The Health Services Amendment (Ambulance Fees) Act 2014 (NSW) came into operation today, the 1st of June 2015. This Act represents a subtle but significant shift in the way ambulance fees will be collected in NSW. From today fees will be collected as if they are a fine rather than a civil debt.
Prior to today s 67D of the Health Services Act 1997 (NSW) provided that the Minister could determine the scale of fees to be charged by the Ambulance Service of NSW. Where a person failed to pay the fee charged, the service would need to bring an action in the relevant court (in most cases, the Small Claims Division of the Local Court) and like any alleged debtor they would need to prove, on the balance of probabilities, that the defendant owed the debt claimed. There are, under the Uniform Civil Procedure Rules 2005 (NSW), a multitude of actions both the debtor and creditor could take to ensure the debt was paid, but that the debtor was not rendered destitute.
From today the system changes so that the debt may be recovered as if it was a fine. It is still the case that the Health Secretary is to establish the relevant scale of fees and may make rules detailing exemptions from the fees and the processes to be used to allow time to pay the fees (Health Services Act 1997 (NSW) ss 67K-67O). What is different is how those fees are collected.
First, the Health Secretary issues an invoice. The invoice must set out, amongst other things, the due date for payment (s 67P). Seven days after that ‘due date’, if the invoice ahs not been paid, the Secretary ay issue a ‘debt notice’ (s 67Q). When sending both an invoice and a debt notice, the Secretary must include details on how the person can seek a review of the debt. The review is conducted by the Health Secretary (s 67R; 67Y-67ZD). That is the person who reviews whether or not the invoice has been properly issued is the person who issued the invoice!
If the debt is not paid then the Secretary may issue proceedings in a ‘court of competent jurisdiction’ (s 67U). That is just like the current situation, the Secretary would have to issue a statement of claim, the person being sued could either admit or deny the debt and if they denied it, the matter would have to go to court where the Secretary would have to satisfy a Magistrate that the debt was legally owed.
But the Secretary has an alternative. Rather than sue in a court he or she may refer the matter to the Commissioner of Fines Administration. The Commissioner may serve a fee recovery order for the outstanding fee and for costs associated with the recovery (Schedule 9, cl 5-13). If the fee remains unpaid after the next due date, the Commissioner can take steps to
- Seize the debtor’s property;
- Garnishee any debts, salary or wages owed to the debtor (that is serve an order on a person who owes money to the debtor, including their employer, to require them to pay the Commissioner instead of the debtor);
- Record the debt as a charge on land, so if any land owned by the debtor is sold, the Commissioner recovers the amount then due; and
- Order that the person comes before the Commissioner to answers questions about their resources and their ability to pay.
This is what would happen if a person had an unpaid fine, but remember for a fine to be due a person at least has the option of going to court. If you receive a traffic infringement notice you can ignore it and eventually the sort of processes described above will apply, or you can elect to have the matter go to court. In court the prosecution have to prove the case ‘beyond reasonable doubt’ and then and only then are you liable to pay the fine. If you still don’t pay the states fine enforcement process can be used (Fines Act 1996 (NSW)), but at least you had the option of insisting that the Crown prove its case.
For ambulance fees, a civil debt not a criminal fine, it is the Secretary that issues the invoice, the Secretary that reviews any claim that the debtor may have perhaps that they have charged too much, charged the wrong person or for some other reason they are not liable to pay the debt. There is no provision that allows the debtor to elect to have the matter independently determined by the Magistrate. Once the Secretary has determined that the amount is due and he or she refers it to the Commissioner of Fines Administration these serious civil remedies can be applied to recover the debt due.
Will it make much of a difference? It will no doubt make the process easier for the Ambulance Service, and cheaper, but it does reflect a further watering down of traditional views of rights and the idea that one can only seize your property after ‘due process’.