1. The NDIA also has a process known as "manual payment review", which involves an assessment being made about a provider or a participant rather than an individual claim. This step can be taken if the NDIA has "concerns about the integrity of the claims or the claimants". Such concerns can arise from tip-offs from members of the public, referrals from other government agencies or the NDIA's "intelligence and analytics functions". Mr Winton [NDIA Branch Manager] described the consequences of a provider being placed on manual payment review, in its application to an individual claim as follows:

A manual payment review means that an officer of the Agency will manually review and assess the claim to determine whether or not it should be paid. One step that will be undertaken during a manual payment review is that the officer reviewing that claim decides to seek more information from the claimant, in order to substantiate the claim. That could be, for example, by the seeking of records about the support provided and the circumstances in which it was provided. The officer will then assess all the available material to determine whether each individual claim should be paid or not. > > If a provider can substantiate that their claim is payable, it will be paid. If not, it will not be paid (which is done by a 'cancellation' of the claim, which means it was rejected). In this way, manual payment reviews operate to safeguard participants and their plans, while also educating and leading to corrections in non-compliant claiming behaviour. Also, if a payment claim is "cancelled" or rejected, it remains open for the claimant to re-lodge the payment claim at a later time, with additional material to support the claim. That fresh claim would be then processed in the ordinary fashion.

18. If a provider is subject to manual payment review, all of its payment claims are allocated to a case worker in what is referred to as the "Review Team". A "Request for Information" Letter (RFI) is sent to the provider with a list of the claims that are under review and a request for information about them (including for copies of documents such as invoices and support notes). The claims canvassed in a RFI letter are allocated an identifier that begins with "RTP" for the purposes of identifying them. The information supplied in response to an RFI letter is considered and there may be a request for further information. Mr Winton also deposed that, if the case worker is minded to reject a claim or a group of claims, an invitation to comment is sent to the provider setting out the officer's concerns and the provider's response is considered before a decision is made as to whether the claim or claims should be paid....
19. The CEO submits that since the manual payment review was instituted on 21 October 2025, at the date of the hearing, the Applicant, or others on his behalf, have submitted claims totalling $116,645.12 to the Agency for payment of supports said to have been provided to the Applicant. Of that amount, claims totalling $14,645.12 have been substantiated and paid out, claims totalling $41,466.57 have been finalised where the ultimate result was that funding was not paid out, and claims totalling $60,454.20 are still subject to assessment. In respect of those claims that were not paid, some have been withdrawn by the provider claimant, some claims could not be substantiated on the evidence available, and the remainder were rejected because they did not relate to something that could be funded under the Applicant's plan.
20. The Applicant contends that the manual payment review has resulted in major delays in his support providers being paid, in them refusing to provide further support due to non-payment for services provided, and in serious difficulties in securing alternative providers because of the risk of delayed or non-payment of services. He apprehends that these difficulties would be overcome if his plan management arrangements reverted to Plan rather than Agency managed.
21. The CEO submits that the manual payment review is unrelated to the plan management arrangements and would continue irrespective of what plan management arrangement is in place. That is because it is a process instituted pursuant to s 45 of the NDIS Act which involves the CEO deciding the amounts that payable under the NDIS in respect of a participant's plan, including but not limited to deciding whether such amounts are to be paid,[8] and such decisions are not designated reviewable decisions. That is, the Tribunal has no power to make any order affecting the manual payment review process or its outcomes.
22. On 30 November 2025, in the immediate aftermath of the CEO's decision of 26 November 2025, the Applicant self-presented to the Emergency Department of his local public hospital citing a crisis arising from the reduction of funding for his NDIS supports. He was admitted and underwent occupational therapy and physiotherapy assessments prior to his discharge on or about 18 December 2025.
23. The Applicant is critical of the scope of the assessments undertaken while he was in hospital. But for present purposes it is necessary to note the following outcome of these assessments which is contained in a letter to the Applicant from the health service's Executive General Manager, dated 16 December 2025:

Based on this assessment, [the health service] considers that you require an increase to 8 hours of 1:1 support (total of 14 hours 730am - 930pm, inactive overnight) which includes all of his personal care and community access hours (sic). If [the Applicant] requires ongoing floor hoist transfers, his care hours may need to be reviewed if two people are required. Without this support [the Applicant] is at high risk of urinary incontinence which will lead to skin breakdown with potential hospital admissions and other secondary complications as well as equipment failure. A hospital discharge assessment will be completed to reflect this recommendation and submitted to the NDIA through the hospital discharge pathway. > > To support a timely discharge, [the health service] has agreed to temporarily fund the gap in care while this change of circumstances is being considered by the NDIS. [The health service] will cover 8 hours per day until a new NDIS plan is approved. If the NDIS upholds the current plan and declines to increase supports no further funding will be provided by [the health service]. The NDIS may approve or decline supports based on its own legislative criteria and planning processes. Any difference between clinically assessed support needs and that the NDIS funds is not the responsibility of the health service. > > You have been deemed medically fit for discharge. Based on our assessment, you will have sufficient supports in place to ensure your care needs are met through a combination of NDIS-funded supports and temporary funding from [the health service]. > > Should you represent to [the health service] Emergency Department at any time your immediate clinical needs will be assessed and treated as indicated. If, upon assessment, it is not considered you require in-patient care - you will not be admitted to hospital and need to return to your current living and support arrangements. > > Please ensure that appropriate arrangements are made to reinstate the care required to support your discharge from hospital. > > Your planned discharge date is 18/12/2025.

• - The NDIA decision be stayed in full
• - My previous plan, funding levels, and payments be immediately reinstated
• - Providers and SDA payments be released without delay
• - No further reductions or suspensions occur until the review is finally determined.

1. The Applicant contends that the impugned decisions constitute an immediate risk to his safety and survival. He contends that he is unable to independently feed himself, drink water, reposition in bed, manage toileting, or protect himself from aspiration, pressure sores, urinary tract infections, and falls without "24/7" support for daily personal activities at a 2:1 ratio. He contends that the impugned decisions are medically unsafe, clinically negligent, and based on an incorrect understanding of his factual circumstances. He contends they have seriously disrupted his access to essential support and caused him severe physical suffering and psychological distress.
2. In relation to the Tribunal's power to 'stay' the impugned decisions, the Applicant submits, in effect, that ss 33(2) of the ART Act confers power on the Tribunal to order that his plan and SOPS return to the situation that pertained prior to 2 September 2025 under the plan and SOPS approved on 12 January 2025, pending the outcome of the substantive review. He submits that an order with this effect ought to be made because he has been imperilled by the impugned decisions, his case for the maintenance of plan management and funding for "24/7" supports has substantial merit, and he will suffer irreparable harm if an order of this kind is not granted. In these respects, he contends, in effect, that an order pursuant to ss 32(2) is necessary to secure the effectiveness of the review. He also submits that the impugned decisions should be negatived immediately because they constitute 'structural violence', a breach of the Agency's duty of care to him, and a breach of his human rights as these are recognised in the United Nations Convention on the Rights of Persons with Disabilities.
3. If I understand the Agency's submissions correctly, the CEO accepts, acknowledging the implication of DP Dordevic's recent decision in Lalor,[9] that the Tribunal has the power to stay the decisions of 2 September 2025, 25 November 2025 and 2 January 2026, such that they do not take effect with the result that the decision to approve the SOPS dated 12 February 2025 would continue according to its terms. However, it is submitted that the scope of power conferred by s 32(2) does not permit the Tribunal to order what amounts to the interim substantive relief sought by the Applicant beyond the temporal range of 12 February 2025 approved SOPS.
4. Additionally, the CEO submits that it is not enough for the Applicant to assert that the impugned decisions cause him hardship, it is necessary for him to establish that the order sought is necessary to secure the effectiveness of the review. In this respect, it is submitted that the Applicant has neither established hardship or that a ss 32(2) order is necessary to secure the effectiveness of the review. That is because in his current operative SOPS the Applicant has $48,781.00 available to him for supports monthly, which includes funding for eight hours daily of high intensity support at a 1:1 ratio and 1:1 inactive overnight support (10pm to 6am). He also has access to separate funding from Queensland Health for eight additional hours daily of assistance with daily personal activities at a 1:1 ratio. In other words, he has access to funding for support for daily personal activities, including personal care, 24 hours a day at a 1:1 ratio. It is further submitted that the funds currently available to the Applicant for daily personal activities monthly is broadly commensurate with his actual expenditure on supports under the participant plan and SOPS approved on 12 February 2025.
5. As to whether a 1:1 ratio of support is inadequate, the CEO submits that there is no evidence before the Tribunal that could reasonably lead to that conclusion. That is because the most recent assessments conducted by an occupational therapist and physiotherapist whilst the Applicant was hospitalised in November/December 2025 concluded that 1:1 support was sufficient to meet his needs.
6. In relation to the Applicant's complaints about the impact of the manual payment review on his ability to maintain his preferred support providers, as I have noted above, the CEO submits that an order pursuant to ss 32(2) could have no impact on that review process or its outcomes because it arises from the exercise of the CEO's functions pursuant to s 45 of the NDIS, which are not contingent upon any particular form of plan management, and which do not constitute reviewable decisions. On this basis it is submitted that a reversion to plan management would have no impact on the manual payment review to which the Applicant is currently subject.

1. To decide the outcome of this application the Tribunal must pose and answer the following questions:

(i) Does the Tribunal have the power to stay the impugned decisions?

(ii) Would there be any utility in doing so in the circumstances of this case?

(iii) Does ss 32(2) of the ART Act confer power on the Tribunal to order the interim substantive relief sought by the Applicant?

(iv) Is a ss 32(2) order desirable for the purpose of ensuring the effectiveness of the review in the circumstances of this case?

1. Sub-section 32(1) of the ART Act prescribes the "general rule" that the making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
2. However, ss 32(2) prescribes an "exception" to that general rule as follows:

Exception - Tribunal may stay operation or implementation > > (2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

3. The exercise of the discretionary power constituted by this exception operates subject to the preconditions specified in ss 32(7):

Preconditions to making, varying or revoking an order > > (7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:

(a) the Tribunal has given the parties to the proceeding for the review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

1. There are five elements of the power conferred by ss 32(2) that require attention.
2. First, the power is exercisable in relation to the underlying 'reviewable decision'; not the internal review decision that confers jurisdiction on the Tribunal to conduct an independent review of that decision.[10]
3. Second, it is exercisable on the application of a party to a proceeding. That is, it is a precondition to the exercise of the power that a party seeks to invoke the power.
4. Third, it requires the Tribunal to obtain a state of satisfaction or opinion that such an order is 'desirable'. In this context, the following observations of Latham CJ in R v Connell: Ex parte The Hetton Bellbird Collieries Limited[11] are salutary:

... where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.[12]

5. That opinion can only be formed, or state of satisfaction obtained, after the preconditions contained in ss 32(7) have been satisfied. This includes, in paragraph (a), providing the parties with a reasonable opportunity to make submissions in relation to the making of the order.[13]
6. The second and third elements, read with paragraph 32(7)(a), thus combine to repose a practical or evidentiary onus on an applicant for an order pursuant to ss 32(2) to place material before the Tribunal, or point to material that is already before it,[14] that is capable of persuading it, or which enables it to reasonably form the opinion, that such an order is desirable.[15]
7. Fourth, the exercise of the power is at the discretion of the Tribunal. A stay will not be granted as a matter of course.[16] The power conferred by ss 32(2) will only be exercised for a specific statutory purpose, which is where it is necessary to ensure the effectiveness of the review. In other words, it must be established that the review would be adversely affected because the party seeking the stay would suffer irreversible prejudice if the stay sought were not granted, such as where a successful outcome in the substantive review would be rendered nugatory.[17] The purpose of the power not to avoid inconvenience or mere hardship to the applicant party.[18]
8. Fifth, ss 32(2) contains two distinct powers which are not to be conflated. It contains a power to stay a decision; that is, in arcane language, a power to order the preservation of the status quo ante, or expressed in more colloquial terms, to put a temporary stop to the decision and leave things as they were before the original decision was made. This power might be conceptualised as 'negative' in character in that is prevents a decision taking effect for the purposes of securing the effectiveness of the review.
9. Additionally, it contains the power to make an order that otherwise affects the operation or implementation of the decision. Those italicised words are of broad import and are to be given a liberal interpretation having regard to the remedial purpose of the ART's administrative review jurisdiction.[19] Where it is necessary to ensure the effectiveness of the review, they empower the Tribunal to make a 'positive' order to preserve or reinstate a continuum which is broken by reviewable decision. In effect, this is to grant on an interim basis the substantive relief sought by the applicant in the review.[20] However, this power does not extend to the making of an order that would put a stay applicant in a better position to the one they were in prior to the reviewable decision.[21]
10. In this respect, perhaps closest by analogy to NDIS plan decisions are those cases where this power has been exercised to order the continued payment of an income support payment that has been cancelled by a reviewable decision until such time as the recipient's qualification for that payment is determined in the review.[22] In Re Repatriation Commission and Delkou, the Tribunal made the following observations in relation to such cases (references omitted):

... On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship. Notwithstanding the possibility that, if the application for review is unsuccessful, benefits may be paid in the meantime to which the applicant was not entitled and which may be irrecoverable, the Tribunal has recognised that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing.[23]

ss 32(2) of the ART Act and the NDIS legislative scheme

1. Ascertainment of what is necessary to secure the effectiveness of the review requires careful consideration of the statutory scheme under which the reviewable decision is made.[24] This is because the statutory scheme is likely to be critical to a proper understanding of both the practical consequences of the reviewable decision, and the relevance of the public interest to that decision, and to the exercise of the stay discretion.[25]
2. The NDIS Act is a unique legislative scheme. It embeds an approach to the support of persons with disability which was previously non-existent.[26] It is a law giving effect to an emphatic values-driven[27] social insurance scheme in which the potential cost of disability is borne by the community overall, rather than by an individual as an incident of their own fate.[28] Relevantly, it is a law that provides for public financial assistance to be given to persons with significant and permanent disability to enable them to procure supports that are reasonable and necessary for their subsistence and social participation.[29]
3. The NDIS Act interacts with the ART Act in some exceptional ways. For present purposes it is necessary to observe the operation of ss 103(2) of the NDIS Act which, as already noted, deems an application for review to also be an application for review of plan decisions made after the reviewable decision that was generative of the application while the proceeding remains on foot. In doing so it negatives ss 31(1) of the ART Act which would otherwise prevent the alteration of a decision under review by the primary decision-maker while the application for review is before the Tribunal. As in this case, it means that the Tribunal may have more than one reviewable decision before it for review. The unique operation of ss 103(2) is necessitated by the linear, prospective[30] and recurring participant planning scheme established by Part 2 of Chapter 3 of the NDIS Act the operation of which is not suspended by an application for review of a plan-related decision.
4. The reviewable decisions that are before the Tribunal are decisions to vary and then approve two successive SOPS for the Applicant, being Items 6 and 4 respectively in the Table to ss 99(1) of the NDIS Act.
5. The Tribunal's jurisdiction in reviewing a decision to approve a SOPS was the subject of authoritative analysis by the Full Court in QDKH,[31] by reference to the High Court's analysis of the former AAT's jurisdiction in Frugtniet.[32] The relevant passage of the Full Court's decision is set out following:

(a) The Tribunal's jurisdiction is governed by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO's or delegate's decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act s 99(1), (Item 4))

(b) The Tribunal's role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act: Frugtniet .... The scope of the Tribunal's jurisdiction is, therefore, determined by reference to the scope of the internal reviewer's powers under s 100 of the NDIS Act, which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.

1. Sub-section 33(2) specifies the requirements for a SOPS as follows:

Statement of participant supports > > (2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

(a) the general supports (if any) that will be provided to, or in relation to, the participant; and

(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

(c) the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and

(d) the management of the funding for supports under the plan (see also Division 3); and

(e) the management of other aspects of the plan.

1. Sub-section 33(5) of the NDIS Act sets out certain mandatory considerations to which the CEO must have regard in approving a SOPS under ss 33(2):

Requirements for CEO in approving statement of participant supports > > (5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to the relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of s 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant; and

(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Section 37 of the NDIS Act prescribes when a participant plan is in effect. Relevantly, it provides:

37 When plan is in effect > > (1) A participant plan comes into effect when the CEO has:

(a) received the participant's statement of goals and aspirations from the participant; and

(b) approved the statement of participant supports.

(3) A participant's plan ceases to be in effect at the earliest of the following times:

(a) when the plan is replaced by another plan (see subsection (4));

...

(4) For the purposes of paragraph 3(a), if a plan (the replacement plan) comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.

Does the Tribunal have jurisdiction to stay the impugned decisions?

1. As I have explained above, the Tribunal has three reviewable decisions before it which relate to participant plans, containing SOPS, that were approved on 12 February 2025 (later varied on 2 September 2025), 26 November 2025, and 2 January 2026. The 2 January 2026 plan contains the current operative SOPS. By operation of s 37 of the NDIS Act that plan and SOPS replaces the plan and SOPS approved on 26 November 2025 which replaced the plan approved on 12 February 2025 (as varied on 2 September 2025).
2. The Applicant asks the Tribunal, in effect, to prevent the plans and SOPS approved on 26 November 2025 and 2 January 2026 from coming into effect with the result that the plan and SOPS approved on 12 February 2025 continues. He also asks the Tribunal to stay the plan management variation decision made in the context of that plan on 2 September 2025 so that funding available to him under that plan remains plan managed rather than agency managed. This involves two reverse vaults and a twist.
3. I note that the Applicant's application for a stay of the 2 September 2025 variation decision was made in a timely manner after the outcome of the internal review of that decision was communicated to him on 3 October 2025, and that his requests for stays of the 26 November 2025 and 2 January 2026 decisions have been made in the context of these proceedings in response to those decisions being communicated to him. No issue of delay arises for consideration in these circumstances.
4. Until recently, the accepted position had been that the Tribunal had no power to 'revive' a participant plan that had been 'replaced' by a subsequent plan by operation of s 37 of the NDIS Act.[33] However, in Lalor, Deputy President Dordevic departed from that orthodoxy. I respectfully agree with the Deputy President's conclusions.[34] A subsequent participant plan and SOPS can only come into effect in the circumstance prescribed in paragraph 37(1)(b); that is, when the CEO has approved the 'new' SOPS. If the Tribunal stays the operation of that approval, the 'new' or 'replacement' plan cannot come into effect and the then subsisting plan continues in force.
5. I therefore conclude that the Tribunal has the power in this case to stay the SOPS approval decisions made on 26 November 2025 and 2 January 2025 with the consequence that the plan and SOPS approved on 12 February 2025 is 'revived' and continues in force according to its terms. In the context of that revived plan the Tribunal would also have the power to stay the operation of the variation decision made on 2 September 2025 such that the 12 February 2025 SOPS would continue to be plan, not Agency, managed.

Would there be any utility in staying the impugned decisions in the circumstances of this case?

1. The utility of these stays, as distinct from an order 'otherwise affecting the operation or implementation of these decisions' is to be considered according to the terms of the SOPS that is revived. While, by operation of s 37 of the NDIS Act, a plan and SOPS will, relevantly, continue in effect until it is replaced, this does not necessary mean that it will have any active content. That is because the SOPS contains the approval of funding for supports in the form of a budget for a specific period, typically from the date of the approval until the reassessment date required to be specified in the plan by paragraph 33(2)(c) of the NDIS Act.
2. Consequently, if the impugned SOPS approval occurs at the end of the budget period of the previous plan as the result of a scheduled reassessment process,[35] or after the early depletion of the budget where the plan has had to be reassessed on an unscheduled basis,[36] there may be no active content of the SOPS that is capable of being revived by a stay. The approved supports would remain standing in the earlier plan, but they would not have any approved funding amount standing against them in respect of a future period. A stay (alone) may therefore operate to deprive the participant of the funded supports available under the replacement plan without reviving any benefit still available under the SOPS that was replaced.
3. That is not the case here, however. At the time the 26 November 2025 and 2 January SOPS were approved, the SOPS approved on 12 February 2025 still had until 11 February 2026 to run, and approved funding of $743,063.00 remained available to the Applicant for supports approved in that SOPS. If that SOPS were to be revived by operation of stays imposed on the decisions of 26 November 2025 and 2 January 2026 the Applicant would continue to have funded supports approved under the 12 February 2025 plan available to him until 11 February 2026. By operation of s 39 of the NDIS Act the Agency would be compelled by comply with this SOPS as revived by funding those supports.
4. However, the hearing of this application took place on 28 January 2026, when the plan approved on 12 February 2025, if revived, would have had 14 days to run until its reassessment date and budget end date.
5. The Applicant contends that, even so, stays of the impugned decisions would still be of utility because it would enable him to pay for supports that he received from various providers that have become caught up in the manual payment review process instigated by the Agency on 21 October 2025. That is because he believes these payment delays and refusals result from the change to Agency management of his supports.
6. But he is mistaken about that. I accept the Agency's submission that this process has been instituted pursuant to the Agency's functions under s 45 of the NDIS Act to determine if these claims are 'amounts payable' in respect of the Applicant's participant plan, being "NDIS amounts",[37] having regard to the obligations imposed on him by s 46 of that Act (being the requirement to spend approved funding only on NDIS supports and in accordance with his participant plan). The form of plan management specified in the plan would make no difference to the Agency's consideration of these payment claims. Nor does this Tribunal have jurisdiction to review Agency payment decisions made pursuant to s 45. It can thus make no order, interim or otherwise, affecting these decisions.

Does ss 32(2) of the ART Act confer power on the Tribunal to order the interim substantive relief sought by the Applicant?

1. I now turn to the question of whether the words 'otherwise affecting the operation or implementation of the decision' can permit the Tribunal to order that the "24/7" 2:1 high intensity support for daily personal activities that was funded in the SOPS approved on 12 February 2025 continue beyond the temporal period of that SOPS to the date of the Tribunal's decision in the substantive review. This is, in effect, to grant interim substantive relief pending the outcome of the review. It obviously amounts to much more than putting a temporary stop on the operation and implementation of the replacement plans. It involves the positive act of extending the Applicant's entitlement to the support in issue past its reassessment date and the approved budget period for that support pending the outcome of the substantive review.
2. The starting point is to consider the power conferred by ss 32(2) of the ART Act in the context of a review of a decision to approve a SOPS under s 33(2) of the NDIS Act.
3. It is the objective of the Tribunal to provide an independent mechanism for review that, amongst other things, improves the transparency and quality of government decision making: ss 9(d) of the ART Act. In this respect the ART is reposed with a remedial function. It is established to protect the public from administrative error and malfeasance in government decision-making. The scope of power conferred by ss 32(2) of the ART Act is to be ascertained by reference to this remedial purpose. The subsection is to be interpreted as liberally as its words permit.
4. Turning to the NDIS Act I consider the following facts material to the analysis:

(i) the applicant is a participant in the NDIS. He therefore has an ongoing statutory entitlement to a participant plan: s 32 of the NDIS Act,

(ii) his participant plan must include a SOPS that specifies, among other things, the reasonable and necessary supports (if any) that will be funded under the NDIS: paragraph 33(2)(b) of the NDIS Act,

(iii) sub-section 34(1) of the NDIS Act prescribes the mandatory criteria of which the CEO must be satisfied in relation to, relevantly, the funding of a support as a reasonable and necessary support,

(iv) on 12 February 2025 the delegate of the CEO was satisfied that 24/7 2:1 high intensity support for daily personal activities was a reasonable and necessary support that was approved for inclusion in the Applicant's SOPS,

(v) a participant's needs for reasonable and necessary supports are periodically reassessed on a 'scheduled' basis or on an 'unscheduled' basis if there is an intervening change of circumstances that necessitates. Supports may be added and removed, reduced and increased, because of such reassessments. The participant plan reassessment and SOPS approval process is dynamic, linear and prospective in this respect,

(vi) at the time they approve a SOPS, by operation of paragraph 33(2)(c) of the NDIS Act, the CEO determines the funding period for a SOPS. On independent review that matter is also in the hands of the Tribunal,

(vii) additionally, pursuant to s 108(4) and (5) of the ART Act, if the Tribunal decides to vary or set aside and substitute a decision for the reviewable decision, the varied or substituted decision takes effect from the time at which the reviewable decision has or had effect, unless it orders otherwise. Typically, the Tribunal would 'order otherwise' as disputed supports can usually only be provided in the future, rather than in the past, but there is nevertheless the power to determine that a reasonable and necessary support is to be funded from the date of the original reviewable decision (that is, in the past). That is relevant in circumstances where the participant has incurred actual costs in respect of the disputed support prior to the Tribunal's decision on review,

(viii) a participant has a right to apply for internal review of a SOPS approval decision, and subject to the outcome of that internal review, for independent review by the Tribunal.

1. Having regard to the above, I am satisfied that the words 'otherwise affecting the operation or implementation of the decision' do provide the Tribunal with power to make an interim positive order that would require the CEO to continue to provide a previously approved support, subsequently withdrawn or reduced by a reviewable decision, until such time as the dispute about the withdrawal or reduction of that support is resolved, in the sense of being quelled, by the outcome of the substantive review.
2. There is no doubt that the Tribunal is invested with the power to provide this relief on a substantive basis; that is, to reinstate the support to the Applicant's SOPS on the basis that it is found to be reasonable and necessary. It can do so in respect of a past period back to the date of the original decision and it can do so in respect of a future period.
3. The Tribunal's power to do so on an interim basis pursuant to ss 32(2) pending the outcome of the substantive review is analogous to the exercise of that power to order the continuation of an income support payment until a dispute about its cancellation is quelled by the outcome of the substantive review. It reinstates or preserves a continuum which is broken by the reviewable decision. The power has particular significance in the context of government decisions concerning subsistence supports provided to vulnerable people.
4. However, the existence of the power, and its exercise in a particular case, are distinct considerations. The exercise of the power is governed by the purpose of ss 32(2). That is, the exercise of the power turns on whether it is desirable to do so for the purpose of securing the effectiveness of the review.

Interests of persons affected by the review of the decision

1. As noted above, the exercise of the power conferred by ss 32(2) requires the Tribunal to consider the interests of any person who may be affected by the review of the decision. The Applicant/participant is obviously a person whose interests are affected by the review of the decisions, as is the CEO, who is the primary decision-maker, and the person responsible for the administration of the NDIS. On the basis set out above and following I have considered their interests in reaching a conclusion as to the exercise of the discretion conferred by ss 32(2).
2. The question is whether there are any other persons whose interests may be affected by the review, such as the applicant's wife, and his service providers. In this respect the Applicant's submissions suggest that Ms Salman is being caused psychological harm by the Applicant's current circumstances and that his service providers are experiencing financial stress and business disruption because of the manual payment review of his NDIS payment claims. In my view Ms Salman in her own right (as distinct from her acting as the Applicant's representative), and the Applicant's service providers, at law, are not persons whose interests are affected by the review of the impugned decisions, and their asserted circumstances and interests are not matters that should bear on the exercise of the discretion conferred by ss 32(2). In reach that conclusion for the following reasons.
3. The reference to a person whose interests may be affected by the review of a decision in ss 32(2) must be construed by reference to s 17(1) of the ART Act read together with s 100 of the NDIS Act. In this respect, it is only a person who is "directly affected" by a NDIS reviewable decision who is to be given written notice of an original decision (ss 100(1)), and it is only a person who is "directly affected" by a reviewable decision who may request internal review of that decision: ss 100(2). Subsection 17(1) of the ART Act provides that a person whose "interests are affected" by a reviewable decision may apply to the Tribunal for review of that decision. Read together with s 100 of the NDIS Act that can only be a person directly affected by a decision.
4. There are compelling policy reasons that support this construction, which I have sought to explain in Pizzini.[38] In short summary, the NDIS Act is designed to achieve the transformative purpose of placing persons with disability at the centre of decision-making concerning their supports, enabling them to exercise choice and control in relation to those supports, rather than having others, such as family members (other than as parent representatives or plan nominees for the participant) and service providers, control those supports. A NDIS Support is personal and inalienable. It would invert the relational structure of the statutory scheme if persons other than the participant themselves were permitted to challenge their plan decisions or have their interests considered in the review of such decisions. The Applicant's wife and his service providers may have interests that are indirectly affected by the review of the decisions, but in my opinion those indirect interests should not be considered pursuant to paragraph 32(7)(b).
5. I would subject this conclusion to one qualification. In determining if a support should be approved as a reasonable and necessary support for a participant, the decision maker must consider the paragraph 34(1)(e) criteria and its associated Rules. Among other things, this requires the decision maker to take account of what it is reasonable to expect family members and carers to provide the participant. The NDIS Act is also founded upon the principle that the role of families and carers is to be acknowledged, recognised and respected.[39] Consequently, if an impugned decision resulted in a situation where the participant was obliged to become unreasonably reliant upon the informal support of a family member or carer, causing stress in that relationship, that is a relevant interest of the participant which ought to considered in the exercise of the discretion conferred by ss 32(2). However, the prism of analysis is the participant's interests, not the family member or carer's interests.

Is a ss 32(2) order desirable for the purpose of securing the effectiveness of the review in the circumstances of this case?

1. Other than to identify the purpose that is to be served by a stay or other order affecting the operation or implementation of a decision, ss 32(2) does not fetter or structure the exercise of the discretion conferred by reference to any express considerations. Nevertheless, the discretion is to be exercised judicially, having regard to established principle, which includes specific consideration of the legislative scheme in which the reviewable decision arises, [40] being the NDIS statutory scheme.
2. In this regard, in my opinion, the relevant considerations in the exercise of the discretion are:
   • - whether the Applicant has an arguable case in the substantive review,
   • - whether the form of relief sought can be the subject of an order under s 33(2),
   • - the utility or otherwise of the stay or other order sought in the specific circumstances of the case,
   • - whether the continuation of the impugned decision would constitute such a degree of hardship to the Applicant that it would have the effect of depriving them of the ability to secure a full and adequate hearing of their case in the substantive review,
   • - whether the Applicant would otherwise suffer irreversible prejudice if the stay were not granted, such as where a successful outcome would be rendered nugatory,
   • - whether the Agency would suffer irreversible prejudice if the stay sought is granted,
   • - the public interest, if any, in the exercise of the discretion,
   • - alternatives, if any, to the exercise of the discretion,
   • - Any other relevant case specific factor.

Whether the Applicant has an arguable case in the substantive review

1. The application before the Tribunal arises at an early interlocutory stage of the review proceeding before the parties have filed all the evidence they intend to rely upon and before the factual and legal issues in contention have been finally distilled. It is thus inappropriate for the Tribunal to form any view as to the ultimate merits of the Applicant's application for review at this stage of the proceeding.
2. There is divergence of opinion in comparative Tribunal cases as to whether the merits of an application for substantive review are a relevant consideration in the exercise of the discretion conferred by ss 32(2).[41]
3. In my opinion, consideration of the merits of the Applicant's substantive case in the context of an application for an order pursuant to ss 32(2) is limited to determining if the Applicant has an arguable case on review. It is necessary to establish this because a stay would be a futility if the application for review is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospects of success, or is otherwise an abuse of the process of the Tribunal.[42] If the substantive application does not disclose an arguable case it ought to be considered for dismissal on that basis prior to any consideration of an application for an order pursuant to ss 32(2).
4. In this case I am satisfied that the Applicant has an arguable case in the context of his substantive review application. In this respect,
   • - he is a participant in the NDIS, and is therefore entitled to a participant plan that contains, relevantly, the reasonable and necessary supports that will be funded under the scheme,[43]
   • - paragraph 33(5)(e) of the NDIS Act requires the decision-maker to have regard to the principle that a participant should manage his or her own plan to the extent that he or she wishes to do so when approving a SOPS under s 33(2). Immediately prior to the variation decision made on 2 September 2025 the Applicant had elected plan management, and this had been approved,
   • - immediately prior to the SOPS approval decision of 26 November 2025, 24/7 2:1 assistance with daily personal activities had been approved as a reasonable and necessary support for the Applicant,
   • - there is no issue that assistance with daily personal activities remains a NDIS Support that is capable of being funded in varying intensities as a reasonable and necessary support.[44]

Whether the form of relief sought can be the subject of an order under s 33(2)

1. I do not understand it to be controversial that ss 32(2) confers power on the Tribunal to stay the delegate's decision of 2 September 2025, as carried forward in the decisions of 26 November 2025 and 3 January 2026, to vary plan management arrangements from plan managed to Agency managed. I am satisfied that this is a form of relief that can be the subject of an order pursuant to ss 33(2).
2. However, that power does not extend to the making of any order that could affect the Agency's manual payment review of provider claims for payment submitted to the Agency by or on behalf of the Applicant. As noted above, the Agency's manual payment review involves decisions to approve NDIS amounts for payment under s 45 of the NDIS Act. That process is independent of the decisions to vary and approve SOPS decisions that are in issue in this review. Section 45 decisions are not reviewable by the Tribunal, and it therefore has no power to make any order affecting them.
3. The Tribunal's power pursuant to ss 32(2) to order what is, in effect, the interim substantive relief sought by the Applicant, being the reinstatement of 24/7 2:1 intensity support for daily personal activities pending the outcome of his substantive review application is controversial between the parties.
4. However, for the reasons I have explained above, I am satisfied that the power conferred by ss 32(2) does extend to the making of such order. Although positive in form such an order may be necessary to preserve the status quo as it pertained prior to the impugned decisions pending the outcome of the review. The power does not extend to ordering funding of something that did not exist in a participant's SOPS prior to the impugned decision, only to the reinstatement or continuation of something that did.
5. Absent such a power ss 32(2) would typically be of little utility in aid of the Tribunal's s 9 objective in impugned NDIS plan decisions.

The utility or otherwise of the stay or other order sought in the specific circumstances of the case

1. The Applicant's case for an order pursuant to ss 32(2) fundamentally rests upon two propositions:
   • - first, that the decision to vary his plan management arrangements has resulted in refused and delayed payments to his support providers, which has caused those providers to withdraw essential support for him, and real difficulties in him securing alternative providers of this support. He contends that a stay of this decision, resulting in reinstatement of plan management, would enable him to ensure payment of his providers and their ongoing engagement in his support.
   • - second, that the decisions to reduce funding for daily personal assistance puts his safety and well-being at risk because his now available funding is insufficient to provide for his needs.
2. For the reasons set out above, the Applicant is mistaken as to the utility of a stay of the plan management decision in enabling him to avoid the manual payment review that has been instituted by the Agency. The manual payment review is unrelated to the plan management arrangement and decisions whether to approve the payment of NDIS amounts under s 45 of the Act are not decisions that are reviewable by the Tribunal.
3. Subject to the manual payment review issues, I accept the premise that there may be utility in an order that required the CEO to continue to fund 24/7 2:1 high intensity support for daily personal activities pending the outcome of the substantive review in the sense that this would provide the Applicant with the benefit he seeks to obtain.
4. However, the desirability of such an order turns on other discretionary factors in this case.

Whether the continuation of the impugned decision would constitute such a degree of hardship to the Applicant that it would have the effect of depriving them of the ability to secure a full and adequate hearing of their case in the substantive review

1. As I have explained above, the fact that a decision may constitute inconvenience or mere hardship to an Applicant is not a sufficient reason to justify the exercise of the discretion conferred by ss 32(2). However, the exercise of the discretion may be justified if the degree of hardship experienced by the stay applicant because of the impugned decision is such that it operates to put the effectiveness of the review in jeopardy.
2. In this respect, ss 55(1) of the ART Act establishes a general rule of procedure which the Tribunal is bound to observe:

55 Right to present case > > General rule > > (1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(a) present the party's case; and

(b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

(c) make submissions and adduce evidence.

1. Additionally, ss 56(2) of the ART Act provides, relevantly, that an Applicant party to a proceeding must use their best endeavours to assist the Tribunal to achieve its s 9 objective. This includes the obligation to act to reasonably progress their case, comply with Tribunal directions, participate in an alternative dispute resolution process and in the final hearing.
2. As I have explained above, it has been recognised in the review of decisions concerning the cancellation of income support payments that deprivation of income support may have such a detrimental impact on an Applicant that they are rendered incapable of reasonably conducting their case before the Tribunal such that the effectiveness of the review is jeopardized. Decisions to remove or reduce funded supports from a NDIS participant's SOPS could have the same effect in my opinion.
3. In this respect, I am open to the possibility that the degree of reduction in funding for daily personal assistance in the Applicant's SOPS approved on 26 November 2025 and 2 January 2026 has resulted in an existential crisis for him, as he contends. If that is established as a matter of fact, it may place the effectiveness of the review in jeopardy, necessitating an exercise of the discretion conferred by ss 32(2) to order the reinstatement of this support as it stood prior to those decisions for the purpose of securing the effectiveness of the review.
4. However, those are not the facts as they present in this case. That is because:
   • - the Applicant's actual average monthly expenditure on all approved supports prior to the decision of 26 November 2025 was $59,000.00. That is, he was not utilising the funding approved on 12 February 2025 to the full extent by a significant margin,
   • - the Applicant's current SOPS provides a total monthly budget of $48,781.00 for all supports, including $38,787.00 for core flexible supports,
   • - the most recent assessment of the Applicant's support needs in evidence was undertaken while he was admitted to hospital in November and December 2025. That assessment concluded that the Applicant's support needs could be met through a combination of his existing NDIS funding supplemented by funding for an additional eight hours of 1:1 support per day to be provided by the health service until his entitlement to support for daily personal assistance is determined in this review. The Applicant disputes this assessment, particularly because it does not conclude that he requires 2:1 intensity support for personal daily activities, but he cannot overcome the fact that this is the most recent assessment of his support needs before the Tribunal at this stage of the proceeding, or the fact that it is the objective opinion of clinicians who may be taken to be 'disinterested' in the dispute that is before the Tribunal, in that they are not a party to this dispute. The assessment should therefore be given weight at this stage of the proceeding,
   • - taken together, the Applicant's current NDIS core supports funding, and the additional funding provided by the health service, mean that he can purchase support at 1:1 intensity for daily personal activities 24 hours a day (including eight hours of inactive overnight support). That is substantial support,
   • - it is substantially the Applicant's own case that the root cause of his inability to purchase support for daily personal activities is the manual payment review of the claims that have been submitted by him or on his behalf for payment from his NDIS plan. Those claims have not been refused or delayed due to any insufficiency of funds available from his approved budget for their payment. These claims have been refused or delayed on payment integrity grounds,
   • - the Applicant has been able to successfully conduct his case before the Tribunal to date despite the impugned decisions. He has complied with the Tribunal's directions and has attended scheduled hearings. He has submitted documentary evidence and given oral evidence. He has made written submissions, and oral submissions have been made by him and his wife and representative, Ms Salman at the scheduled hearings.
5. For the foregoing reasons I am not satisfied that the reduction in funding for support for daily personal activities has the effect in this case of depriving the Applicant of a reasonable opportunity to fairly conduct his substantive review application to hearing.

Whether the Applicant would suffer other irreversible prejudice if the stay were not granted, such as where a successful outcome would be rendered nugatory

1. For essentially the same reasons as I have stated immediately above, I am not satisfied that the Applicant would suffer other irreversible prejudice if a stay or other order affecting the operation of implementation of the impugned decisions is not granted.
2. In short summary, a stay of the plan management decision would have no impact on the manual payment review, and the Applicant has sufficient funding available to purchase support for personal daily activities for him to be able to fairly conduct his substantive review application to hearing.
3. Upon final review, the Tribunal will retain the power grant the substantive relief sought by the Applicant if the evidence establishes that 24/7 2:1 high intensity support is reasonable and necessary.

Whether the Agency would suffer irreversible prejudice if the stay sought is granted

1. I cannot see any arguable basis upon which the Agency would suffer irreversible prejudice if the orders sought by the Applicant were to be granted.
2. For the reasons stated above, those orders could not affect the manual payment review that has been instituted in relation to the claims for payment made by, or on behalf of, the Applicant from his NDIS budget. Even if plan management were reinstated it would not prejudice the Agency's capacity not to approve for payment claims that did not relate to NDIS amounts, if found.
3. Insofar as the Applicant seeks interim reinstatement of the funding that was approved for assistance with daily personal activities in his SOPS dated 12 February 2025, there is no issue that this is a NDIS support that the CEO is capable of funding, and obliged to fund, if it is reasonable and necessary, which is the dispute that is before the Tribunal for determination.
4. This is therefore not case where the interim continued funding of the support could give rise to a debt that the Agency would be statutorily required to recover from the Applicant[45] but may not be able to due to his financial circumstances. Such continued funding would be by order of the Tribunal in a statutory context in which requires support reassessment decisions to be made on a continuous recurring basis.
5. While the Agency must perform its functions and exercise its powers under the NDIS Act having regard to the need to ensure the financial sustainability of the NDIS, in the present case, that responsibility is fulfilled, pursuant to s 56 of the ART Act, by using its best endeavours to assist the Tribunal to determine if the reviewable decisions are the correct and preferable decisions. That is because, at a level of generality, the legislative assumption underpinning Part 2 of Chapter 3 of the NDIS Act is that funding of supports for participants, limited to what is reasonable and necessary, is a means by which the financial sustainability of the NDIS will be secured.

The public interest, if any, in the exercise of the discretion

1. Having regard to the social insurance legislative concept and values-based policy of the NDIS Act I am satisfied that there is a public interest in ensuring that the Applicant as a person who has been assessed as eligible to participate in the NDIS is provided with supports that are reasonable and necessary for his subsistence and social participation, including on an interim basis while there is a dispute to be resolved about this, if this is necessary for the Applicant to fairly pursue his case for review.
2. I am also satisfied that there is a public interest in the financial sustainability of the NDIS[46] such that public expenditure is limited to funding for supports that are reasonable and necessary for a participant. However, the ascertainment of what funding for supports is reasonable and necessary for the Applicant is the function of this administrative review. This public interest is therefore served by the substantive review. It is not a matter that weighs significantly in the exercise of the discretion conferred by ss 32(2).

Alternatives, if any, to the exercise of the discretion

1. An alternative to granting the interim relief sought by the Applicant is expediting the review to final hearing at which it will be determined if he is entitled to the substantive relief sought.

1. The relevant considerations in the exercise of the discretion conferred by ss 32(2) I have set out above are not exhaustive. There may be additional or alternative case specific matters that require consideration in a particular case. However, I have not identified any additional case specific factors that require consideration in this case.

1. Weighing each of these considerations in the balance I have concluded that the discretion conferred by ss 32(2) to make an order staying or otherwise affecting the operation or implementation of the impugned decisions should not be exercised in this case.
2. There is no utility in ordering a stay of the plan management variation decision. The Applicant would be in no better position vis-à-vis the impact of the manual payment review on his supports with such an order than he is now without it.
3. With respect to funding for assistance with daily personal activities, while the Applicant has an arguable case, and there is a public interest in the fulfillment of his entitlement to reasonable and necessary supports as a NDIS participant, an order pursuant to ss 32(2) is not necessary to secure the effectiveness of the substantive review. The objective evidence persuades me that the Applicant is not experiencing a degree of hardship because of the reduced funding for this support that prevents him from fairly conducting his case in the substantive review. Nor is there any reason why the Tribunal will not be able to provide the Applicant with the substantive relief he seeks in the absence of an order pursuant to ss 32(2).
4. Nevertheless, the dispute before the Tribunal concerns subsistence supports which the Applicant contends are necessary for his safety and well-being. It is therefore appropriate that this dispute is resolved as soon as practicable. The appropriate action in the circumstances is to expedite the substantive review to hearing. I note that I have made directions for this purpose and the substantive review has now been listed for hearing.

[1] Dunn and National Disability Insurance Agency [2022] AATA 4061 (Dunn)

[2] Mr Alex Anderson, by his Plan Nominee and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1551 (Anderson)

[3] Lalor and Chief Executive Officer, National Disability Insurance Agency (Practice and procedure) [2026] ARTA 30 (Lalor)

[4] See paragraphs 43(1)(b) and (c), and paragraph 47A(1A)(b)(i) of the NDIS Act.

[5] The latter being the plan reassessment date required to be specified by paragraph 33(2)(c) of the NDIS Act.

[6] Tribunal Documents, Tab T3, Risk Alert - Psychology Report, Dr M Isakovic, 6 September 2025.

[7] Maysan Holdings Pty Ltd v National Disability Insurance Agency [2025] FCA 628; see also Horizon Solsolutions Australia Pty Ltd v National Disability Insurance Agency [2025] FCA 511 at [42] - [44].

[8] In support of that proposition the CEO cites Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314 at [58], which applied Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 at [105]

[10] Yobir v Administrative Appeals Tribunal and Secretary, Department of Social Security [1994] FCA 910 at [6] and [9]; [1994] FCA 910; (1994) 48 FCR 246 (Yobir) ; Re RC and Director-General of Social Services (1981) 3 ALD 334 at 341.

[11] [1944] HCA 42; (1944) 69 CLR 407

[12] Ibid at 430; cited with respect to the predecessor provision to s 32 of the ART Act, being s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC (ASIC v AAT) 185 at [50] per Downes and Jagot JJ.

[13] Paragraph 32(7)(a) operates subject to ss 32(8) and (9) where it is not practicable to provide the parties with a reasonable opportunity to make submissions prior to the order being made.

[14] GAP-AAA and GAP-AAB; Child Support Registrar [2024] ARTA 1 (GAP-AAA and GAP-AAB) (at [12]

[15] Bayahow and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 176 at [17].

[18] Allan Bailey and Comcare Australia [1995] AATA 148 at [15].

[19] Yobir at 249; Shi v Migration Institute of Australia Ltd [2003] FCA 1304 at [25]; see also s 15AA of the Acts Interpretation Act 1901 (Cth).

[20] King Educational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No.2) [2021] FCA 183 at [51]

[21] Lesley William Alexander and Migration Agents Registration Board [1995] AATA 261 at [21]; cited with approval in Shi v Migration Institute of Australia Ltd [2003] FCA 1304 at [28]; Re PTLZ and Australian Securities and Investments Commission [2008] AATA 106 at [96] - [98]; [2008] AATA 106; (2008) 100 ALD 648 at [99] (this conclusion not disturbed on Appeal: Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164; (2008) 48 AAR 559.

[22] Yolbir at [12]; Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 at 588; Chen and Secretary, Department of Social Services (social services second review) [2018] AATA 467; Re Dart and Director-General of Social Services [1982] AATA 78; [1982] 4 ALD 553; Re Bishop and Secretary, Department of Social Security (1989) 18 ALD 661-2; Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 (Delkou) at [16].

[24] ASIC v AAT at [51] - [52] per Downes and Jagot JJ; Panganiban and Australian Securities & Investments Commission [2016] AATA 703 (Panganiban)

[26] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at [138]

[28] Productivity Commission, Disability Care and Support; Inquiry Report Volume 1, No. 54, 31 July 2011, pages 2-3; Revised Explanatory Memorandum, National Disability Insurance Scheme Bill 2013 (Cth), page 1

[30] NNFXT by his nominee, QKMBR and Chief Executive Officer, National Disability Insurance Agency (Guidance and Appeals Panel) [2026] ARTA 308 at [126].

[31] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

[32] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

[33] This orthodoxy stemmed from a decision of Deputy President Mischin in Dunn; see also the decision of Deputy President Dordevic in Anderson.

[38] Pizzini and National Disability Insurance Agency (NDIS) [2025] ARTA 486 at [64] - [66].

[39] ss 4(12) and (12A) of the NDIS Act.

[40] See, for example, Scott v Australian Securities and Investments Commission [2009] AATA 798 (Scott) at [4]; Panganiban at [7]; Re Commonwealth Banking Corp and Iannello [1998] AATA 173; (1988) 15 ALD 418 at [420]; Trades College Australia Pty Ltd v Australian Skills Quality Authority [2018] AATA 1703 at [38]; GAP-AAA and GAP-AAB at [12] - [15].

[41] Compare, for example, President Downes opinion in Scott that it does, with President Kyrou's opinion in GAP-AAA and GAP-AAB which does not refer to the merits of the substantive review as a relevant consideration.

[42] These are the grounds for 'summary' dismissal of an application for review found in ss 101(1) of the ART Act.

[44] It is declared a "NDIS Support" by item 14 of Schedule 1 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

[45] According to the principle in Aukland Harbour Board v The King (1924) AC 318

[46] paragraph 3(3)(b) and ss 4(17) of the NDIS Act