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.

Executive summary

MAGNA Performance & Risk Consulting is an Australian consultancy providing structural and operational 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

Submission 432

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.

Recommendations

MAGNA Performance & Risk Consulting; Submission to the Senate Standing Committee on Community Affairs Page 2 of 14

Recommendation and effect

Findings and fiscal context

Finding 1: The Bill is an architecture, and its central choices cannot be sized when the

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 support 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.

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 “state 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 suppoThe 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).

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.

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 eexisting 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.

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) 94CLR 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) 211CLR 476; the statutory review exclusions ins 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 statue; 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 legislative s 34A; s 34B; s 45C; s 50A(3) writings; sunsetting disapplied for six 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 renewal review; neutralisation of safeguard non compliance

3 Bill commencement architecture Public Accounts and Audit Bill commences before JCPAA can meaningfully scrutinise fiscal effect

Bill provision Peer Commonwealth statute Nature of departure

4 s 59D(6) notifiable classification Auditor-General Act 1997 and Notifiable instruments less consistently captured in ANAO performance audit scope

5 s 59B(4) automation Public Governance, Performance CEO accountability tension under and Accountability Act 2013 (s 15, s 25) proper use of resources and good faith 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 sub delegation constraints

8 s 25B(4) without state readiness Federal Financial Relations Act Commonwealth side machinery without engaging the standard fiscal coordination instrument 2009

9 s 34(1G) to (1J) Carer Recognition Act 2010 Redistributes care obligations to carers against the direction the Statement sets (Statement for Australia’s Carers)

10 s 34(1G) to (1J) Sex Discrimination Act 1984 (s 7B, Sex neutral provision with sex disparate operational effect s 7C indirect discrimination)

11 s 59B(4); s 59E(3) and (5); s National Anti-Corruption Forward looking institutional risk: automated decisions affecting vulnerable cohorts under opaque operational rules 59D(6) Commission Act 2022

12 Bill silent on extending PID Public Interest Disclosure Act 2013 Whistleblower coverage gap for the populations most likely to observe implementation failures protections

13 s 25B(4); s 25A; s 34(1G) to (1J) Social Security Act 1991 Cost shift to Disability Support Pension and Carer Payment

14 NDIS funded allied health and Health Insurance Act 1973 and Cost shift to Medicare and PBS pharmaceutical adjacent National Health Act 1953 supports reduced

15 s 25A permanence tightening Aged Care Act 2024 Cost shift to aged care system at the age 65 redirect before age 65

16 s 34(1G) to (1J) school day Disability Standards for Education Cost shift to State and Territory education budgets and Commonwealth education grants supervision load 2005 (under DDA s 31) and
Australian Education Act 2013

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 2023) 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) 175CLR 564; Plaintiff S157/2002 v Commonwealth (2003) 211CLR 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.