted across the cohorts most likely to be affected by the new functional capacity governance framework? If so, it should be tabled.
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 11Chapter 4 — Evidence Register
The following register separates factual claims (grounded in primary sources) from analytical inferences (interpretive judgments drawing on those sources). Every factual claim is attributed to its source. This separation is intended to assist the Committee in distinguishing what the Bill and its supporting documents actually say from what this submission argues about their implications.
4.1 Fiscal and Statistical Claims — Primary Sources
Claim Source Status
NDIS projected to cost Explanatory Memorandum, Factual — EM$116.7B/year by 2036 at current p 3 growth
Government targets 5–6% annual EM; National Cabinet Factual — EMcost growth communiqué
241,000 participants to be exited by Departmental modelling Factual — tabled documentmid-2031 tabled in Senate, 28 May 2026
Peak participants projected at Same tabled modelling Factual — tabled document817,000 in 2027; target 598,000 by 2031
$37.8B in total targeted savings Same tabled modelling — Factual — tabled documentline-by-line breakdown
$13.2B from community Same tabled modelling Factual — tabled documentparticipation cuts — single largest measure
Bill 'primarily aimed at reducing Parliamentary Library Bills Factual — Parliamentary
projected growth in expenditure and Digest Libraryparticipant numbers’
4.2 Bill Text — Key Provisions
Claim Provision Status
Functional capacity assessed without s 9B(1)(a),(b) Factual — Bill textassistance, assistive technology, modifications, or environmental/personal context
Rules may prescribe thresholds, s 9B rule-making Factual — Bill textclassifications, methods, subsection circumstances deemed to exist or not
Permanence requires exhaustion of s 25A(a) Factual — Bill textall appropriate treatment
Treatment appropriate even if s 25A(b) Factual — Bill text
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 12inaccessible due to finances or geography
Minister may reduce funding below s 34A Factual — Bill textactual cost of R&N supports
s 34A determinations not subject to s 34A Factual — Bill textsunsetting
Automatic plan renewals are not s 50A Factual — Bill textreviewable decisions
CEO may issue transition notice s 48A / s 32B(3A) Factual — Bill textinstead of conducting reassessment
Incorporated external writings are not s 209(2AA) Factual — Bill textlegislative instruments
Computer programs may take Schedule 3, Part 2 Factual — Bill textadministrative action treated as action of the CEO
4.3 Explanatory Memorandum — Key Statements
Claim EM Statement Status
Assessment intended to 'confine the assessment to the Factual — EM verbatimconfine to ‘intrinsic ability’ person’s intrinsic ability’
Participants to be 'participants to be compared to their Factual — EM verbatimcompared to peers via peers’ benchmarks
Funding may be less 'funding for some NDIS supports may Factual — EM verbatimthan actual support cost be less than the actual cost of providing or acquiring the support’
Participant numbers 'well 'participant numbers in the Scheme Factual — EM verbatimbeyond original intent’ well beyond its original intent’
Bill responds to judicial 'Tribunal and Federal Court decisions Factual — EM verbatimexpansion of access have expanded the scope of access’
Sustainability not 'Ensuring the financial sustainability Factual — EM verbatimpreviously in objects — of the Scheme is not currently Bill adds it for first time incorporated into any specific object’
Incorporated writings not Confirmed in EM explanation of s Factual — EMsubject to disallowance 209(2AA)
4.4 Analytical Inferences — Confidence Assessment
Claim Supporting Evidence Confidence
s 9B represents an ICF mandatory environmental High — structural mismatch
ontological regression from factor requirements; s 9B exclusion between s 9B definition and
ICF (biopsychosocial) of context; WHO ICF 2001 model ICF requirements is direct
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 13toward the discredited 1980 description; Parliamentary Library and documentable
ICIDH (functional deficit) acknowledgment of biosocial model model
The governance framework Government's own NFP High — government
creates cumulative fettering documentation states review documentation confirms the
of delegate discretion examines 'acceptance of SNA' not structure; legal consequenceindividual supports; SOP is inference instruments specify steps; automated pathway logic pre determines outcomes
s 25A reverses Davis Davis held financial circumstances High — direct provision
[2022] FCA 1002 relevant to 'available' treatment; s comparison; EM confirms
protections 25A(b) explicitly removes intent to reverse judicialgeographic/financial access from expansion consideration
Automatic renewal and s ART Act requires genuine merits Moderate — jurisdictional
34A funding reductions review; NFP planning model argument is sound; whether
may hollow merits review replaces individual s 34 application ART accepts it is unknownjurisdiction with budget method verification; ART constrained to same formula as delegate
Community participation Human rights literature on Moderate — directional
cuts ($13.2B) will generate participation and isolation; no evidence strong; quantified
cross-portfolio alternative delivery system displacement unmeasured
displacement confirmed; state foundational pending implementationsupports not yet operational
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 14Appendix — Questions for Government
Witnesses
The following questions are provided for the Committee’s use with government witnesses. They are organised by provision. Each is designed to elicit a factual, evidence-based response that either confirms or tests the analytical claims in this and the substantive submissions already lodged.
On Section 9B — Functional Capacity Assessment
-
What specific assessment tool or tools will be used to operationalise the functional capacity definition in s 9B? Has the tool been selected? If so, when will it be published for public scrutiny?
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The Explanatory Memorandum states participants will be compared to their peers. What peer groups will be defined? By whom? Through what process? Will peer group definitions be published as legislative instruments subject to disallowance?
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The Technical Advisory Group will advise on thresholds for ‘substantially reduced functional capacity.’ What is the TAG’s composition, appointment process and accountability framework? Will TAG recommendations be published before being incorporated into Rules or non-legislative documents?
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Has the government assessed whether the intrinsic ability assessment model complies with the WHO International Classification of Functioning, Disability and Health, which the NDIS has historically applied? What independent validation has been conducted on the proposed assessment instrument for autistic participants, whose functional presentations are documented to be context-dependent, fluctuating and subject to masking?
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Will the University of Melbourne — the institution whose co-chair participated in the Review recommending the assessment approach and which has received a contract to build and validate the I-CAN tool — have any role in validating the instrument’s reliability for NDIS eligibility purposes? What independent validation arrangement exists?
On Section 34A — Funding Reduction Power
-
What actuarial modelling supports the funding percentage reduction levels the government intends to apply under s 34A? Has that modelling been independently reviewed? Will it be published?
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The Bill permits funding to be set below the actual cost of reasonable and necessary supports. How will the government ensure participants whose supports are structurally underfunded can supplement funding? Is it the government’s position that unmet need is an acceptable outcome of the new framework?
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Section 34A determinations are exempt from sunsetting. What mechanism will Parliament use to review and revoke determinations if they are found to produce disproportionate harm?
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Has the government modelled cross-portfolio liability displacement — specifically, whether savings from s 34A reductions will generate increased expenditure in health, housing, justice and income support systems?
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 15
On Section 25A — Appropriate Treatment
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The Bill provides that treatment is appropriate even if inaccessible due to finances or geography. This directly reverses the Federal Court’s interpretation in NDIA v Davis [2022] FCA 1002. What policy reason justifies reversing a judicial finding that specifically protected low-income and rural participants?
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For participants in regional and remote areas where specialist services are unavailable: under the new framework, how will permanence be established? Is the government’s position that these participants remain ‘untreated’ indefinitely?
On Section 209(2AA) — Non-Legislative Governance
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Why should operational documents that directly determine participant eligibility — scoring frameworks, assessment guidelines, classification manuals — be exempt from parliamentary scrutiny and disallowance? What accountability mechanism replaces disallowance once these documents are published on the NDIA website?
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What notification mechanism will ensure that participants, their advocates, and the public are informed when an incorporated document is updated in a way that changes eligibility outcomes?
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If the most consequential rules governing access to disability support for 760,000 Australians reside in documents Parliament cannot disallow, what is the practical meaning of parliamentary oversight of the NDIS?
On Automated Decision-Making (Schedule 3, Part 2)
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Which specific decision types are intended to be fully automated? Will a public register of automated decision types be maintained?
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What independent audit mechanism will be established to verify that automated decisions comply with procedural fairness, natural justice, and the duty to provide reasons?
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The CEO substitution power — the ability to substitute a human decision where the automated outcome is ‘not correct or not preferable’ — under what criteria and timelines will this be exercised? Who monitors whether it is being used appropriately?
On Overall Architecture
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The tabled modelling confirms 241,000 existing participants will exit the scheme by mid-2031. Which disability cohorts — by type, geography, age and income — are projected to absorb the largest proportions of that exit? Has the government conducted an indirect discrimination impact assessment under the Disability Discrimination Act 1992?
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The Bill contains 240 amendment items. The most consequential operational details — thresholds, assessment methods, peer benchmarks — are deferred to future instruments. Does the government consider Parliament has sufficient information to assess the Bill’s impact on existing participants? If not, why should commencement of the access framework not be deferred until that information is available?
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 16
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 17
References
1 Jervis-Bardy D, ‘New NDIS eligibility rules will cut 241,000 participants from scheme in four years, documents reveal’, The Guardian (Australia), 28 May 2026, citing departmental modelling tabled in Senate. 2 Parliamentary Library, Bills Digest — NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026. 3 NDIS Review, Working Better for People: Final Report of the Independent Review of the NDIS (December 2023). Professor Bruce Bonyhady AM was co-chair of the Review. 4 University of Melbourne/Melbourne Disability Institute contract for I-CAN tool build, implementation and validation research, 2024–2025. See also Australian Autism Alliance, statement on I-CAN validation concerns (2025). 5 Department of Health and Aged Care, Reviews and Appeals under the New Way of Planning, January 2026, p 2. 6 National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (Cth). 7 Explanatory Memorandum, NDIS Amendment (Securing the NDIS for Future Generations) Bill 2026 (Cth). 8 National Disability Insurance Agency v Davis [2022] FCA 1002 (Mortimer J). 9 Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mortimer J). 10 National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 34. 11 Administrative Review Tribunal Act 2024 (Cth). 12 Disability Discrimination Act 1992 (Cth), s 6 (indirect discrimination). 13 Convention on the Rights of Persons with Disabilities, arts 3, 5, 19, 26. 14 World Health Organization, International Classification of Functioning, Disability and Health (ICF) (2001). 15 Royal Commission into the Robodebt Scheme, Final Report (July 2023), particularly Chapter 11 (deterrent architecture findings). 16 Legislation Act 2003 (Cth), Part 4 (disallowance), Part 6 (sunsetting). 17 Minister for Immigration and Citizenship v Li [2013] HCA 18 — legal unreasonableness standard.
Renee Fisher
Independent Researcher and Legal Analyst — May 2026
Supplementary Attachment — NDIS Amendment (Future Generations) Bill 2026 — Renee Fisher | Page 18