Submission 432
Submission to the Senate Standing Committee on
Community Affairs
Inquiry into the National Disability Insurance Scheme Amendment
(Securing the NDIS for Future Generations) Bill 2026
Submitter: MAGNA Performance & Risk Consulting
Date: 29 May 2026
MAGNA Performance & Risk Consulting consents to publication of this submission in full, including the organisation’s name. The structural analysis, fiscal modelling, figures, and amendment drafting are MAGNA’s original work, offered to the Committee for use with attribution. This submission addresses the provisions of the Bill and attaches no personal or case material.
1: Executive summary
MAGNA Performance & Risk Consulting is an Australian consultancy providing structural and operationa analysis of the NDIS and its policy environment. We have read the National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 (113 pages, 5 Schedules, introduced 14 May 2026) clause by clause against the National Disability Insurance Scheme Act 2013, the Legislation Act 2003, the Commonwealth Constitution, and the treaty and Royal Commission frameworks it engages We support the objective of long term sustainability for the Scheme; we do not support the legislative architecture the Bill uses to pursue it.
The Bill departs from the standard scrutiny framework in three structural ways that together weaken the checks Parliament has built around delegated legislation:
First, it is an architecture, not a policy: who qualifies, how much funding, and what is “reasonable and necessary” are not in the Bill but in Ministerial instruments and rules made after passage.
Second, the new Standard Operating Procedure Instrument (SOPI) class sits outside the Legislation Act 2003: under s 59D(6) SOPIs are notifiable, not legislative, so they are not tabled, no disallowable, not reviewed by the Senate Scrutiny of Delegated Legislation Committee or the PJCHR and not sunsetted, yet they are the operating rules through which automated decisions under s 59B(4) reach participant cases.
Third, ss 34A and 25B(4) read together create a legal route to group level exclusion: s 34A lets the Minister cut funding for a group of supports across all plans in force, by any percentage below 10 per cent, without individual amendment or merits review, and s 25B(4) lets declared alternative supports operate as an access gate, with no statutory readiness gate or compatibility statement against the Convention on the Rights of Persons with Disabilities (CRPD) or the Disability Discrimination Act 1992 (DDA).
A fiscal dimension sits underneath. Properly costed, the Bill transfers cost from the Commonwealth NDIS line to State delivery, Commonwealth income support, Medicare allied health, State education, and aged
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care; MAGNA’s whole of government model puts the 10 year differential at $86.2 billion (Section 3).
Three further provisions warrant amendment in their own right:
the s 9B functional capacity test, assessed unaided in a context that excludes the person’s circumstances with the threshold and tool left to rules (Recommendation 7);
the s 45C Ministerial pricing power, with no independent advisory body and pricing content able to s in external writings that escape disallowance (Recommendation 8); and
the s 34(1G) to (1J) parental responsibility presumption, a sex disparate care load default engaging indirect discrimination under the Sex Discrimination Act 1984 and CEDAW (Recommendation 9).
We make nine recommendations, each drafted as an amendment that fits the existing architecture, can b accepted independently, and restores a standard disallowance, review, readiness, or compatibility check without disturbing the policy objective. We engage the Bill against the Legislation Act 2003 framework, the s 75(v) constitutional floor, the treaty and Royal Commission regimes, and the institutional norms of the
Office of Parliamentary Counsel (OPC) Drafting Directions, the PM&C Legislation Handbook, Senate
Standing Order 24, the Office of Impact Analysis, and the Public Service Act 1999 APS Code of Conduct.
2: Recommendations
# Recommendation and effect Bill provision Authority restored
1 Repeal the automated decision power and the s 59B(4); s CRPD Art 12; Robodebt RC Recs
safeguard non invalidation clauses; removes statutory 59E(3) and (5) 17.1 to 17.2; ADJR Act 1977 s 5;authorisation for a computer program to exercise common law procedural fairness; discretion, make an evaluative judgement, or form a state s 75(v) of mind, and removes the clauses that say a safeguard breach does not invalidate the action
2 Reclassify SOPIs as legislative instruments; brings s 59D(6) Legislation Act 2003; OPCStandard Operating Procedure Instruments within tabling, Drafting Direction 3.8; Senate SO
disallowance, Scrutiny Committee and PJCHR review, and 24 10 year sunsetting
3 Insert a statutory readiness gate on the alternative s 25B(4) CRPD Art 19; CRC Art 23(2);supports declaration; prohibits a s 25B(4) declaration Federal Financial Relations Act unless independent certification confirms the alternative 2009 supports are available and accessible to the affected cohort in their State or Territory, tabled in each House
4 Require compatibility statements for cohort funding s 34A CRPD Art 5; CRC Arts 18(2) andreduction determinations; requires each s 34A 23; ICESCR Art 2(1); CEDAW Art determination to be tabled with a statement of compatibility 5(a); DDA 1992; Human Rights with the CRPD, the DDA, and any other engaged treaty (Parliamentary Scrutiny) Act 2011; Legislation Act 2003
5 Restore sunsetting for the six exempted Ministerial Sunsetting Legislation Act 2003 Part 4 of
determinations; reapplies the standard 10 year disapplication Chapter 3; OPC DraftingLegislation Act 2003 sunset to s 34A, s 34B, s 45C, s Direction 3.8 50A(3), s 50A(7), and s 73ZSL
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# Recommendation and effect Bill provision Authority restored
6 Constrain the Schedule 5 transitional rule making Schedule 5 Non abdication (Victorianpower; prevents transitional rules from modifying the Stevedoring v Dignan); OPC substantive amended sections and caps the transitional Drafting Direction 3.8
window
7 Put the functional capacity threshold on the face of s 9B CRPD Art 12; ICESCR Art 2(1);the Act and require tool validation; requires statutory OPC Drafting Direction; Senate criteria for “significant reduction in functional capacity” and SO 24
mandatory independent validation of any assessment tool
before it can be specified in rules
8 Create an independent pricing advisory body and s 45C, in ICESCR Art 12; Legislation Act
close the external writings loophole; requires an particular s 2003; Senate SO 24independent pricing advisory body with published advice, 45C(11) to (13)
and prohibits sub delegation of pricing content to non legislative external writings
9 Remove the hard prohibition limbs of the parental s 34(1G) to (1J) CRC Arts 3 and 23; CRPD Art 7;responsibility presumption and add a best interests CEDAW Art 5(a); Sex qualifier; omits s 34(1J) and qualifies s 34(1G) so the Discrimination Act 1984 s 7B and presumption cannot override the best interests of the child s 7C or produce indirect sex discrimination
3: Findings and fiscal context
Finding 1: The Bill is an architecture, and its central choices cannot be sized when the
Senate votes
The Bill runs 113 pages across five Schedules, but the substantive eligibility, funding, and “reasonable a necessary” decisions are not in them; they are delegated to rules and instruments made after passage, s
its central choices cannot be sized when the Senate votes:
Who qualifies turns on the new permanence test (ss 24(5), 25(1B), 25A) and the alternative suppor gate (s 25B(4)), but the operative definitions of “appropriate treatment” and “alternative support” are not in the Bill. The s 25B(4) declaration is the legal hook for the stated target of approximately 160,000 fewer participants by 2030.
How much a plan attracts runs off s 45C price caps set after passage, with s 45C(11) to (13) letting pricing content sit in external writings that are not legislative instruments.
What counts as “reasonable and necessary” is set by s 34 as modified by ss 34(1G) to (1J), applied through assessment tools under s 32L and functional capacity definitions under s 9B. The assessment tool is being designed by an external party and is not in the Bill.
The transitional period is governed by Schedule 5 rules made after passage that can modify the Act’s operation for 12 months. Those rules sunset; the substantive amendments do not.
This is a lawful drafting choice but not the standard one: the OPC Drafting Directions prefer core entitlement criteria affecting an identifiable cohort to sit in primary legislation, which receives the debate and vote that delegated instruments do not. The Senate is asked to authorise powers whose participant and dollar impact are not fixed until after it has voted.
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Finding 2: The SOPI class sits outside the standard delegated legislation framework
New s 59D(6) makes a Standard Operating Procedure Instrument (SOPI) a “notifiable instrument” rather than a legislative one. That single classification choice removes the standard controls:
it is not tabled in Parliament;
it cannot be disallowed (s 42 of the Legislation Act 2003 reaches only legislative instruments);
it is not reviewed by the Senate Scrutiny of Delegated Legislation Committee or the Parliamentary Joint Committee on Human Rights (PJCHR); and
it does not sunset (Part 4 of Chapter 3 applies only to legislative instruments).
A SOPI therefore runs permanently unless the agency itself revokes or amends it.
Yet these instruments are central to how the Bill works. Under s 59C(1) a SOPI is the operating rule that applies a designated provision to a participant’s case, and under the new automated decision making power in s 59B(4) a computer program applies it. Every plan decision, claim, payment, and pricing outcome therefore sits downstream of a SOPI the Senate has never seen, including the s 9B functional capacity definition, the s 34(1G) to (1J) presumption, the shortened 90 day claim window (s 45A, reduce from two years), and the s 45C price caps. A claim can be refused by a computer program forming a “sta of mind” under s 59B(4), measured against a rule the participant cannot read alongside the Act. The only remedy is judicial review for jurisdictional error under s 75(v) of the Constitution (Annex). This is the largest single scrutiny gap in the Bill.
Finding 3: ss 34A and 25B read together create a legal route for group level exclusion
Two new powers, read together, let the Minister narrow the Scheme for a whole cohort without changing any individual plan.
First, s 34A lets the Minister reduce funding for a specified group of supports across every plan in force that contains them. The reduction may be set at “a percentage (lower than 100%)” (s 34A(1)(a)), so the funding for a support can be cut to almost nothing. Plans are not individually amended (s 34A(4): the determination “does not have the effect of altering, or requiring alterations to, the text of the plans”), and there is no merits review of how it applies to a plan. The only stated constraint is that the Minister “have regard to the safety of participants” (s 34A(3)), a phrase the Bill does not define.
Second, s 25B lets the Minister declare, by rule, that a support is an “alternative support” for an impairment, which makes that impairment an “excluded impairment”. The declaration may be made “by reference to the system of service delivery … through which the support is offered” (s 25B(5)); that is, by pointing to a mainstream, State, or other non-NDIS service as the place the person should obtain suppo The Minister need only be satisfied that it is “not appropriate to fund or provide a support for the impairment through the National Disability Insurance Scheme” (s 25B(6)). Once the impairment is excluded, the person fails the access test and the CEO may revoke their participant status.
Read together, the Minister can reduce the funding a cohort relies on to a fraction of its cost, and route their impairment to an “alternative support” delivered outside the NDIS, without having to fund that alternative or show that it exists. The instruments are disallowable within 15 sitting days but, because sunsetting is disapplied, permanent if not disallowed; the cohort boundary is set by instrument and rule, not by Parliament. This describes a legal route the Bill permits, not a prediction of Ministerial intent; it is analysed against CRPD Article 5 and the Disability Discrimination Act 1992 in the Annex.
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71.8 per cent of primary carers as women); CRC Article 3(1) (best interests a primary consideration) and Article 23; and CRPD Article 7 (children with disability as rights holders).
5: Further amendments the Committee should consider
Beyond the nine drafted recommendations, two further amendments close gaps the Bill leaves open. MAGNA can provide drafted amendment text on request.
Cross portfolio cost shift reporting. The Bill creates the legal route for cost transfers to State delivery, Commonwealth income support, Medicare allied health, State education, and aged care (Finding 4) but n mechanism to measure them. The Committee should insert a duty on the CEO to publish, annually and i consultation with the Australian Institute of Health and Welfare, cross portfolio expenditure data on forme NDIS participants (health, education, housing, justice, child protection). This is the evidence base for honest fiscal accounting under the Charter of Budget Honesty Act 1998.
Restore and strengthen merits review. The Bill repeals the s 48(4) deemed decision protection for unscheduled reassessments (Schedule 1 Part 2), declares plan renewal under s 50A not to involve a reviewable decision (s 50A(4)(b)), and provides no statutory review channel for s 45C pricing determinations or for SOPIs. The Committee should insert statutory Administrative Review Tribunal revie for s 50A renewal and for CEO revocations of new framework planning notices under s 32B(4), restore th s 48(4) protection, and require plain language reasons for decisions affecting participants.
A statutory co design duty (a duty to consult people with disability, their families, and carers and to table “what we heard and what we changed” report with the relevant instrument) and whistleblower protection extending to participants, families, and providers (cf. the Public Interest Disclosure Act 2013) would further strengthen the Bill; MAGNA can provide drafted text on request.
6: Conclusion
We support the policy objective of long term sustainability for the Scheme; we do not support the architecture the Bill uses to reach it. The Bill engages four bodies of authority at once: it puts four constitutional doctrines on the table and leans on the s 75(v) floor, engages binding treaty and Royal Commission regimes, lawfully modifies sixteen peer Commonwealth statutes, and departs from six bodie of institutional norm and one displaced common law presumption. Each departure is lawful; the cumulati pattern, in a six week passage window with one month for Senate Committee scrutiny, is the institutional finding. The nine recommended amendments address each identified mechanism, fit inside the Bill’s existing architecture, and can each be accepted independently, restoring the Bill to the scrutiny practice the Commonwealth has previously committed to without disturbing the policy objective. We offer to provide further evidence on any of the recommendations, and the supporting legal analysis is at the Annex. The submitter is available for a public hearing.
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Annex: Higher order frameworks the Bill engages
This Annex identifies the bodies of authority the Bill engages and the strength of each. Only one body of law sits above the Commonwealth Parliament collectively, the Constitution; everything else operates at one of three lower layers. The Committee is asked to exercise the institutional and political judgement th Constitution leaves to Parliament, not to enforce a supremacy that does not exist.
Figure 1: The four bodies of authority the Bill engages, strongest at the top (named authorities listed below)
LAYER 1 Constitutional doctrine The only law above Parliament
LAYER 2 Treaty and Royal Commission
Binding in international and political terms
LAYER 3 Peer Commonwealth statutes Lawful to modify; sixteen at once is the finding
LAYER 4 Institutional and common law norms No legal force above Parliament
Layer 1: Constitutional doctrine
These constitutional conflicts cannot be cured by Parliament’s own legislative choice. The Bill engages four contestable doctrines and one floor that cannot be ousted:
Separation of powers and non abdication (contestable); Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; engaged by the s 59B(4) extension of the Carltona principle to computer programs and the Schedule 5 Henry VIII power.
s 51(xxiiiA) social welfare power (contestable); British Medical Association v Commonwealth (1949 79 CLR 201; engaged by the s 25B(4) alternative supports declaration and the Schedule 2 provider obligations.
s 51(xxxi) acquisition on just terms (highly contestable); JT International SA v Commonwealth (2012) 250 CLR 1; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; Commonwealth v Tasmania (1983) 158 CLR 1; Health Insurance Commission v Peverill (1994) 179 CLR 226; engaged by the s 50A(2)(b) one off strip and the s 34A reduction across in force plans.
s 75(v) constitutional floor (direct); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; the statutory review exclusions in s 50A(4)(b) and s 59E(3) and (5) cannot, and constitutionally do not, oust the High Court’s entrenched jurisdiction.
Layer 2: Treaty and Royal Commission
Treaties bind Australia in international law but are not automatically domestic law (Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273); the domestic compatibility vehicle is the
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Human Rights (Parliamentary Scrutiny) Act 2011. An accepted Royal Commission is a politically binding authority.
CRPD; Convention on the Rights of Persons with Disabilities (ratified 17 July 2008); Articles 7(3 12 (with UN CRPD Committee General Comment No. 1 (2014), supported over substitute decision making), and 19 (living independently); engaged by s 34(1G) to (1J), the s 59B(4) state of mind formation, and the s 25A(2) statutory irrelevance of financial and geographical circumstances; addressed by Recommendations 1, 3, 4, 7, and 9.
CRC; Convention on the Rights of the Child (ratified 17 December 1990); Articles 3(1) (best interests a primary consideration), 18(2) (assist parents), 23 (children with disability), and 26 (social security); engaged by s 34(1G) to (1J) and s 25A(2); addressed by Recommendations 3, 4, and 9.
ICESCR; International Covenant on Economic, Social and Cultural Rights (in force for Australia 10 March 1976); Article 2(1) (with General Comment No. 3 (1990), retrogressive measures requiring the most careful consideration and full justification), Article 9 (General Comment No. 19 (2007), a “strong presumption of impermissibility” for retrogressive measures), and Article 12 (health); engage by s 34A, s 25A, s 25B(4), and the s 45C pricing power; addressed by Recommendations 4, 5, 7, an 8.
CEDAW; Convention on the Elimination of All Forms of Discrimination against Women (ratified 28 July 1983); Article 5(a); the Australian Bureau of Statistics 2018 Survey of Disability, Ageing and Carers recorded 71.8 per cent of primary carers as women, so the sex neutral s 34(1G) to (1J) presumption is sex disparate in effect, engaging indirect discrimination under the Sex Discrimination Act 1984 s 7B and s 7C; addressed by Recommendations 4 and 9.
Robodebt Royal Commission; Royal Commission into the Robodebt Scheme, Final Report 7 July
2023; Australian Government Response 13 November 2023 (57 recommendations; all 56 public recommendations accepted or accepted in principle); Recommendations 17.1 (consistent legislative framework for automated decision making), 17.2 (a body to monitor and audit), and 17.3 (business rules available for independent scrutiny); engaged by s 59B(4), the s 59D(6) notifiable classification, and s 59E(3) and (5); addressed by Recommendations 1 and 2.
Layer 3: Peer Commonwealth statute departures
Parliament can lawfully amend any peer statute; the cumulative effect of departing from sixteen at once, a six week passage window, is institutionally significant.
# Bill provision Peer Commonwealth statute Nature of departure
1 s 33(2G)(2H); s 45C(11) to (13); Legislation Act 2003 Sub delegation to non legislatives 34A; s 34B; s 45C; s 50A(3) writings; sunsetting disapplied for six and (7); s 73ZSL; Sch 5 determinations; Henry VIII Schedule 5
2 repeal of s 48(4); s 50A(4)(b); s Administrative Decisions (Judicial Removal of deemed decision
59E(3) and (5) Review) Act 1977 protection; exclusion of plan renewalreview; neutralisation of safeguard non compliance
3 Bill commencement architecture Public Accounts and Audit Bill commences before JCPAA canCommittee Act 1951 meaningfully scrutinise fiscal effect
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# Bill provision Peer Commonwealth statute Nature of departure
4 s 59D(6) notifiable classification Auditor-General Act 1997 and Notifiable instruments less consistentlyANAO performance audit history captured in ANAO performance audit scope
5 s 59B(4) automation Public Governance, Performance CEO accountability tension underand Accountability Act 2013 (s 15, proper use of resources and good faith s 25) duties
6 Cross portfolio fiscal effect not Charter of Budget Honesty Act Disclosure adequacy of cross portfolio
disclosed in Budget paper 1998 transfers
7 Express overrides of default sub Acts Interpretation Act 1901 Bill operates outside default subdelegation constraints delegation constraints
8 s 25B(4) without state readiness Federal Financial Relations Act Commonwealth side machinery without
coordination 2009 engaging the standard fiscalcoordination instrument
9 s 34(1G) to (1J) Carer Recognition Act 2010 Redistributes care obligations to carers(Statement for Australia’s Carers) against the direction the Statement sets
10 s 34(1G) to (1J) Sex Discrimination Act 1984 (s 7B, Sex neutral provision with sex disparates 7C indirect discrimination) operational effect
11 s 59B(4); s 59E(3) and (5); s National Anti-Corruption Forward looking institutional risk:
59D(6) Commission Act 2022 automated decisions affectingvulnerable cohorts under opaque operational rules
12 Bill silent on extending PID Public Interest Disclosure Act 2013 Whistleblower coverage gap for theprotections populations most likely to observe implementation failures
13 s 25B(4); s 25A; s 34(1G) to (1J) Social Security Act 1991 Cost shift to Disability Support Pensionand Carer Payment
14 NDIS funded allied health and Health Insurance Act 1973 and Cost shift to Medicare and PBSpharmaceutical adjacent National Health Act 1953 supports reduced
15 s 25A permanence tightening Aged Care Act 2024 Cost shift to aged care system at thebefore age 65 age 65 redirect
16 s 34(1G) to (1J) school day Disability Standards for Education Cost shift to State and Territory
supervision load 2005 (under DDA s 31) and education budgets and CommonwealthAustralian Education Act 2013 education grants
Layer 4: Institutional norms and common law presumptions
These norms have no legal force above Parliament; they are the practice the Commonwealth has built around its own legislative process.
OPC Drafting Directions; Direction No. 3.8 (subordinate legislation and Henry VIII clauses); engaged at the s 33(2G) and (2H) and s 45C(11) to (13) sub delegation to non legislative writings, th s 59D(6) notifiable classification, and the Schedule 5 transitional architecture.
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PM&C Legislation Handbook and Cabinet Handbook; pre introduction consultation requirements and the Statement of Compatibility framework; the Bill was introduced 14 May 2026 targeting passag by 30 June 2026, a six week window for legislation affecting 761,442 participants (NDIA Quarterly Report Q2 2025-26) and their families; whether consultation requirements were met is a matter the Department should disclose at Senate Estimates.
Senate Standing Order 24 scrutiny principles; the Bill engages at least four of the five principles (repeal of s 48(4); s 50A(4)(b); s 59E(3) and (5); s 25B(4); s 34(1J); s 59B(4); s 33(2G) and (2H); s 45C(11) to (13); Schedule 5; the s 59D(6) classification).
Office of Impact Analysis Guide to Impact Analysis; whether the Impact Analysis for this Bill addresses participant, provider, cross portfolio fiscal, and litigation impact is a factual matter the Department should disclose.
APS Code of Conduct; Public Service Act 1999 ss 10 and 13, strengthened in 2024 (introduced
- after Robodebt; the s 59B(4) automation paired with the s 59E(3) and (5) non invalidation carv out sits in tension with the integrity, accountability, and stewardship framework the APS officials operating the Bill are bound by.
Common law procedural fairness; a default rule of statutory interpretation displaced only by clear words (Kioa v West (1985) 159 CLR 550; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476); the Bill uses clear words in s 50A(4) (b) and s 59E(3) and (5); striking those restores the default position without further structural reconstruction.
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