National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026

Submission to Senate Standing Committees on Community Affairs

Date: 29 May 2026

**Committee Secretary: Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600 Via web portal Dear Committee Secretary

About the submission

National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 Thank you for the opportunity to provide submissions on the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (the Bill). The Bill would substantially amend the National Disability Insurance Scheme Act 2013 (the Act) and reshape the National Disability Insurance Scheme (NDIS or Scheme) in ways that we consider fundamentally incompatible with its founding principles.

Intrepidus Law Pty Ltd ACN 663 530 498. Liability limited by a scheme approved under Professional Standards Legislation.

1. About Intrepidus Law

Intrepidus Law is Australia’s foremost NDIS and disability rights law firm. The Principal and Founder of Intrepidus Law is Belinda Kochanowska, who was awarded the prestigious Queensland Law Society Solicitor of the Year Award in 2025 and was a finalist of the 2025 Australian Human Rights Commission Law Award.

Intrepidus Law has a practice focus on providing legal representation in NDIS appeals at the Administrative Review Tribunal and Federal Court of Australia, and providing expert legal advice on NDIS law. Intrepidus Law is a private legal practice committed to reinvesting in our communities through our Systemic Advocacy Program.

2. Executive summary and contents

Intrepidus Law opposes the passage of this Bill, which marks a philosophical shift from the founding principles of the Scheme. Participants’ choice and control over their lives would be transferred to a Minister with extraordinary powers absent meaningful safeguards or parliamentary oversight over almost every aspect of the Scheme.

This consolidation of executive power is to be achieved by transferring power from different arms of government and citizens who have been promised a role in maintaining the NDIS.

Our submissions are structured according to each stakeholder who loses out from this Bill:

• Participants ………………………………………………………………………………………………………………. 3
• Women, families and informal supports ………………………………………………………………………. 5
• Marginalised groups ………………………………………………………………………………………………….. 6
• Providers and the NDIS market …………………………………………………………………………………… 7
• Parliament and committees ……………………………………………………………………………………….. 8
• The States and Territories…………………………………………………………………………………………… 9
• The courts and tribunal ……………………………………………………………………………………………. 10
• The taxpayer …………………………………………………………………………………………………………… 11

Appendix – list of new or expanded ministerial powers …………………………………………………………… 13

Introduction

What is presented as ‘reform’ in this Bill is in fact a fundamental philosophical shift away from the founding principles of the NDIS: that people with disability are entitled to individualised supports, and that they must have genuine choice and control over how, when and by whom those supports are delivered. The repealing of s 31 is a stark demonstration of this. The Bill would strip the Scheme of those principles and replace them with values repugnant to our national character, including powers to target or discriminate against ‘classes of people’, ‘classes of providers’ and ‘classes of impairments’. A disproportionate focus on ‘rorts’ and ‘fraud’ has overshadowed this core purpose and fostered a culture of presumption and suspicion against participants and providers. The Bill would legislatively entrench that culture and undo years of advancement in the community inclusion of disabled Australians.

This Bill flies in the face of the findings of the Disability Royal Commission, which identified isolation and segregation as key drivers of violence, abuse, neglect and exploitation of people with disability - and identified autonomy and inclusion as the key safeguards therefrom. Under this Bill, the Scheme’s foundational value of participants’ choice and control over their own lives would be transferred wholesale to a Minister with extraordinary powers absent meaningful safeguards or parliamentary oversight over almost every aspect of the Scheme.

Our submissions track who has something to lose from the Minister’s extraordinary gains in unchecked executive power. It is participants who are directly targeted, and their families and informal supports who would be transferred responsibility for providing unpaid disability support. It is the once-thriving NDIS market, and the many women-led small businesses operating in it, that would be pushed out of an increasingly risky landscape. It is also other democratic institutions, who are being asked to sign a blank cheque. The Minister would be empowered to unilaterally implement almost any policy or financial change to the Scheme, without needing to: return to Parliament or its committees, secure agreement or even consult with state disability ministers, or comply with some future court or tribunal decisions.

1 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report (September 2023).

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Ultimately, the totality of this ministerial overreach goes against voters’ suspicions of centralising power in politicians and robbing people of a fair go, and is inconsistent with Australia’s founding legal principles of the rule of law, federalism and the separation of powers.

Overarching Recommendation

The Committee should recommend that the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 not be passed.

Participants

This Bill takes participants down a path to the time before the NDIS, when programs were block funded, and disabled people were more isolated from society and segregated in how they were allowed to access the community. The repealing of section 31, which provided the moral and human rights underpinning of the scheme, is a brazen demonstration of this regression to a pre-NDIS block funding model. The Bill does this through three interconnected mechanisms: arbitrary plan reductions, expanded exit pathways, and narrower access criteria.

Arbitrary plan cuts

Proposed section 34A would allow the Minister, by legislative instrument, to reduce funding for any specified group of supports by any percentage up to 99 per cent. This is an astonishing power that can be wielded arbitrarily against a mass of participants of the Scheme and it is not a reviewable decision. The requirement to ‘have regard to the safety of participants’ is of no real comfort, as it does not allow a court to determine whether or not the cut is unsafe — merely including the words ‘I have had regard’ in the legislative order is likely all that is required. Safeguards are needed to require meaningful impact assessments on vulnerable cohorts and limitations to ensure parliamentary scrutiny, for example, a transitional provision.

The Bill also empowers the Minister to set maximum amounts, intensities or ratios of supports for ‘classes of participants’ — meaning, for example, that the Minister could set a minimum number of residents per group home and ban 1:1 ratio supported independent living. This could return us to the pre-NDIS block-funded systems which held disabled people in congregate care. If the Government has no plans to do this, the power should not be given to this or any future Minister. This is also not a reviewable decision. This extraordinary power must be counterbalanced with review rights for those who as a result suffer significant disadvantage, risk or reduction in supports, in the form of a reviewable decision.

Under proposed section 50A, the concept of a “Successor Plan” is introduced. This Successor Plan appears to essentially freeze an old framework NDIS plan upon renewal under that section. That plan is not reviewable. Section 50A allows the Minister can determine any alteration to any participant’s plan when it is renewed under this section, including to remove supports from a plan. That decision is not reviewable. The power also can be applied mid-plan too: for plans which end after 1 October 2027 (which will in a few months become virtually every plan on the Scheme), the Minister is empowered to end those plans early. They are eligible for s 50A renewal at that point, with any alterations. An alteration can either take effect immediately, or lay dormant in a plan, to become triggered once the Minister’s pre-declared ‘circumstances’ occur. This could potentially allow a Minister to control participant behaviour with the threat of locking their supports, or set an overbroad condition (e.g., use of the plan) so the Agency can activate the dormant alteration at any convenient time.

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Most concerningly, section 50A alterations are deemed at law not to be reviewable decisions. Whilst s 50A preserves appeal rights over whether a support is reasonable and necessary, that is still subject to any ministerial alteration (see heading The courts and tribunal below). This deeming is a step further than opting not to list it as a reviewable decision in section 99: the pathway for the internal and external NDIS review. Instead, this is an attempt to deny any court jurisdiction. Whether the ministerial legislative instrument is beyond the power conferred by the Act would ultimately be a matter for judicial review in the federal courts, including potentially the High Court exercising its original jurisdiction.

Narrower access criteria and expanded exit pathways

This Bill would make it harder for people who genuinely need NDIS support to access it, leaving them without access to any support schemes. To satisfy the ‘permanency’ test to access the Scheme, s 25A would make it irrelevant if a treatment is ‘not available’ to you due to cost or distance.“ This impact will fall most where there are existing barriers to accessing healthcare: for First Nations, across rural areas and for socio-economic disadvantage. The existing definitions of ‘functional capacity’ are also to be narrowed by s 9B to exclude any environmental and personal circumstances. This directly offends the social model of disability. The Minister can unilaterally make rules ‘for determining any matter’ related to that test. It is unclear how far that could extend. Participants who currently have access can be reassessed for eligibility against these new tests.

The Bill’s most alarming access change is the proposed ‘alternative support requirements’ defined in s 25B. These would prevent access to the Scheme for any: e ‘class of persons’ defined by the Rules; e person who is captured by any ‘circumstances prescribed’ by the Rules;e person who seeks access solely for an ‘excluded impairment’, defined as an impairment covered by another program: either a workplace or motor vehicle accident compensation scheme, or any other support determined by the Rules. These are rules which the Minister could only use if agreed to by each state and territory, as they are listed as ‘Category A’ rules ins 209. Any participant who fails the ‘alternative support requirements’ can have their participant status revoked under s 30. Though this is a reviewable decision, it is irrelevant whether the alternative scheme is open to you or even exists — the test is whether you are on the list of ‘circumstances’, ‘excluded impairments’ or ‘class of persons’. This discriminates in a way which is repugnant to our national character, particularly the notion of treating differently a ‘class of persons’, and sets a dangerous precedent for executive power in the disability or indeed any human care focussed sector.

Recommendation 1: The Bill should be amended such that all mechanisms to narrow plans and eligibility are fixed within the primary legislation, not left to ministerial discretion. All transitional reforms to ‘reset’ the Scheme should have sunsetting clauses. If arbitrary cuts are retained, safeguarding mechanisms are required to empower the CEO to intervene to prevent serious harm to participants who would fall through the cracks.

This overrules the Federal Court decision of National Disability Insurance Agency v Davis [2022] FCA 1002.

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5. Women, families and informal supports

The NDIS was established in recognition that achieving gender equality requires addressing the disproportionate unpaid care load undertaken by women. This disproportionately limits their ability to participate in the paid workforce, accumulate superannuation and in many circumstances leave the home.

The Productivity Commission’s design of the Scheme expressly aimed to share the responsibility for care more evenly across society, and to do so in a way that preserved participants’ choice and control over who supported them.? This Bill takes Australia substantially backwards.

By cutting plans, narrowing access, and funnelling participants towards as-yet-unbuilt foundational supports, the Bill shifts the cost and labour of care back onto unpaid carers. The supports do not disappear; the cost is simply transferred from the state to the kitchen tables of Australian families.

There is also a sharper edge for participants themselves. The original design of the NDIS recognised that mandatory reliance on family members for personal care creates risks: of loss of autonomy, of complex power dynamics within families, and of vulnerability to family and domestic violence. The Disability Royal Commission documented these risks in detail. By forcing more participants into informal caring arrangements, the Bill increases each of those risks. It is common for women who mother disabled children to already struggle with the immense care load of unpaid disability work and balancing paid formal work. This is particularly perilous for sole parents who are women and for women who cannot work because of unpaid disability care who are also in domestic violence situations.

Intrepidus Law often represents women appealing their disabled child’s plan who are experiencing significant and dangerous levels of carer burnout under the current framework. The NDIA is known to tell parents of significantly disabled children that “the scheme does not fund babysitting”, wwhich evidences a disturbing lack of insight into the care load a parent of a child with a disability undertakes compared with a parent of a typically developing child the same age. The proposed Bill will more deeply entrench those attitudes, which we fear will place the most vulnerable children at risk and further diminish the value of the unpaid disability support work parents, and mostly women, provide disabled children.

For participants who are adults, and still in the care of their parents, the anendments will not encourage age-appropriate transition into independent living, further tethering parents to unpaid care, and subjecting adults to futures of unsustainable family dependence. Such dependence can foster the ingredients for abuse and neglect. The minister’s unchecked power to cap supports such as, for example, ratios of support for classes of people, will both indirectly and directly cause families who in desperation to avoid their loved one returning to group supported living because of past abuse and neglect, will take on that unpaid care as a sacrifice to avoid group supported living. This is a reform which will create a larger class of unpaid workers, unable to contribute to Australia’s productivity and workforce, unable to achieve the dignity of financial independence, unable to earn superannuation and pay taxes, and they will mostly women.

Recommendation 2: The Bill should not pass without a public, comprehensive gender impact analysis, and gender-responsive reforms co-designed with women, girls and gender-diverse people with disability, and their families and carers.

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6. Marginalised groups

The Bill does two things which, in combination, disproportionately impact participants from marginalised communities. First, it elevates financial sustainability to be the primary consideration behind almost every decision made under the Act. Second, it confers powers on the Minister to make determinations for ‘classes of participants’, ‘classes of impairments’ and ‘classes of supports’ (see, for example, proposed sections 9B, 25A, 25B and 32K — or see our “Appendix — list of new or expanded ministerial powers” for a full list of all new ministerial powers at the end of these submissions). The combined effect funnels the use of executive power towards participants who hold ‘cost risk’. Due to the structural nature of oppression, this is likely to result in the indirect targeting of minority groups.

First Nations participants

Rural and regional participants often pay more for supports because of lower provider density, longer travel times and higher wage premiums. Any ‘class-based’ decision that targets rural and regional cost profiles will disproportionately affect First Nations participants, many of whom live in remote and very remote areas of Australia and have a fundamental cultural need to remain on Country. In tightening the ‘fully treated’ definition, the Bill may prevent consideration of whether the medical intervention is culturally appropriate. For example, this may force people to leave Country for inpatient treatment in culturally unsafe carceral settings. Bill creates the legal architecture for this discrimination without ever needing to identify First Nations participants by name.

Culturally and linguistically diverse participants

Participants from culturally and linguistically diverse backgrounds are statistically more likely to rely on informal supports because of language barriers, cultural expectations of family care, and lower trust in formal services. Rather than clearing those barriers, the Bill would compound and entrench the reliance on informal supports. As women provide most care labour, this burden lies predominantly at that intersection. Both groups bear the cost without ever being named in the legislation.

LGBTQIA+ participants

LGBTQIA+ people with disability have particular needs that the Bill disadvantages in two specific ways. First, the tightened access criteria are harsher on chronic health conditions, and on conditions that are commonly misunderstood in clinical settings — both of which are over-represented in LGBTQIA+ communities. Second, being pushed to rely more heavily on family and informal supports is particularly difficult, and in some cases unsafe, for LGBTQIA+ people. They may be subject to complex power dynamics or family violence with people who could out them, or with parents who do not support their needs arising from sexuality, gender or sex characteristics. The Bill effectively forces some LGBTQIA+ participants to choose between two different kinds of unsafety.

Why the structural design matters

Each of these impacts could be defended on the basis that they are not the express purpose of the Bill — that the Bill is ‘class-blind’ on race, sex and sexuality. That defence misses the point. By instructing the Minister to base every decision on financial sustainability, and then giving the Minister broad powers to target certain ‘classes’, the Bill creates a structural mechanism for disadvantage that does not require any individual decision-maker to harbour ill-intent. The discrimination is built into the architecture.

Recommendation 3:

The Bill should not pass without a public, comprehensive impact analysis on people with disability from marginalised groups.

Providers and the NDIS Market

We have made detailed submissions on the cumulative pressures already facing NDIS providers – particularly small, sole-trader and women-led businesses with lived experience of disability. This Bill compounds those pressures rather than relieving them.

The NDIS was, by design, a market-based scheme, moving away from centralised block funding toward a diverse provider ecosystem where participants could choose who they work with and market forces could better drive quality. The accumulating red tape, risk of punitive and unforeseeable compliance action, and uncertainty around the expanding mandatory registration regime are making it increasingly commercially untenable for small and medium providers to continue operating.

Ministerial control of pricing

The Bill gives the Minister power to set the NDIS Price Guide directly by legislative instrument (schedule 3, part 1). We support changes that allow the Minister, Agency and NDIS Commission to adjust pricing mechanisms to incentivise quality and enable sensible distinctions between large providers and sole traders. However, the Bill transfers near-absolute authority to the Minister – the officeholder least insulated from adverse public pressure – incentivising reactive decision-making. Providers need year- on-year pricing predictability to invest in their business and sustain permanent employment.

Ministerial control of who counts as a provider

The proposed s 10C allows the Minister to depart from the starting-point definition of an NDIS provider in both directions – prescribing operators as providers or excluding whole classes of persons from the market entirely. Under ss 9 and 73E, the Minister can also define a ‘related party’ and prevent them from acting as a plan manager. The placement of ‘related party’ in s 9 suggests it could pair with other ministerial powers for broader application (see “Appendix – list of new or expanded ministerial powers”). E.g. perhaps s 45A powers could ban a ‘related party’ from claiming funds – overriding caselaw that family members can in exceptional circumstances be paid as disability support workers. These ‘Henry VIII’ powers (see below) significantly expand the risk of such unpredictable consequences.

Effect on the market

These settings risk driving a structural shift away from sole traders and small businesses toward larger corporate and centralised providers. That shift may suit some industrial relations objectives, but larger providers are typically less able to offer the bespoke, flexible, relationship-based support that participants want and that the Scheme was designed to facilitate. The result is a market where participants are told they can choose, but face only a limited pool of large corporate providers. When participants lose choice, they lose control – and when choice and control are diminished, risks escalate significantly. Choice and control are not merely philosophical ideals; they are protective mechanisms by which a person with disability can select safe providers, avoid harmful service environments, maintain trusted relationships, and tailor supports to their lived reality. The Bill is shifting the Scheme toward a centrally controlled, block-funded system – placing risk on participants and providers, destabilising the provider market, and prioritising cost containment over participant outcomes and a thriving, diverse NDIS market.

8. Parliament and committees

The executive powers conferred by this Bill are so broad that almost any policy change to the Scheme could be effected without ever needing to return to the federal Parliament or its committees. A non-exhaustive list of matters the Minister may determine without having to return to Parliament, includes:

• reducing funding for any specified group of supports by up to 99 per cent (s 34A);
• causing any alterations to participant plans without a right to review (s 50A);
• ending plans early to enliven the renewal alteration power (transitional item 58 of sch 1);
• prescribing the conditions under which NDIS inspectors and investigators may, or may not, exercise their powers (ss 73ZSL and 73ZSM);
• setting the price guide (schedule 3 part 1; ss 45C and 34B);
• determining who is and is not an NDIS provider (s 10C);
• requiring claimants and participants retain certain records (s 45B);
• prescribing circumstances in which a person is taken to be ‘fully treated’ (s 25A);
• declaring any ‘class of persons’, ‘conditions’ or ‘excluded impairments’ which are ineligible to access the Scheme and can have participant status immediately revoked (ss 25B, 30); and
• authorising automated decision-making by computer program, including for decisions involving the exercise of a discretion, the formation of a state of mind, or the making of an evaluative judgement (ss 59B–59E).

See “Appendix – list of new or expanded ministerial powers” for our complete list.

Each of these is a substantive policy lever. Together, they amount to a power to redesign the Scheme by ministerial fiat. Committees would be left in a reactive position, requiring the executive to provide answers on underway reform, rather than the Committee steering policy-design.

Henry VIII powers

The most troubling feature is the transitional rule conferring ‘Henry VIII’ powers. For any matter related to the changes this Bill would make to the Act, and which is of a ‘transitional nature’, the Minister can prescribe modifications to the Act itself, as if the text of the Act were being changed by Parliament. This power can be exercised for 12 months, with instruments to run up to 12 months further. The only express limits are matters that would clearly be unconstitutional in any event. In effect, Parliament is being asked to transfer a legislative function to the executive, for up to two years, to the greatest extent permitted by the Constitution. The Parliament should not sign a blank check to its responsible ministers.

The Government has justified this Bill on the basis of an apparent ‘pub test’ that the Australian public would not accept aspects of the present Scheme, based on a fraud and rorts narrative. We submit that the Government’s proposed solutions in this Bill fail that same test. The ordinary Australian, asked whether one Minister should be able to rewrite legislation and a statutory scheme without going back to Parliament, would answer no.

Why this matters

Parliament is not a procedural inconvenience. It is the deliberative institution in which the trade-offs of public policy are tested, contested and refined. Removing Parliament from the NDIS reform process does not make those trade-offs disappear. It simply removes the best forum by which they are accountable to the public.

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9. The States and Territories

The Bill also sidelines the States and Territories. In the current Act, ss 209 and 210 require that NDIS Rules be made with varying degrees of state involvement: unanimous agreement for category A rules, majority agreement for category B and C rules, and consultation for category D rules. These provisions reflect the constitutional and political settlement under which the Commonwealth received responsibility for disability service provision from the states.

Most of the NDIS Minsiter’s new powers are either category D, or side-step ss 209 and 210 altogether. The latter allows the Minister to unilaterally “declare, by legislative instrument” effectively any policy or financial change to the Scheme. By avoiding s 209, the Minister does not need to run these reforms through the Disability Reform Ministerial Council (Council) for consultation or even just for noting.

There are no category B or C powers conferred under this Bill. The only new category A powers are:

• Adjusting the definition of functional capacity (s 9B);

• Declaring classes of persons, conditions and ‘excluded impairments’ which are ineligible to access or remain on the Scheme (ss 25B, 30); and

• Setting new framework planning budget rules (ss 32H and 32K).

A broken promise

The states may consider these reforms to have broken the promise made by the Commonwealth when the NDIS was established. The States and Territories surrendered their existing disability service systems to the Commonwealth on the understanding that they would continue to have a seat at the table in overseeing disability support systems including the NDIS.

The involvement of the states is important, not just out of respect for their sovereignty, but because the policy questions involved in the Minsiter’s new powers are intimately tied to State and Territory systems of health, education, justice, child protection and housing. They are also principally responsible for the rollout of foundational supports, which requires a comprehensive understanding of all substantial reforms to the Scheme. The unequal fiscal bargaining power of the States and Territories compared to the Commonwealth only compounds this importance.

When the NDIS shrinks, it is the State and Territory systems that carry the cost. Whether or not a State or Territory can prepare its service systems for sudden demand shocks should not depend on the strength of its relationship to the NDIS Minister. As a matter of good government, all significant non-statutory reforms should be run through the Council.

Why this matters

Federalism is not an artifact of history. It exists in part because the people closest to the consequences of a decision should have some voice in making it. The Council brings together Commonwealth, State and Territory representatives who are on various axes closer or further from the consequences of these decisions. Centralising policy-making power in one office is, in our submission, a serious structural error in the Bill.

Recommendation 4: The Bill should be amended so that all legislative instruments must be made by agreement (unanimous or majority) with State and Territory disability ministers per s 209.

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10. The courts and tribunal

As a preliminary note, we are reassured that some appeal rights are preserved in this Bill. Courts and tribunals will continue to play important roles under the new framework — for example, in compelling the Agency to conduct a plan reassessment when a participant needs one, and in reversing improper suspensions or revocations of a participant’s status. These are critical safeguards.

We are disappointed that the Bill overturns the effect of important Federal Court of Australia NDS decisions, including McGarrigle, Davis, Sutherland and Eastham,* which have provided meaningful clarification of participants’ rights and the Agency’s obligations. However, we recognise that statutory overriding caselaw is a legitimate, as the Parliament is democratically accountable.

d Fettering the judiciary’s role

The Bill undermines the role of the courts, and the Administrative Review Tribunal (Tribunal), in saying what the law means — a core tenet of our system of government and a critical safeguard against arbitrary executive action. As lawyers and officers of the courts, this deeply concerns us.

The proposed section 50A would allow the Minister to alter any NDIS plan being renewed under that section, or set conditions which would trigger effects mid-plan. The Bill does not merely omit these alterations from the list of section 99 reviewable decisions. It deems them, at law, not to be reviewable decisions at all. The preserving of the appeal right over which supports are reasonable and necessary in a plan is irrelevant in this context.

The consequence of this power is striking. If a court or the Tribunal were to rule that a participant is entitled by law to a particular support under the amended Act, it appears the Minister could still strip that support from the participant’s plan on renewal — and from the plan of every other participant who would have benefited from this precedent. The participant would have no avenue of appeal to the very body that had recognised their right in the first place. This could also be done in anticipation of a decision adverse to the Agency, potentially leaving a court without jurisdiction to continue hearing the matter.

As the Minister can set a ‘method for determining alterations’, this allows the power to be used by Agency staff. It also appears the power also extends to causing an alteration to a particular participant’s plan on an ad hominem basis. In the context of overriding, intentionally or accidentally, a decision of a court of the Tribunal, this is extremely alarming.

If the attempt to fetter the jurisdiction of the courts is effective, the High Court’s original jurisdiction under the Constitution would be the only forum which can consider if a Minister’s legislative instrument is lawfully made under the Act. This poses a substantial access to justice concern.

d Why this matters

The separation of powers is the practical mechanism by which the executive is held to law. Allowing a Minister to prevent the courts saying what the law means is incompatible with our system of government.

Recommendation 5: The Bill should be amended to make s 50A alterations reviewable decisions.

• McGarrigle v National Disability Insurance Agency [2017] FCA 308; National Disability Insurance Agency v Davis [2022] FCA 1002; National Disability Insurance Agency v Sutherland [2026] FCA 3; Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147.

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11. The taxpayer

The Bill is presented as a measure to bring the cost of the Scheme down. It will probably succeed in reducing the Scheme’s expenditure. But it does so in arbitrary ways that simply transfer cost to other parts of the public sector and to households — all while missing opportunities to fix the real problems with the Scheme’s compliance infrastructure and other drivers of its total cost.

Cost transfer to other public systems

Every participant who is exited from the Scheme, or whose plan is reduced beyond their actual support needs, will continue to need support. Those costs do not disappear; they reappear in other systems. The full rollout of foundational supports will result in a more cost-effective service delivery of supports to some people. However, that effect is likely to be limited, and is irrelevant until foundational supports are actually built.

In the meantime, avoidable hospital admissions go up, since allied health and community supports are being cut, or people are abandoned with nowhere else to go. Mental health crises escalate when therapy and wraparound supports are unavailable. Justice, education and child protection systems carry an increased load when families fracture under unsupported caring responsibilities and unmet behavioural need. The cost is the same. It is just paid by a different department, less efficiently.

Opportunity cost

There are also significant opportunity costs that do not appear in the 2026 Budget. Many participants currently use NDIS supports specifically to enable paid employment; when those supports are cut, those participants lose their jobs and the public purse loses the tax revenue. Family members who are currently employed will be forced to reduce hours or leave employment altogether to provide unpaid care, with the same effect. This is why every $1 invested in the Scheme returns $2.25 to the economy.

What the Bill does not fix

The Bill does not address the actual administrative and infrastructure problems that drive Scheme cost. We have made detailed submissions on these problems in our previous parliamentary submissions, including: the lack of point-of-sale compliance infrastructure; the burden placed on participants and providers in discerning unclear claim requirements; the misuse of sections 45 and 45A powers as quasi-fraud investigations; and the absence of fair and efficient appeal pathways. The integrity infrastructure announced earlier in 2026 — a Medicare-style digital payments system, clearer plans, and proper appeal rights — is the right direction.

Recommendation 6: A better way to reform the Scheme

There are smarter ways to bring the growth of the Scheme down and to return it to its founding principles. Robust digital payments infrastructure, built along Medicare lines, would prevent non-compliant claims from being made in the first place. Clearer plans would let participants and providers understand what they are entitled to. Fair and well-resourced appeal pathways would resolve disputes early. Investigatory powers, used properly, would catch actual fraud. The reform path is available. For further information, see our previous submissions.’

7 Inquiry into the NDIS Amendment (Integrity and Safeguarding) Bill 2025, Intrepidus Law Submission #37; Inquiry into the administration of the National Disability Insurance Scheme, Intrepidus Law Submission #38; Inquiry into the Integrity of the National Disability Insurance Scheme, Intrepidus Law Submission # 57.

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12. Conclusion

The Bill should not be passed. Beneath the language of integrity and sustainability is a structural redistribution of power away from participants, families, providers, Parliament, the states and the courts towards a single Minister. Under this Bill, everyone loses but the Minister. Future generations stand to re-inherit the broken system of disability support which existed pre-2013. We urge the Committee to recommend that the Bill not be passed, and that any future reform of the Scheme be led by people with disability in genuine partnership with government and the people who make their livelihoods through the NDIS market. We would welcome the opportunity to give oral evidence to the Committee.

Appendix — list of new or expanded ministerial powers

Table 1: Powers exercisable unilaterally by legislative instrument

Section Heading	Ministerial power
s34A Determination reducing funding	Power to reduce funding for a specified group of supports by any percentage up to 99 per cent.
s50A Renewal of participant’s old framework plan on end date	Power to determine alterations to plans at renewal, or circumstances which trigger alterations mid-plan. Deemed not to be a reviewable decision.
Sch 1 item 58 Transitional provision for reassessment dates in old framework plans	Power to end early any plan that would otherwise have ended after 1 October 2027. N.b. enlivens s 50A renewal-alteration powers.
s 32K(6) Reasonable and necessary budget—working out total funding amounts	Inserts requirement that the Minister take into account the principles in ss 17A and 17B (and the financial sustainability of the Scheme per s 209(3)) when making rules under s 32K(1).
s 73ZSL Determination relating to exercise of regulatory powers by NDIS inspectors and investigators before and during the exercise of their powers.	Power to determine conditions that must be met
s 73ZSM Determination relating to when powers must not be exercised	Power to determine circumstances in which inspector and investigator powers must not be exercised.
Sch 3 pt1 Decision-making on pricing the NDIS Price Guide	A range of powers which allow the Minister to set directly, with flow-on effects through Agency decision-making.
s 59C Designated provisions	Power to determine which administrative decisions, powers or other matters under the Act may be automated.
s 59E Oversight and safeguards for automation of administrative action exercising power that could be validly exercised by a human.	Power to require the CEO to do certain things in determining whether a computer program is

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Section

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Heading

Ministerial power

Sch 5 item 1 Transitional rules Power to prescribe modifications to provisions of the Act as if text was modified, for any matter of a temporary nature related to the changes the Bill makes. Power to pass new instruments expires after 12 months, with new instruments to run up to 12 months further.

Table 2: New powers to make Category D rules (State and Territory consultation only)
Section Heading Ministerial power
s25A Meaning of appropriate treatment
etc. person is taken to be fully treated for access
purposes.
s 45C Maximum amounts payable under
the National Disability Insurance where the participant’s plan funding is not
Scheme—funding not managed by
participants
s 34B Increasing funding under old framework plans to reflect prices set under s 45C.
changes in maximum amounts
under section 45C
s 10C Definition of NDIS provider
prescribing a person or entity as an NDIS provider;
or (b) prescribing a class of persons or entities as
not NDIS providers.
s 73ZSI Compliance notices
notice matters.
s 45B Keeping and retaining records relating to claims etc.
kept following a claim. Limited to records that
relate to the claim or to the provision of the
support claimed.
ss 9 and 73E Registration as a registered NDIS provider
party from being a person’s plan manager.

Section

INTREPIDUS LAW

NDIS LAW | DISABILITY RIGHTS

Heading

Ministerial power

s 32L(4a)(c) Assessment of participant’s need: Power to prescribe additional persons (beyond for supports Agency staff or consultants) who can perform a support needs assessment.

s 209(2) The National Disability Insurance Allows NDIS rules to adopt an instrument or other writing in force, now including with any modifications.

Table 3: New powers to make Category A rules (require State and Territory agreement)

Column 1	Column 2
Section Heading	Ministerial power

s 9B Definition of functional capacity: Power to make provision for determining any matter for the purposes of defining functional capacity — including methods or criteria, classifications or thresholds, matters that may or may not be considered, and circumstances which are taken to exist or not exist at law.

s 25B Alternative support requirements: Power to declare a class of persons, circumstances or ‘excluded impairments’ which do not meet access to and can be removed from the NDIS.

s 83 Nominee to inform Agency of matters affecting ability to act as nominee: Power to prescribe matters which a nominee must explain to the Agency how the event or change is likely to affect those matters, if the nominee meets the legislative duty to inform the Agency of changes in circumstances. (Appears to not have been assigned a category in s 209, possibly in error, so is Category A by default.)

s 32H(2)(e) Reasonable and necessary budget—requirements relating to acquisition or provision of supports: Power to insert additional matters of which the CEO must be satisfied.

s 32K Reasonable and necessary budget—working out total maximums and other parameters used in setting funding amounts budgets.

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