Quick answer
Section 38 is the review pathway for rehabilitation determinations. Where a rehabilitation authority other than the relevant authority makes a determination under section 36 or 37, it must notify the employee, who may then ask Comcare to review it within 30 days. Comcare may affirm, revoke or vary the determination.
This page is an educational summary for professionals working with AI. It is not the law and not legal advice. Always work from the current authoritative text linked below.
Section 38, headed "Review of certain determinations by Comcare", creates a review pathway for rehabilitation decisions. Under subsection 38(1), as soon as practicable after a rehabilitation authority other than a relevant authority makes a determination under section 36 or 37, it must serve a written notice on the employee setting out the terms, the reasons, and a statement that the employee may request a review. Subsections 38(2) and 38(3) let the employee request that review by written notice within 30 days. Under subsection 38(4) Comcare may affirm, revoke or vary the determination. Read the current compilation on the Federal Register of Legislation.
The notice duty binds the rehabilitation authority; the review duty binds Comcare. The section reaches only determinations under section 36 and section 37.
Treating it as another name for section 62 reconsideration. They are different mechanisms. Section 62 is internal, and requires a separate decision maker within the determining authority. Section 38 moves the decision to Comcare.
Two places. Notice drafting under subsection 38(1), where reasons must be genuine and not generated summaries of a decision nobody wrote down, and intake routing, where a request must be recognised as a section 38 request rather than filed as a complaint. See complaint and reconsideration routing under the SRC Act.
Section 38 is the rehabilitation branch of the review architecture. Its output is a reviewable decision, so the next stop is the Tribunal, not another internal reconsideration.
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Frequently asked questions
- How is section 38 different from section 62 reconsideration?
- Section 62 lets a determining authority reconsider its own determination, and subsections 62(1) and 62(4) require the reconsideration to be done by someone other than the person who made or was involved in making it. Section 38 instead sends a rehabilitation determination to a different body altogether, Comcare, for review.
- What is the time limit for a section 38 request?
- Paragraph 38(3)(b) requires the request to be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within any further period Comcare allows. Comcare may allow that further period either before or after the original 30 days expire.
- Does a section 38 decision go to the Tribunal?
- Yes. Section 60 defines a reviewable decision as a decision made under subsection 38(4) or section 62. Section 63 then requires written notice of the reviewable decision, including a statement about applying to the Administrative Review Tribunal, and section 64 governs the application itself.
- When does section 38 not apply?
- Subsections 38(1) and 38(2) are limited to determinations under section 36 or 37 made by a rehabilitation authority other than a relevant authority. Where the rehabilitation authority is the relevant authority, the employee's path runs through the ordinary notice and reconsideration provisions in sections 61 and 62 instead.
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