What this is for
Deciding whether to seek review of a determination is a judgement made against a clock. Miss the window and the merits stop mattering, because the statutory timeframes are firm and being a few days late is fatal in the absence of an extension.
This is the five-step assessment from the review-rights explainer, pulled out as something you can run down a file before you commit to a pathway. It carries the three review tiers, their clocks, and the governance checklist that sits behind them.
How to use it
Work the five steps in order on a single file, before drafting anything. The steps run from the reasoning to the clock deliberately: the strongest signal about whether review is worthwhile usually sits in the reasoning, and the clock is the constraint that decides whether any of it is available to you.
Every field is for a person to complete. Nothing here is a determination, and nothing in this check produces one.
The artefact
Section 1: the three review tiers
Extensions are available in limited circumstances at each tier and should not be relied upon.
Reconsideration is the gateway. ART review of a primary determination requires a reconsideration first; going straight from a primary determination to the ART is procedurally not available.
Section 62 requires the reconsideration to be carried out by a reconsideration officer who was not involved in making the primary determination. That is a procedural fairness requirement, not a courtesy.
A Federal Court appeal is on a question of law, not a fresh merits review. Errors in the application of legal tests, misconstructions of statutory provisions, denials of natural justice, and failures to provide adequate reasons can all ground a question of law. Disagreements about the weight given to evidence generally cannot.
Section 2: the five-step assessment
Step 1. Read the determination and the reasoning behind it.
Record: is the reasoning clear on the contested evidence?
A clearly reasoned determination on contested evidence is harder to displace than a poorly reasoned determination on similar facts.
Step 2. Identify the specific element in dispute.
Record: which element, and which provision?
Liability under section 14, calculation of NWE under section 8, arranging rehabilitation assessments or examinations under section 36, or the rehabilitation pathway. The review tier and the available outcomes depend on the element.
Step 3. Assess the evidence base.
Record: what evidence sat behind the determination, what has changed, and what was missed.
A reconsideration request that brings new material evidence is materially stronger than a request that re-argues the same evidence.
Step 4. Consider the AI-evidence dimension.
Record: was AI part of the original determination, and was its role documented?
Where the AI role was documented and human accountability was clear, the AI evidence is unlikely to be the path to a different outcome. Where it was not, that is potentially a procedural fairness issue worth raising.
Step 5. Mind the clock.
Record: which clock applies, when it started, and the date it expires.
Thirty days for reconsideration. Sixty days for lodgement of ART review. Twenty-eight days for a Federal Court appeal.
Section 3: what to never do
- Skip the reconsideration step in an attempt to go straight to the ART. It is procedurally not available for review of primary determinations.
- Lodge an ART application without an evidence pack that addresses the original determination's reasoning.
- Allow the ART hearing to be the first time the AI role in the determination is mentioned.
- Misstate the timeframes. The statutory timeframes are firm, and being a few days late is fatal in the absence of extension.
Section 4: governance checklist
- Reconsideration officers have been trained on AI-evidence considerations
- An evidence pack template exists for matters heading to the ART that includes the AI role where relevant
- Scheme submissions to the ART explicitly address the explainability of AI-influenced determinations where the issue arises
- ART outcomes are tracked against initial determinations to surface systematic issues
- Practice direction updates from the ART are reviewed quarterly for any AI-relevant changes
TheAICommand. Intelligence, At Your Command.