NDIA Accountability Project

Discrepancies between the NDIS Amendment Bill and supporting evidence

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Evidence-based policy, or policy-based selective citation? Assessing the credibility of the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026, through a comparison with its own alleged supporting evidence

A Submission to the Senate Standing Committees on Community Affairs, 29 May 2026

Dear members of the Community Affairs Legislation Committee,

I’m writing to you today to bring to your attention some discrepancies I have uncovered, between the (hereafter ‘NDIS Amendment Bill 2026’) and the evidence cited to justify its proposals. If left unaddressed, these discrepancies risk undermining public trust in the NDIS, as they bring into question its status as evidence-based policy. More importantly, they also bring into significant question the proposed measures’ ability to achieve their stated goal of financial sustainability. If the Bill turns out to have indeed misunderstood its own evidence base, then there is no ground to believe that it has correctly identified the drivers of the NDIS’s financial instability, or that it has provided the most appropriate measures to address them.

As a History postgrad, I should be reasonably qualified to do close readings of primary and secondary sources, and to assess the accuracy of source citations. In the interest of transparency, I can also mention that I’m a current NDIS participant. As I’m about to demonstrate, however, many of these discrepancies are obvious to the point of being self-evident, to any rational observer reading the relevant documents side by side.

In Table 1 below, I’ve presented, without commentary, some direct quotations from the Explanatory Memorandum of the NDIS Amendment Bill 2026, and the NDIS Reforms Impact Analysis (2026) attempted to it. Alongside them, I’ve presented direct quotation from the 2023 NDIS Review, the first of the ‘key independent reports’ named as evidence at the start of this Explanatory Memorandum (p. 2).

Table 1: Some comparisons between the NDIS Amendment Bill 2026 and the 2023 NDIS Review

NDIS Amendment Bill 2026 2023 NDIS Review
Consultation ‘Consultation on the new eligibility ‘While everyone agrees the process
assessment process based on needs significant reform, we are
functional capacity will commence acutely aware of the anxiety that
from August 2026.’ (NDIS Reforms comes with change. Previous attempts
Impact Analysis 2026, p. 256; emphasis at reform — most notably the
added) introduction of Independent
Assessments in 2021 — were not done
in consultation with the disability
community and, as a result, provoked
considerable anxiety and anger. These
were a short-cut algorithm driven
approach to planning that was never
validated or transparent.’ (NDIS Review
2023, p. 36; emphasis added) 
                                           'We have consistently heard from all
                                              stakeholders that implementation of
                                               NDIS reforms to date has not been

Limiting participant-requested plan reassessments

‘Unscheduled plan reassessments are a key driver of plan and whole of Scheme inflation as they frequently increase the value of a plan, even where increases are not necessary or appropriate.’ (Explanatory Memorandum, NDIS Amendment Bill 2026, p. 17; emphasis added)

‘There is no single issue driving the growing cost pressure of the NDIS. … The lack of trust between participants and the NDIA, driven by the adversarial planning process, and at times a ‘use it or lose it’ approach by the NDIA, has encouraged people to fight for as much support as possible. It is a rational response to fear that support will be taken away at the next planning meeting. People also do not trust the NDIA to respond in a timely or adequate way if circumstances change.’ (NDIS Review 2023, p. 31; emphasis added)

Implementing lessons from Federal Court and Tribunal decisions

‘Action 3.9 recommended legislative changes to strengthen the operation of the permanence criteria following the Federal Court decision known as National Disability Insurance Agency v Davis [2022]. Proposed amendments in Schedule 1, Part 8, will insert a definition and approach to assessing permanence of impairments when determining whether a person meets the disability requirements or early intervention requirements.’ *(Explanatory Memorandum, NDIS Amendment Bill 2026, p. 5)

‘The Department of Social Services should consider the need for legislative changes to strengthen the operation of the permanence criteria in section 24(1)(b) of the NDIS Act and in the NDIS Rules while ensuring that treatment for people with disability outside the NDIS likely to be affected by the change is available and affordable (following the Federal Court decision known as National Disability Insurance Agency v Davis). This process should include extensive engagement with people with disability and representative organisations, as well as administrative law experts.’ (NDIS Review Supporting Analysis 2023, p. 248, on the implementation of Recommendation 3, Action 3.9; emphasis added)

‘Amendments should be developed once the assessment process and agreed definition of substantially reduced functional capacity have been appropriately designed as set out in Action 3.8.’ (NDIS Review Supporting Analysis 2023, p. 248, on the implementation of Recommendation 3, Action 3.9; emphasis added)

Assessing ‘[Schedule 1 sets out measures that] clarify the meaning of “functional capacity” and provide for the assessment of thresholds of functional capacity. This is consistent with Recommendation 3 (action 3.1) of the NDIS Review …’ (Explanatory Memorandum, NDIS Amendment Bill 2026, p. 2; emphasis added)

	‘Proposed new subsection 9B(1) would define “functional capacity”. A person’s functional capacity will relate to their ability to undertake an activity without assistance from other people, assistive technology or modifications and in a setting that excludes, as far as possible, the impact of the person’s environmental and personal circumstances.’ (Explanatory Memorandum, NDIS Amendment Bill 2026, p. 15; emphasis added)

Ineligibility based on access to compensation schemes ‘Action 2.15 recommended updating governance of the NDIS and compensation schemes … Proposed amendments in Schedule 1, Part 9, would tighten eligibility to the NDIS where alternative supports are available through other service systems which can reasonably meet the needs of a person, 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.’ (Explanatory Memorandum, NDIS Amendment Bill 2026, pp. 5–6; emphasis added)

‘The NDIS was never meant to replace the supports that other compensation schemes provide. The NDIS can, however, offer complementary supports that a compensation scheme

does not provide. As such, around four ’Some participants will seek access to per cent of NDIS participants as of June the NDIS where they live with a range 2023 also have supports provided of impairments, including some that through compensation schemes. have resulted from a motor vehicle accident or work-related injury. Where ‘This interface can be complicated and a person’s impairments are all as a sensitive. It can take a long-time for result of one of these events, it is compensation to be agreed on, likely the participant will be especially outside of no-fault schemes considered to have excluded in a contested setting like a court. In impairments where another service addition, seeking compensation may system is appropriate or responsible for be traumatic, requiring people to addressing their needs.’ (Explanatory relive their own injuries and those they Memorandum, NDIS Amendment Bill love and go through multiple 2026, p. 67; emphasis added) bureaucratic processes.’) (NDIS Review Supporting Analysis 2023, p. 203; emphasis added)

’Reasonable ’The purpose of these amendments [in ‘Action 3.3: The National Disability and necessary Schedule 1, Part 3] is to clarify that Insurance Agency should change the support’ where multiple impairments or basis for setting a budget to a whole- comorbidities exist, only the support of-person level, rather than for needs arising from impairments for individual support items. This would which the participant meets the require Australian governments disability or early intervention agreeing to redefine reasonable and requirements are eligible for NDIS necessary in the National Disability funding.’ (Explanatory Memorandum, Insurance Scheme Act 2013 and NDIS NDIS Amendment Bill 2026, p. 24; Rules as the total amount of funding emphasis added) determined to meet the support needs of a participant. … A whole-of- ‘Replacement paragraph 34(1)(aa) will person budget should be sufficient to provide that a reasonable and cover the amount and type of support necessary support must be necessary needed to enable the participant to to address needs of the participant participate in an inclusive life.’ (NDIS arising directly from an impairment in Review 2023, Recommendation 3, relation to which the participant Action 3.3, p. 92; emphasis added) meets the disability requirements or early intervention requirements. This ‘Often planners are restricted by the direct link between a support and an NDIA and its systems to focus on a impairment is critical in upholding the limiting concept of a primary purpose of the Scheme.’ (Explanatory disability (which has only been Memorandum, NDIS Amendment Bill maintained due to limitations of NDIA 2026, p. 25; emphasis added) technology). Evidence that does not strictly relate to the “primary” disability“ diagnosis in the NDIA system is often not used. This is because supports will not be funded under the NDIS if it is not related to the participant’s disability. The NDIA appears to take the view that a participant’s disability is the specific

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“diagnosis or impairment that access to the NDS was granted for. This is confusing for participants with multiple disabilities who justifiably understand their needs more holistically and expect the same from the NDIS.” (NDIS Review Supporting Analysis 2023, p. 260; emphasis added)

Whether the Bill aligns with the 2023 NDIS Review is no trivial matter. In its ‘Consultation’ section, the Explanatory Memorandum mainly gives statistics for the consultation work done by the NDIS Review, on the ground that ‘many of the proposed amendments respond to, or have been informed by,’ recommendations of the NDIS Review’. The only new consultation work outside of previous independent reviews listed, in fact, is a public consultation from 19 December 2025 to 28 February 2026 on the definition of NDIS provider (Explanatory Memorandum, NDIS Amendment Bill 2026, pp. 5–6). If the NDIS Amendment Bill 2026 is anything other than a direct extension of the 2023 NDIS Review, however, then that means no consultation on the proposed changes to NDS access and planning has been done at all – and the impressive numbers at the start of this section (‘over 10,000 people and organisations’, ‘4,600 online submissions’, and so on) are, at best, highly misleading.

I shall defer to legal experts on whether this violates the consultation and explanatory statement requirements in section 17 and subsection 15J(2) of the Legislation Act 2003. Regardless, it does not take a lawyer to recognise that to debate on the NDIS Amendment Bill 2026 is to debate on future predictions. The Bill promises us that if we implement its ideas and embed them at the legislative level now, the long-term sustainability of the NDIS for future generations will be assured, and any immediate costs it generates between now and then will turn out to be justified. Given that we cannot directly observe these promised outcomes, the only non-arbitrary grounds we have for granting it credibility would be the strengths of its modellings of the future, based on present facts and evidence.

Currently, the evident lack of coherence between the NDIS Amendment Bill 2026 and the known facts means that, at the very least, we will need to seriously consider the possibility of the Bill’s proposed measures failing achieve the promised financial sustainability. At this point, I do believe the question any sensible Australian would ask is this: is it rational to enshrine ‘sustainability’ measures with a serious chance of failure at the legislative level, making it harder to perform course-correction later, if something does go wrong?

The 2023 NDS Review has a section titled ‘Implementation should be guided by lessons from the past’ p. 269). It is a brief but clear summary of how both the initial NDIS roll-out and the subsequent reforms suffered from issues such as hastiness, lack of consultation, and inadequate testing, which led to long- during impacts on the NDIS’s stability and sustainability despite the best of intentions. In other words, The NDIS Amendment Bill 2026 is not the first attempt at reforms in this area, or the first with noble intentions like ‘financial sustainability’, or even the first that skips out on things like testing or consultation. We have no reason to believe that it will not also become just another attempt at reforms that ironically contributed to further unsustainability, either.

Kind regards,

Athenodora Cat

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Reference list

  • NDIS Reforms Impact Analysis – Department of Health, Disability and ageing (2026) National disability insurance scheme reforms: impact analysis, report released as supporting document attached to the explanatory memorandum of the national disability insurance scheme amendment (securing the ndis for future generations) bill 2026, department of health, disability and ageing, australian government, accessed 21 may 2026.

  • ndis review – department of the prime minister and cabinet (2023a) working together to deliver the ndis – independent review into the national disability insurance scheme: final report, department of the prime minister and cabinet, australian government, accessed 21 may 2026.

  • ndis review supporting analysis – department of the prime minister and cabinet (2023b) working together to deliver the ndis – independent review into the national disability insurance scheme: final report: supporting analysis, department of the prime minister and cabinet, australian government, accessed 26 may 2026.

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