44ACapability reviews

#### 44A Capability reviews Capability review of Agencies other than the Australian Public Service Commission (1) The Commissioner may, at any time, cause a capability review of an Agency (other than the Australian Public Service Commission) to be undertaken under this subsection. (2) However, the Commissioner must cause a capability review of each Department, Services Australia and the Australian Taxation Office to be undertaken under subsection (1) at least once every: (a) 5 years; or (b) if the Commissioner determines, in writing, another number of years in relation to the Agency—that other number of years. Capability review of Australian Public Service Commission (3) The Secretary of the Prime Minister’s Department must cause a capability review of the Australian Public Service Commission to be undertaken under this subsection at least once every: (a) 5 years; or (b) if the Secretary determines, in writing, another number of years—that other number of years. Capability review requirements (4) If a person causes a capability review of an Agency to be undertaken under subsection (1) or (3), the person must: (a) notify the Agency Head of the Agency, in writing, of the review; and (b) appoint one or more persons, in writing, to undertake the review; and (ba) ensure that the person or persons who undertake the review consult the Agency Minister of the Agency in undertaking the review; and (c) ensure that the person or persons who undertake the review give a written report of the review to: (i) the person who caused the review to be undertaken; and (ii) the Agency Head of the Agency; and (ca) decide whether to do either of the following under subsection (11): (i) remove material from the copy of the report that is to be published; (ii) not publish the report; and (cb) give the Public Service Minister: (i) the report; and (ii) notice of the decision mentioned in paragraph (ca); and (iii) if material is removed as mentioned in subparagraph (ca)(i)—the copy of the report that is to be published; and (d) unless a decision not to publish the report is made under subsection (11)—ensure that the report or the copy mentioned in subparagraph (ca)(i) of this subsection (as the case may be) is published on an Agency website as soon as practicable after the report is given to the Public Service Minister. (5) The Agency Head of an Agency must cooperate with a capability review of the Agency under subsection (1) or (3). (6) A report of a capability review under subsection (1) or (3): (a) must include one or more findings; and (b) may include one or more recommendations. (7) If one person is appointed under paragraph (4)(b) to undertake a capability review, the person must not be: (a) an APS employee; or (b) an Agency Head. (8) If more than one person is appointed under paragraph (4)(b) to undertake a capability review, at least one of the persons must not be: (a) an APS employee; or (b) an Agency Head. Report to be tabled (8A) Subject to subsections (8B) and (8C), the Public Service Minister must cause a copy of a report of a capability review under subsection (1) or (3) to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister. (8B) If the person who caused the capability review to be undertaken has removed material under subsection (11), the copy of the report that the Public Service Minister must cause to be tabled for the purposes of subsection (8A) is the copy that is, or is to be, published. (8C) Subsection (8A) does not apply if the person who caused the capability review to be undertaken has decided under subsection (11) not to publish the report. Determinations of longer or shorter review periods (9) A person must not make a determination under paragraph (2)(b) or (3)(b) unless satisfied that there are exceptional circumstances. (10) A determination made under paragraph (2)(b) or (3)(b) is not a legislative instrument. Exception to requirement to publish (11) For the purposes of paragraph (4)(ca), a person who causes a capability review into an Agency to be undertaken under subsection (1) or (3) and receives a written report of the review may: (a) remove material from the copy of the report that is to be published; or (b) decide not to publish the report; if publishing the material or the report (as the case may be) would, or could reasonably be expected to, damage: (c) the security of the Commonwealth; or (d) the defence of the Commonwealth; or (e) the international relations of the Commonwealth. Other capability reviews (12) This section does not prevent the Agency Head of an Agency from conducting a capability review otherwise than under subsection (1) or (3).