What a support determination actually is

Section 34A opens by naming its own purpose. The minister may act For the purposes of ensuring the financial sustainability of the National Disability Insurance Scheme, and what the minister makes is a legislative instrument setting two things: a percentage, and the class of plans it applies to. That class can be all old framework plans that commence on or after the day the determination commences, or a narrower class specified in the determination.

Two features are worth having straight. The determination does not touch the words of anyone's plan: subsection (4) says it does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies. The plan still says what it said. The amount it is taken to mean is lower. And the instrument does not expire on the usual timetable, because the Act disapplies the sunsetting rules in Part 4 of Chapter 3 of the Legislation Act 2003.

Subsection (5) is the bluntest sentence in the Part, and it is there To avoid doubt. A determination has effect even if the result is that the funding provided under a participant’s plan for a reasonable and necessary support is less than the total cost of the support. The Act contemplates, on its face, funding a reasonable and necessary support below what it costs.

The first assurance is real, and it is in binding text

The sector's clearest win is subsection (1A). A group of supports named in a determination must be supports for one of the following, and the list is closed: assistance with social, economic and community participation and improved daily living skills. Nothing else can be reduced this way. Assistance with daily living, home and living, transport, consumables and assistive technology are all outside the power.

That matches what the Senate Community Affairs committee recorded at paragraph 2.85, that support determinations will only apply to funding for SCCP and/or capacity building daily activities. On this one, the assurance and the statute say the same thing, and the statute is what binds.

The second assurance is a note attached to a discretion

Here the wording changes, and the change is the story. Subsection (1C) says the determination may specify a subgroup within a specified group of supports as an excluded subgroup. Not must. May. Immediately underneath sits a note: Excluded subgroups will include supports in employment and disability related health supports.

Set that against what the sector was told. The committee wrote at 2.84 that The government has signalled its intent to exclude employment and disability related health supports from a reduction, and to ensure that 24/7 supports remain in place for participants who need them. The Department put it in the present tense at 2.42: The excluded subgroups from that support determination will be supports for employment and disability related health supports.

So the intent is on the record three times over, including inside the Act. What is not in the Act is an obligation. The operative verb is may, and the only thing subsection (2B) requires is that if a determination specifies an excluded subgroup, it must also specify how to work out the portion of funding attributable to it. Whether any subgroup is excluded at all is left to the instrument.

The third assurance is not a shield. It is a request form

This is the one most likely to be misread, so it is worth setting out carefully. The phrase 24/7 does not appear anywhere in the Act. What exists instead is a new section 47B, and it works differently from a protection.

If a determination reduces a plan's total funding and the participant is a high support needs participant, that person may ask the chief executive to vary the plan. They have 90 days to ask unless the chief executive extends it for exceptional circumstances. The chief executive then has 21 days to decide whether the person is a high support needs participant, or to say more time is needed, and a further 21 days to decide whether to vary.

Two limits sit inside that right. First, the class is not defined in the Act. A note says that Broadly, high support needs participants are those who require continuous 24-hour care arising from the impairments that got them into the Scheme, but subsection (2) makes the actual class whatever the minister specifies in a further determination under paragraph (12)(a).

Second, and this is the part that surprised us: a variation under subsection (8) can only increase funding for assistance with daily living, home and living, or a group the minister later adds. Subsection (9) expressly excludes the two groups the determination is allowed to cut. So the remedy for a reduction in community participation funding is not the restoration of that funding. It is a capped top-up, at the chief executive's discretion, in a different budget.

The safeguards that are real

It would be wrong to read the Part as unguarded, and three protections deserve naming. Subsection 34A(3) requires that In making the determination, the Minister must have regard to the safety of participants. That is close to what Senator David Pocock's dissent asked for, though it bites when the instrument is made rather than when an individual plan is reduced.

Second, the new decisions are reviewable. The Act adds three items to the table in subsection 99(1): whether a participant is a high support needs participant, a decision to vary, and a decision not to vary. A chief executive who lets the clock run out is taken to have decided not to vary, and the Act notes that such a decision is automatically reviewed because of subsection 100(5).

Third, participants must be told. An amended section 38 requires that when the chief executive gives someone a copy of their plan, they must notify the participant of the effect of the determination where a section 34A determination has affected it.

Nothing can happen yet, and that is the part to watch

Section 34A does not exist until 1 October 2026, so no determination has been made under it, and none can be. The same is true of the determination that would define who counts as a high support needs participant. Both are legislative instruments, which means both will appear on the Federal Register of Legislation and both will be disallowable by either House. The most recent NDIS instrument on the Register when we checked was made on 30 June 2026.

What that means practically is that the three assurances above cannot be tested yet. The binding one is already banked. The other two depend on documents that have not been drafted in public, and the first anyone will see of them is likely to be their registration.

What the sector said while this was still a bill

The organisations that accepted the bill would pass made the same point the drafting bears out. National Disability Services told the committee that The bill relies on broad ministerial powers and future support determinations to shape what supports can and cannot be funded, and that while the government had given important assurances, we remain concerned that foreseeable unintended consequences could arise unless parliament also legislates the practical safeguards needed to implement them safely.

The Down Syndrome Australia Consortium put it more sharply: we do not support broad ministerial powers that reduce or cap funding at levels below what has been deemed reasonable and necessary. Vision Australia told a public hearing that a support determination is a financial control measure that lacks procedural fairness, and it will expose many participants to the risks of isolation and psychological harm. The committee's own conclusion at 2.86 was that the amendments strikes the right balance.

Our view

Labelled as opinion, and built on the text quoted above. The gap that matters is not between what the government promised and what it intends; we have no reason to doubt the intent, and it is written into the Act as a note. The gap is between an assurance and an obligation, and it is the kind of gap that only shows up under a later minister, a later budget, or a later instrument. Parliament had the option of writing must in subsection (1C) and wrote may. It had the option of putting the employment and health carve-out in the operative text and put it in a note instead. Both choices are defensible as drafting practice, because rules need room to move. Both also mean the protection a participant actually has is thinner than the assurance they were given, and nobody reading the committee's language about the right balance would work that out.

The 47B remedy is the part we would push hardest on. A person whose community participation budget is cut, who then proves they need continuous care, cannot get that budget back. They can ask for more daily living funding instead, capped at the size of the cut, at the chief executive's discretion. That may be sound scheme design. It is not what 24/7 supports remain in place sounds like.

What this does not tell you

We have read the Act as made and the committee's report. We have not read the instruments, because they do not exist. We cannot tell you what percentage any determination will set, which subgroups it will exclude, or how the high support needs class will be drawn, and anyone who tells you otherwise is guessing. Nothing here is advice about an individual plan. We have not sought comment from the Department, the Agency or the minister, and this is a reading of published documents rather than an account of how the power will be used.