Australian Capital Territory
Energy Efficiency (Cost of Living) Improvement Record Keeping and Reporting Code of Practice 2012 (No 1)
Disallowable Instrument DI2012–268
made under the  
Energy Efficiency (Cost of Living) Improvement Act 2012, Section 25 (Codes of Practice)
EXPLANATORY STATEMENT

Overview
The Energy Efficiency (Cost of Living) Improvement Act 2012 (the Act), which provides for arrangements promoted as the Energy Efficiency Improvement Scheme (the Scheme), places a number of obligations on electricity retailers selling electricity in the ACT (retailers) to meet an energy savings obligation.  Retailers may achieve this obligation by undertaking eligible energy efficiency activities (eligible activities) in the ACT to meet their obligation. 
The eligible activities retailers may undertake are provided for in the Energy Efficiency (Cost of Living) Improvement (Eligible Activities) Determination 2012 (No 1), as notified on 
19 September 2012. These activities must be undertaken in accordance with requirements provided for in the Act and Determination, which includes approved codes of practice and other relevant legislation. 
Section 25 of the Act provides that the Administrator of the EEIS may approve codes of practice relating to reporting and record keeping requirements, amongst other things. Section 26 of the Act requires that a retailer must keep records necessary for the Administrator to determine whether the retailer’s energy savings obligations have been complied with. These records must be kept for a minimum of 5 years after the end of the compliance period to which they relate. Offences attach to failure to keep records, or provide certain reports and information in accordance with the Act.
The setting of specific record keeping and reporting requirements is essential to ensure that retailers collect, keep and provide evidence that an activity has been undertaken correctly so that the Administrator may establish a retailer’s compliance with all relevant activity and general scheme requirements. This will inform the Administrator’s actions under the Scheme, and assist with promoting safe and effective outcomes. The Administrator is also required to prepare annual reports and to the Minister on the operation and administration of the Act. 

This code provides for record keeping and reporting requirements for the Act and for determining compliance with energy savings obligations, including for—
•	compliance plans; 
•	eligible activities; 
•	compliance period reporting; 
•	periodic activity reporting; 
•	independent information audits; and
•	information and reporting requests from the administrator. 

Regulatory Impact Analysis
Section 34 of the Legislation Act provides that a Regulatory Impact Statement (RIS) must be prepared if a Disallowable Instrument is likely to impose appreciable costs on the community, or a part of the community. 
A comprehensive regulatory impact assessment, incorporating consultation with industry, community organisations and government stakeholders, was undertaken to inform the development of the Act. 
The regulatory impact analysis was based on the availability of a range of activities such as those allowed under the Victorian Energy Efficiency Target Act 2007 (Victoria), and included a detailed analysis of the likely impacts of the Scheme, including a comprehensive analysis of the likely economic costs to retailers in complying with the energy savings obligation across the range of activities. The RIS anticipated that compliance with the activity would include compliance with other regulatory requirements for carrying out activities safely and effectively and complying with record keeping and reporting requirements. The RIS is available at http://www.legislation.act.gov.au/b/db_44295/default.asp.
This instrument does not impose new obligations on a NERL retailer with an energy savings obligation under the Act, but rather clarifies the requirements on them. These requirements are consistent with the assumptions in the RIS and with those for similar schemes operating in other Australian states. 

Consultation
A discussion paper, developed in consultation with the ACT Government Solicitor, was released publicly and given to all retailers with an authorisation to sell electricity in the Territory. The discussion paper and subsequent feedback from the consultation and further discussions with stakeholders provides the basis for this code.
Detailed Explanation of provisions
Instrument
Clause 1	Name of Instrument
Clause 1 Provides for the name of the instrument as the Energy Efficiency (Cost of Living) Improvement Record Keeping and Reporting Code of Practice 2012 (No 1).
Clause 2	Commencement
This clause provides for the commencement of the instrument the day after notification.
Clause 3	Code of Practice
This clause provides that the document entitled the ‘Energy Efficiency (Cost of Living) Improvement Record Keeping and Reporting Code of Practice’ is an approved code of practice as provided for under section 25 of the Act.
Clause 4	Disapplication of notification requirement
Clause 4 disapplies the requirement of the Legislation Act 2001, section 47 (5) and 
section 47 (6), so as published standards and codes that are relied on in the code of practice do not have to be notified on the ACT legislation register.
Documents referenced in the code include Australian Standards and the Building Code of Australia (BCA). These documents are subject to copyright, making it inappropriate to notify on the legislation register. Australian Standards are available at www.standards.org.au. The BCA, including published State and Territory appendices, are available on the ABCB web site at www.abcb.gov.au.  
Clause 5	Referenced documents
Provides advice regarding how the community can access the Australian Standards and the BCA, including how they can freely access them, considering that access to the standards ad codes are generally otherwise by paid purchase or subscription.

Code of Practice
Part 1		Preliminary
Provides for the name of the code, the application of the dictionary and makes reference to the offences provided for by the Act and under other legislation relating to the recording and reporting of information.
Part 2 		Important concepts
Identifies a number of important concepts relating to record keeping and reporting as they relate to the Act and the Scheme, including the application of the code to certain stakeholders under the EEIS, including retailers, authorised contractors, authorised installers and authorised sellers.
This part also provides that the terms used in the code have the same meaning as those used in the Act, unless a different meaning is provided. It is therefore important that the code be read in conjunction with the Act.
Related to this, the Code does not limit the obligations of a retailer under any other relevant law, including the Act. This includes other construction legislation that applies to certain activities, as well as fair trading, work health and safety and privacy legislation. 
Part 3		General obligations
Outlines the requirements universal to the keeping and reporting of information in relation to the Code and the Act more generally. In particular, so that the Administrator may fairly and efficiently assess a retailer’s compliance with all obligations under the Act, Part 3 outlines how information should be kept, controlled and provided to the Administrator.
A central contact, for reporting purposes, must be established by all retailers and provided to the Administrator. The purpose of this is to facilitate the coordinated provision of information between retailers and the administrator.
As information may be personal or commercial in nature, Part 3 provides that certain records and information must be kept in confidence by the retailer and comply with any other legal requirements, including the Privacy Act 1988 (Commonwealth). For these reasons, information must be shared via a secure link provided by the Administrator.
All reports and records provided to the Administrator must be provided in a standard format so that the Administrator may effectively assess compliance. The specific format requirements for particular document types are provided under each relevant part, as summarised under Part 17.
Part 3 also outlines how documents must be identified, particularly for uneditable copies of documents that must be provided. This complements provisions elsewhere in the codes that require an uneditable copy of some reports must be provided to the administrator, as well as a standard copy. The purpose of this is to ensure that information cannot be altered and where information is taken from a report or record for use in analysis, enforcement or reporting by the Administrator the integrity of the original information is preserved.  
This part also requires that the retailer must keep particular information on parties, including contractors, installers and sellers, engaged by a retailer. The Administrator may request to see this information as outlined under Part 10 of the Code for the purpose of confirming compliance with all requirements under the Act and other relevant legislation.

Part 4		Compliance plans
This Part provides for the information that must be contained in a compliance plan, which must be provided to the Administrator before a retailer undertakes any activities under the Scheme.
In particular, a compliance plan must provide a comprehensive overview of the retailer’s estimated energy savings obligation for the compliance period and the activities they intend to undertake to meet their obligation. Further, information must be provided about the systems and processes a retailer has in place to ensure all requirements under the Act, and any other relevant legislation, are met. 
The purpose of the compliance plan is to provide the Administrator with visibility of the types of activities planned and to inform the Administrator of further steps that may need to be taken to ensure compliance with activity definitions and codes. The lodgement of the compliance plan also provides an opportunity for the Administrator to work with the relevant retailer to resolve any potential compliance matters that may be indicated by information in the plan. For this reason, it is considered essential that all information required to be included in a compliance plan, as identified under this part, is provided to the Administrator, to the satisfaction of the Administrator. If the Administrator determines that the required information has not been included in the compliance plan, the Administrator may request additional information. If additional information is requested, the compliance plan is not taken to be lodged and eligible activities must not be undertaken by the retailer until the Administrator determines that the compliance plan is complete.
Relevant sections place obligations on the Administrator to confirm that a plan is considered lodged within certain timeframes. This is to allow retailers sufficient time to rectify any deficiencies in information before they are due to commence activities. 

Part 5		Activity records
Provides that retailers must collect and keep information about the eligible activities they (or their authorised contractor, installer or seller) undertake for the purpose of meeting their energy savings obligation under the Act. This information must be recorded and kept on forms prepared by the retailer to the specifications of this part. These forms are referred to as activity record forms and are part of the overall activity certification, explained in Part 6.
The provision of general information to consumers must be included on all forms and there are a number of fields that must be provided for completion on all forms (noting some variation for select activities that do not require installation by the retailer). Provisions in the part provide flexibility to retailers in allowing them to customise forms and to create forms that contain the records for a number of activities they intend to offer.
Information must be collected about the value of the service and the value of any contributions made by the retailer and/or the consumer. The purpose of this is to inform the review of the Act to be carried out in 2014 (regarding cost effectiveness) and the setting of the Tier 2 retailer contribution.
In addition, Part 5 specifies the information that must be collected on each eligible activity available under the Eligible Activity Determination. The purpose of this is so that the compliance of the activity, and the abatement associated with undertaking that activity, may be confirmed.
The installer(s) or contractor(s) responsible for the installation of each activity, or component of an activity, (or the seller of a product where installation is not required) must be identified on the form. These installers and sellers must sign a declaration in relation to their involvement in the activity.
In the instance that multiple installers are required for the completion of an activity or an activity record form, a primary installer must be nominated. The primary installer must organise the completion of all sections. The purpose of this is to ensure coordination and adequate oversight of the completion of all requirements for an activity, especially where the completion of a requirement could be undertaken by any of the installers involved in the activity – such as providing a consumer with a compulsory fact sheet or arranging copies of certification of work.
A form is signed by all identified installers (or the seller in the case of activities not requiring installation by a retailer) and the consumer.
The completed form constitutes an activity record and each form must be easily identified by a unique identifier so that it may be easily recalled by the retailer if requested by the Administrator. The record must be stored by the retailer for 5 years following the end of a compliance year to which the record relates, as provided for by clause 26 of the Act.
The purpose of requiring the collection and storage of detailed information about each activity undertaken is to ensure that the appropriate information is captured relating to an activity when undertaken for the purposes of complying with the Scheme, and to verify calculations of abatement factors. Specifically, a portion of the information captured on the form will be reported periodically and annually to the Administrator, as provided for under Part 7 and Part 8 respectively. The Administrator may request copies of the forms, as provided for under Part 10. As such, the activity record may affect the determination of a retailer’s compliance with activity requirements and the corresponding abatement achieved towards their energy savings obligation.

Part 6		Activity certification
Part 6 details the requirements for activity certifications. Activity certifications represent the complete record that must be kept in relation to each activity undertaken by a retailer (or their representative) for the purpose of meeting their energy savings obligation.
The activity certification includes the activity record provided for in Part 5 and all certifications relating to the activity, evidence relating to the disposal, removal or decommissioning of products, and proof of purchase for each installed product.

Part 7		Periodic activity reporting
Provides for the information that must be given to the Administrator, at given intervals throughout a compliance period, relating to eligible activities undertaken by a retailer (or their representative). This information constitutes a periodic activity report. As a minimum, periodic activity reports must be given to the Administrator quarterly in relation to all activities undertaken during that quarter. 
This Part also provides, however, that the Administrator may request the more frequent reporting by retailers on certain eligible activities or the installation of certain products. This reflects the differing quality, health, safety, environmental, and consumer protection risks that apply to each of the activities and allows. In setting a more frequent reporting requirement the Administrator must have regard to these risks and include a requirement in the code of practice. Such arrangements must also be reviewed every 6 months. This is to establish the necessity of the reporting and align requirements to the risks of the activity, which may change over time and with experience of installers. Only retailers undertaking activities are required to submit periodic activity reports.
The purpose of the provision of periodic activity reports is to allow the Administrator to monitor the types of activity being undertaken. In particular, this may inform the monitoring and compliance regime of the Administrator in relation to the EEIS and other measures taken by the Administrator to ensure the ongoing safe and effective operation of the EEIS.
In addition to the information provided in a period activity report, the Administrator may request access to specific activity records, as provided for under Part 10 of the code.

Part 8		Compliance period report
Part 8 provides, in further detail to section 19 of the Act, what and how information must be given to the Administrator by a retailer in relation to a compliance period. This information constitutes a compliance period report. Reports must be provided not later than 3 months after the end of the compliance period, in accordance with the dates provided in section 74.
The information required to be given in a compliance report is similar to that given in a periodic activity report, however, a retailer must supply a report of all activities undertaken to be counted towards a retailer’s energy savings obligation for a compliance period. Information about the retailer’s sales and any acquired abatement factors must also be provided.
For Tier 2 retailers, information must be provided about the extent to which the retailer’s energy savings obligation was achieved by paying an energy savings contribution, in addition to any information related to undertaking eligible activities.
The purpose of this is to ensure that the necessary information is given to the Administrator, in a standardised format, so that the Administrator may determine if a retailer has complied with their obligations for a compliance period under the Act. 
NERL retailers who do not sell any electricity in the ACT during a compliance period will have an energy savings obligation of zero tonnes of carbon dioxide equivalents. Such retailers must still provide a compliance period report to confirm that they do not have an obligation under the Act – effectively a ‘nil return’. However, if a retailer with a zero obligation chooses to undertake eligible activities, information on these activities must be provided.  

Part 9		Independent information audits
Details the requirements for independent audits on information required by the Administrator, as provided for by the Act. This includes the process for nomination of an auditor by the retailer and approval by the Administrator or the appointment of an auditor by the Administrator. The purpose of this is to confirm a retailer’s obligations under the Act and other relevant legislation have been complied with. This is necessary to provide a clear process for audit reporting and provide reasonable timeframes for provision of information that the Administrator may require to be reported on at the time a compliance period report is given. 

Part 10	Information and reporting requests
While only certain information captured in an Activity Record must be reported periodically or per compliance period to the Administrator under Part 7 and Part 8 respectively, Part 10 provides that the Administrator may request further information on a range of areas related to assessing compliance. Specifically, the Administrator may request access to activity records and certification collected as provided for under Part 5 and Part 6 respectively. For example, the Administrator may request all activity records for a particular activity or product used or for work undertaken by a particular installer. 
These provisions complement those for periodic reporting. It is expected that periodic reporting will identify records or activities that may need further inspection to establish compliance with relevant requirements. This section can also be used in response to inspections and other compliance activities undertaken by the Administrator or authorised people to target further investigation to specific activities, installations or records.  
Part 10 provides the time periods in which information must be given to the Administrator, but also identifies that the timeframe may be adjusted in consideration of likely risk of death or injury to a person, significant harm to the environment or significant damage to property. This is necessary as a number of activities, if not carried out correctly and competently, can cause serious risks to people and property. This includes work health and safety risks to installers. If an unsafe situation arises as a result of, or in conjunction with, a person undertaking an eligible activity, retailers will need to cooperate with the Administrator to provide information as expediently as possible to deal with imminent risks.

Part 11	Miscellaneous
Identifies where copies of standards and building codes referred to in the Act may be sourced.

Dictionary
Provides for an explanation of a number of terms used in the code of practice.