Australian General Practice

'Overcoming the data drought: exploring general practice in Australia by network analysis of big data' by Bich Tran, Peter Straka, Michael O Falster, Kirsty A Douglas, Thomas Britz and Louisa R Jorm in (2018) 209(2) Medical Journal of Australia 68-73 reports on investigation of the organisation and characteristics of medical general practice in Australia by applying novel network analysis methods to national Medicare claims data.

The authors analysed Medicare claims for general practitioner consultations during 1994–2014 for a random 10% sample of Australian residents, and applied hierarchical block modelling to identify provider practice communities (PPCs) covering around 1.7 million patients per year.

 They conclude that the number of PPCs fluctuated during the 21-year period; there were 7747 PPCs in 2014. The proportion of larger PPCs (six or more providers) increased from 32% in 1994 to 43% in 2014, while that of sole provider PPCs declined from 50% to 39%. The median annual number of claims per PPC increased from 5000 (IQR, 40–19 940) in 1994 to 9980 (190–23 800) in 2014; the proportion of PPCs that bulk-billed all patients was lowest in 2004 (21%) and highest in 2014 (29%).

Continuity of care and patient loyalty were stable; in 2014, 50% of patients saw the same provider and 78% saw a provider in the same PPC for at least 75% of consultations. The density of patient sharing in a PPC was correlated with patient loyalty to that PPC.

They argue

A strong primary care system that delivers appropriate care at the right time and in the right place is the bedrock of the Australian health care system. General practitioners are the major providers of primary care and serve as gatekeepers to specialist care and other components of the health care system. Almost all GP services are provided privately on a fee-for-service basis. Rebates are provided to patients by the national health insurance scheme according to the Medicare Benefits Schedule (MBS), and patients may seek care from several providers and at multiple locations. However, there is a dearth of information on the organisation and characteristics of Australian general practice. For example, the proportion of general practices that are accredited has not been reported since 2011,1 as the total number of practices is not known. 

Since the final Annual Survey of Divisions (ASD) in 2011–12,2 national data on the structure and characteristics of general practices have not been systematically reported. The Bettering the Evaluation and Care of Health (BEACH) survey3 was the only national study of general practice activity, describing the characteristics and activity of a representative sample (13% of practising GPs), but the program ended in 2016. The Medical Directory of Australia (MDA), published by the Australian Medical Publishing Company (http://www.ampco.com.au/mda-online), publishes estimates of the size of the GP workforce, but their data are based on mailing addresses, which do not necessarily match practice location. The National Health Workforce Dataset (NHWDS) includes data based on a survey voluntarily completed by practitioners during their annual registration, but it focuses on practitioners, not practices. Claims for subsidised services in the MBS are made on the basis of Medicare provider numbers, but, as practice location is not routinely linked, MBS data provide no information about practice activities. 

Efforts to understand the complex determinants of the quality of and variations in health care have led to the emergence of a new research approach, the application of data-driven methods to identifying and characterising networks of health care providers. A network is a set of people or groups of individuals, organisations, or other entities (“nodes”) with a pattern of interactions (“edges”). Administrative claims data have been analysed in the United States to investigate variations in the characteristics of patient-sharing networks,6,7 how these naturally occurring networks of providers are related to variations in health care costs, and quality of care.   

In this article, we report the first study to apply network analysis of national Medicare claims data in Australia to derive provider practice communities (PPCs); that is, groups of providers who share patients with each other to a greater extent than with other provider groups, as in group general practices (although a PPC does not necessarily correspond directly with a specific group practice). Using Medicare claims for the 21-year period 1994–2014 and a novel graph-partitioning algorithm, we examined trends in the number of PPCs and their characteristics, including size, bulk-billing rate, continuity of care, patient loyalty, and patient sharing.

In summary

During 1994–2014, Australian GP practice communities have generally increased in size, but continuity of care and patient loyalty have remained stable. Our novel approach to the analysis of routinely collected data allows continuous monitoring of the characteristics of Australian general practices and their influence on patient care.

Bad Behaviour and the ACCC

From the recent 'Companies Behaving Badly' speech by ACCC chair Rod Sims

... in reviewing our enforcement activity in April, in just one month alone we saw the following. 

Ford was ordered to pay $10 million in penalties after it admitted that it had engaged in unconscionable conduct in the way it dealt with complaints about PowerShift transmission cars, sometimes telling customers that shuddering was the result of the customer’s driving style despite knowing the problems with these cars. 

Telstra was ordered to pay penalties of $10 million in relation to its third-party billing service known as ‘Premium Direct Billing’ under which it exposed thousands of its own mobile phone customers to unauthorised charges. 

Thermomix paid penalties of over $4.5 million for making false or misleading representations to certain consumers through its silence about a safety issue affecting one of its products which the company knew about from a point in time. 

Flight Centre was ordered to pay $12.5 million in penalties for attempting to induce three international airlines to enter into price fixing agreements 

a second Japanese shipping company, K-Line, pleaded guilty to criminal cartel conduct concerning the international shipping of cars, trucks and buses to Australia 

proceedings against Woolworths were instituted alleging that the environmental representations made about some of its home brand picnic products were false, misleading and deceptive. 

And unfortunately, this is just the tip of the iceberg. 

Earlier this year, the Federal Court found that the food manufacturer Heinz had made misleading claims that its Little Kids Shredz products were beneficial for young children, when they contained approximately two-thirds sugar. 

Who could forget the infamous marketing of Reckitt Benckiser who made misleading representations on the packaging of each of its four Nurofen Specific Pain products? They represented that each was specifically formulated to treat a particular type of pain when in fact each product contained the same active ingredient and was no more effective at treating the type of pain than any of the other Nurofen Specific Pain products. The key difference was that the specific pain products were near double the price of the standard Nurofen product. 

Hotel giant Meriton was caught out recently taking deliberate steps to prevent guests it suspected would give an unfavourable review from receiving TripAdvisor’s ‘Review Express’ prompt email, including by inserting additional letters into guests’ email addresses so that their email addresses would not be correct. The Court found this to be a deliberate strategy by Meriton to minimise the number of negative reviews Meriton’s guests posted on TripAdvisor. 

Recently Optus Internet admitted it made misleading representations to around 14,000 customers about their transition to the NBN, including stating that their services would be disconnected (in as little as 30 days in some cases) if they did not move to the NBN when under its contracts they could not force disconnection within the timeframe claimed. 

Pental also recently admitted that it made misleading representations about its White King ‘flushable’ cleaning wipes saying that they would disintegrate in the sewerage system when flushed, just like toilet paper, when Australian wastewater authorities face significant problems because they can cause blockages in sewerage systems. We have a similar case against Kimberly-Clarke still being contested before the Court. 

We have seen more bad behaviour in the education sector in recent years than you would hope to see in a lifetime. In one case, Acquire Learning and Careers was ordered to pay penalties of $4.5 million for its tactics in pressuring consumers to enrol in vocational training. The Court found its model was based on maximising the number of enrolments it was able to achieve for its clients and thereby maximising the fees payable to it. The judge said its activities resembled those of an unscrupulous ‘fly-by-night operation’ rather than those of a prominent and market leading provider of student recruitment services, as it described itself. 

A few years ago the companies behind Bet365 paid penalties of $2.75 million for its ‘free bets’ offer in which it failed to make clear that in order to receive the represented $200 free bet offer, new customers were required to deposit and then gamble $200 of their own money first. 

And too many large companies continue to mislead consumers about their fundamental consumer guarantees which provide for refunds, replacement or repair when a good is faulty. 

For example, following the so-called ‘error 53’ which disabled some iPhones and iPads, Apple Inc admitted it misrepresented to a number of Australian customers that they were no longer eligible for a remedy if their device had been repaired by a third party, often with a low cost screen replacement. Apple Inc was ordered to pay $9 million in penalties.   

At the end of last year, the Full Federal Court upheld the finding against Valve, one of the world’s largest online video game retailers, that it had made misleading representations about consumer guarantees. 

And it is not just consumers who are subjected to bad behaviour from big companies.

Welfare Cards and Chippers

The ANAO report on The Implementation and Performance of the Cashless Debit Card Trial considers implementation and evaluation of the Cashless Debit Card trial by the Department of Social Services.

The ABC astringently reports 'Cashless welfare audit finds data on effectiveness severely flawed, but Government maintains scheme is working', going on to comment

The report said it was "difficult to conclude" whether there had been a reduction in social harm, such as alcoholism and violence, because there was a "lack of robustness in data collection". 

It pointed to missing data as part of the problem, such as hospital admission figures for Kununurra and Wyndham. 

The audit office also conducted some of its own analysis and came up with different figures to what the Social Services Minister was told. 

For example, the minister was advised that there were fewer ambulance call-outs in September 2016 compared to the previous year. However, when ANAO took seasonality into account and analysed the data over a longer period, it found a 17 per cent increase in call-outs between April and October 2016 compared to the previous year. 

It was a similar story with school attendance. The minister was told there was an increase, but ANAO analysis found it dropped for Indigenous students after the implementation of the trial.

The actual report states

Welfare quarantining, in the form of income management, was first introduced in 2007 as part of the Australian Government’s Northern Territory National Emergency Response. 

The aim of income management is to assist income support recipients to manage their fortnightly payments — such as Newstart/Youth Allowance, parenting or carer payments, and the Disability Support Pension — for essentials like food, rent and bills. 

On 1 December 2014, the Government agreed to trial a new approach to income management — the Cashless Debit Card (CDC), in Ceduna and the East Kimberley. The Cashless Debit Card Trial (CDCT or the trial) aimed to: test whether social harm caused by alcohol, gambling and drug misuse can be reduced by placing a portion (up to 80 per cent) of a participant’s income support payment onto a card that cannot be used to buy alcohol or gambling products or to withdraw cash; and inform the development of a lower cost welfare quarantining solution to replace current income management arrangements. 

On 14 March 2017, the Minister for Human Services and the Minister for Social Services announced the extension of the trial in Ceduna and the East Kimberley for a further 12 months. In addition, funding was allocated as part of the 2017–18 Budget to trial the CDC in two new locations with the Government announcing in September 2017 that the CDC would be delivered to the Goldfields region of Western Australia and also to the Hinkler Electorate (Bundaberg and Hervey Bay Region) in Queensland. 

Subsequently, the Social Services Legislation Amendment (Cashless Debit Card) Act 2018 received royal assent on 20 February 2018. The amendments restricted the expansion of the CDC, with the cashless welfare arrangements continuing to 30 June 2019 in the current trial areas of East Kimberley and Ceduna, with one new trial site in the Goldfields. 

Rationale for undertaking the audit 

Recent ANAO audits have highlighted the need for entities to articulate mechanisms to determine whether an innovation is successful and what can be learned to inform decision making regarding scaling up the implementation of that innovation. The CDCT was selected for audit to identify whether the Department of Social Services (Social Services) was well placed to inform any further roll-out of the CDC with a robust evidence base. Further, the audit aimed to provide assurance that Social Services had established a solid foundation to implement the trial including: consultation and communication with the communities involved; governance arrangements; the management of risks; and robust procurement arrangements. 

Audit objective and criteria 

The objective of the audit was to assess the Department of Social Services’ implementation and evaluation of the Cashless Debit Card Trial. 

To form a conclusion against the audit objective, the ANAO adopted the following high level audit criteria: Appropriate arrangements were established to support the implementation of the Cashless Debit Card Trial. The performance of the Cashless Debit Card Trial was adequately monitored, evaluated and reported on, including to the Minister for Social Services. 

Audit methodology 

The audit methodology included: examining and analysing documentation relating to the implementation, risk management, monitoring and evaluation for the Cashless Debit Card Trial; and interviews with key officials in the departments of Social Services and Prime Minister and Cabinet and with external stakeholders including Indue Limited (Indue), ORIMA Research (ORIMA), Community Leaders, Local Partners and others in the trial sites. 

Conclusion 

The Department of Social Services largely established appropriate arrangements to implement the Cashless Debit Card Trial, however, its approach to monitoring and evaluation was inadequate. As a consequence, it is difficult to conclude whether there had been a reduction in social harm and whether the card was a lower cost welfare quarantining approach. 

Social Services established appropriate arrangements for consultation, communicating with communities and for governance of the implementation of CDCT. Social Services was responsive to operational issues as they arose during the trial. However, it did not actively monitor risks identified in risk plans and there were deficiencies in elements of the procurement processes. 

Arrangements to monitor and evaluate the trial were in place although key activities were not undertaken or fully effective, and the level of unrestricted cash available in the community was not effectively monitored. Social Services established relevant and mostly reliable key performance indicators, but they did not cover some operational aspects of the trial such as efficiency, including cost. There was a lack of robustness in data collection and the department’s evaluation did not make use of all available administrative data to measure the impact of the trial including any change in social harm. Aspects of the proposed wider roll-out of the CDC were informed by learnings from the trial, but the trial was not designed to test the scalability of the CDC and there was no plan in place to undertake further evaluation.

Other findings are

Implementation of the Cashless Debit Card Trial 

Social Services conducted an extensive consultation process with industry and stakeholders in the trial sites. A communication strategy was developed and implemented which was largely effective, although Social Services identified areas for improvement in future rollouts. 

There were appropriate governance arrangements in place with clearly defined roles and responsibilities across key departments and stakeholders for reporting and oversight of the CDCT. 

Social Services demonstrated an integrated approach to risk management across the department linking enterprise, program and site-specific risk plans. While a CDCT program risk register was developed, the identified risks were not actively managed, some risks were not rated in accordance with the Risk Management Framework, there was inadequate reporting of risks and some key risks were not adequately addressed by the controls or treatments identified. In particular, treatments were inadequate to address evaluation data and methodology risks that were ultimately realised. Social Services managed and effectively addressed operational issues as they arose. 

Aspects of the procurement process to engage the card provider and evaluator were not robust. The department did not document a value for money assessment for the card provider’s IT build tender or assess all evaluators’ tenders completely and consistently. 

Social Services effectively established or facilitated arrangements to deliver local support to CDCT communities, although there were delays in the deployment of additional support services. As part of the CDCT, Social Services also trialled Community Panels and reviewed their effectiveness to inform broader implementation. 

Performance monitoring, evaluation and reporting 

A strategy to monitor and analyse the CDCT was developed and approved by the Minister. However, Social Services did not complete all the activities identified in the strategy (including the cost-benefit analysis) and did not undertake a post-implementation review of the CDCT despite its own guidance and its advice to the Minister that it would do a review. There was scope for Social Services to more closely monitor vulnerable participants who may participate in social harm and their access to cash. 

Key performance indicators (KPIs) developed to measure the performance of the trial were relevant, mostly reliable but not complete because they focused on evaluating only the effectiveness of the trial based on its outcomes and did not include the operational and efficiency aspects of the trial. There was no review of the KPIs during the trial and KPIs have not been established for the extension of the CDC. 

Social Services developed high level guidance to support its approach to evaluation, but the guidance was not fully operationalised. Social Services did not build evaluation into the CDCT design, nor did they collaborate and coordinate data collection to ensure an adequate baseline to measure the impact of the trial, including any change in social harm.   

Social Services regularly reported on aspects of the performance of the CDCT to the Minister but the evidence base supporting some of its advice was lacking. Social Services advised the Minister, after the conclusion of the 12 month trial, that ORIMA’s costs were greater than originally contracted and ORIMA did not use all relevant data to measure the impact of the trial, despite this being part of the agreed Evaluation Framework. 

Social Services undertook a review and reported to the Minister on a number of key lessons learned from the 12 month trial of the CDC. Learnings about the effectiveness of the Community Panels were based on the number of applications received and delays in decision making, rather than from the evaluation findings that noted a delay in the establishment of the Community Panels and a lack of communication with participants. The 12 month trial did not test the scalability of the CDC but tested a limited number of policy parameters identified in the development of the CDC. Many of the findings from the trial were specific to the cohort (predominantly indigenous) and remote location, and there was no plan in place to continue to evaluate the CDC to test its roll-out in other settings.

The ANO makes the following recommendations

1 Social Services should confirm risks are rated according to its Risk Management Framework and ensure mitigation strategies and treatments are appropriate and regularly reviewed.  

2 Social Services should employ appropriate contract management practices to ensure service level agreements and contract requirements are reviewed on a timely basis. 

3 Social Services should ensure a consistent and transparent approach when assessing tenders and fully document its decisions. 

4 Social Services should undertake a cost-benefit analysis and a post-implementation review of the trial to inform the extension and further roll-out of the CDC. 

5 Social Services should fully utilise all available data to measure performance, review its arrangements for monitoring, evaluation and collaboration between its evaluation and line areas, and build evaluation capability within the department to facilitate the effective review of evaluation methodology and the development of performance indicators. 

6 Social Services should continue to monitor and evaluate the extension of the Cashless Debit Card in Ceduna, East Kimberley and any future locations to inform design and implementation.

The ABC has meanwhile reported that biohacker and 'chipper' enthusiast Meow-Ludo Disco Gamma Meow-Meow has had his 2018 Opal Card conviction overturned.

Meow-Meow had pleaded guilty to using public transport without a valid ticket and for not producing a ticket to transport officers. That conviction reflects his disassembly of the near-field Opal Card, with the hacker - in what he reportedly claimed was an advance for cyborg rights - inserting the Opal Card chip under his skin.

Not a major innovation, given work - legally and ethically problematical or otherwise - by a range of identification-by-chip enterprises over the past 15 years, noted for example in 'Ethics and indemnification regarding the VeriChip' by Virginia Ashby Sharpe in (2008) 8(8) The American Journal of Bioethics 49-50 and 'The security implications of VeriChip cloning' by John Halamka, Ari Juels, Adam Stubblefield and Jonathan Westhues in (2006) 13(6) Journal of the American Medical Informatics Association 601-607.

As noted earlier in this blog,  Meow-Meow was fined $220 in Local Court for breaching the Opal Card terms of use and was ordered to pay $1,000 in legal costs. On  appeal to the NSW District Court the conviction  was quashed, with Dina Yehia J reportedly taking into  account Meow-Meow's good character and commenting that although there were legal issues of general deterrence, she was of the view that the objective seriousness of the offence fell towards the lower end of the range, if not the bottom. He  had no prior convictions and had not tampered with the Opal Card in order to avoid paying the fine.

Unsurprisingly Meow-Meow is reported as saying that he was pleased with the outcome, did not encourage anyone else to implant an Opal Card chip into their skin and would not do it again without permission from Transport New South Wales. On to the next appearance in the limelight?

Transparency and the Data Producer's Right

Reading 'The Many Dimensions of Transparency: A Literature Review' by Daniel Wyatt before I go off to two days of internet governance and open government meetings

Wyatt comments

This paper presents, from the perspective of a legal academic, an overview of the literature produced by political theorists and scientists on the topic of transparency. The purpose of this overview is that although legal academics that deal with this topic are generally comfortable with the ins and outs of the legislative frameworks that give life to the concept—for example the UK’s freedom of information law or the EU’s public access to documents regulation—they tend to be less clear about the theoretical underpinnings and real-world manifestations of increased transparency. Given that legal academia is ill-equipped to respond to such concerns, recourse must therefore be had to literature in the political sciences on the topic. 

To achieve the paper’s modest goal, numerous posited definitions of transparency are first outlined. Secondly, transparency’s relationship with the concepts of accountability, legitimacy and trust are then discussed. Finally, the potentially ‘negative’ aspects of the concept are analysed, for example that increased transparency leads to extreme position-taking in decision-making institutions or to decreased efficiency of decision-making processes. The ultimate conclusion of the paper is that transparency is still a vaguely understood and largely under-researched concept—particularly from an empirical perspective—and that its operation is almost entirely context-bound.

'Data Producer's Right in the Platform Economy' by Peter K. Yu in (2018) 15 Medien und Recht International comments

In October 2017, the European Commission advanced a proposal for the creation of a new data producer's right for non-personal, anonymized machine-generated data. Driven in large part by the automotive industry, this proposal has thus far attracted considerable criticisms. While commentators have questioned whether the proposed right is needed in the first place, the EU proposal has also generated more questions than answers. 

Written for a special issue on the "Legal Implications of the Platform Economy," this essay begins by revisiting the debate on sui generis database protection in both the Europe Union and the United States. It then discusses the many difficult policy questions that policymakers will have to address before they can create the new right. The essay concludes by examining four additional complications that may make it difficult to develop a coherent body of laws to govern the emerging and fast-changing data economy.

Vulnerability

Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman' by Deborah Dinner in (2018) 67(6) Emory Law Journal 1149 offers

some initial thoughts about the significance of vulnerability theory as a category of analysis in legal history. Vulnerability theory is centrally concerned with how the state should respond to the inevitability of change over time in individual, social, institutional, and environmental circumstances. Vulnerability theory thus suggests that the law must account for temporality, making legal history central to the project of legal theory. To develop this insight, I use an illustrative example from my own scholarship: the legal construction and obfuscation of vulnerability in the U.S. welfare regime.

Diner comments

Over the last decade, Professor Fineman has turned her attention to one such negative space: vulnerability in the human condition. In 2008, she published 'The Vulnerable Subject: Anchoring Equality in the Human Condition'. This essay, since cited by more than 150 law-review articles and countless book chapters, presented Fineman’s critique of the limits of antidiscrimination law and argued that recognition of universal human vulnerability should serve as the ethical foundation for a more responsive state. In the last decade, vulnerability theory has evolved considerably, but I will start my remarks with a brief overview of this landmark essay. 

Fineman’s piece starts with a familiar critique: that the formal conception of equality in U.S. antidiscrimination law — same treatment for similarly situated individuals — has proved wholly inadequate either to challenge structures of subordination or to remedy socioeconomic inequality. She draws attention to the way in which the rhetorical prominence of antidiscrimination, as our legal culture’s dominant frame for justice and injustice, reinforces the perceived legitimacy of a restrained state. Putting a twist on our understanding of the public–private divide, she argues that the contemporary state has not withered. Rather, the state refrains from using its formidable coercive authority to guarantee substantive equality. 

The essay then proceeds to chart wholly new territory in legal scholarship: universal and constant human vulnerability. Of crucial importance, Fineman departs from the popular conception of vulnerability as signaling the “victimhood, deprivation, dependency, or pathology” of particular groups. Rather, the essay advances the radical notion that vulnerability is a universal and constant aspect of the condition. Vulnerability, she explains, “should be understood as arising from our embodiment,” which carries with it the capacity for “harm, injury, and misfortune . . . whether accidental, intentional, or otherwise.” Vulnerability also stems from individuals’ differential location in social, economic, and political institutions. For this reason, while vulnerability is universal, Fineman reasons, its manifestations in specific individuals’ experiences are particular and varying. 

In my own view, Fineman’s thoughts about the simultaneous universality and particularity of vulnerability offer fruitful terrain for further scholarship. Scholars may explore the points of overlap and departure between Fineman’s theory and critical-race and feminist theories. The latter view vulnerability as institutionally produced and, generally, challenge universalist theories as insufficiently attentive to the construction and deployment of power. It seems that these two approaches to vulnerability may be compatible—a view that should not be surprising given the long and profound role Fineman has played in the development of critical theory within the legal academy. Existential vulnerability, if understood as particular in its manifestation, may support theoretical insights into the institutional production of vulnerability. Fineman and critical theorists of vulnerability similarly highlight the ways in which both state and civic society institutions construct privilege and disadvantage. Indeed, Fineman herself argues that it is not identity traits, themselves, that produce inequality. Rather, “systems of power and privilege . . . interact to produce webs of advantages and disadvantages.” 

Fineman’s project, however, is ultimately constructive rather than critical.  In keeping with her laudable pragmatism, Fineman’s theory calls for a responsive state that promotes both human and institutional resilience. Vulnerability theory argues that the state has a responsibility to promote resilience by facilitating the just distribution of physical assets such as material resources, human assets such as education and health care, and social assets such as strong, functional families and communities. For the purposes of this Essay, however, I will focus on the concept of human vulnerability rather than its cognate—resilience. 

Even at this early stage, the reader might wonder: why does the author, whose primary intellectual identity lies within the field of legal history, find this particular piece of legal theory so compelling? Here is the answer: Fineman’s theory is of considerable interest to legal historians because it is fundamentally concerned with how we should re-theorize law given the inevitability of change over time. I take the occasion of this tribute issue honoring Martha Albertson Fineman’s oeuvre to outline some ideas about the significance of vulnerability theory as a category of analysis in legal history. To begin, vulnerability theory makes historical analysis critical to law by placing historical change (and not just originalist inquiry) at the core of legal analysis. Vulnerability theory draws our attention to the fact that human beings are constantly susceptible to change, both positive and negative, in our bodily, social, and environmental circumstances. Vulnerability theory, therefore, reconceives the universal political–legal subject as dynamic rather than static, materially fragile, and socially interdependent. Vulnerability theory is thus well-suited to legal history because it foregrounds temporality as a means to understand social experience as well as institutional arrangements under law. The theory demonstrates that any theory of social justice must account for change over time. 

Even as it demonstrates the relevance of temporality for legal theory, vulnerability theory demands that historians pay greater attention to the persistence of enduring and constant human needs across time. Over the last three decades, critical-race and feminist theory has informed historical scholarship by showing how ideas about identity and difference have structured social–legal institutions. Vulnerability theory, I would argue, challenges historians to examine how history is shaped, too, by what Fineman terms inevitable, biological dependency across the life course as well as the derivative dependency of caregivers. These existential characteristics have provoked varied and shifting institutional and legal responses over time. 

The question for legal historians is how and why law has constructed and reconstructed the institutional arrangements of dependency. Accordingly, recognition of vulnerability can offer new ways to organize historical periodization and theories of causation. This Essay uses an illustrative example from my own scholarship to demonstrate the capacity for vulnerability theory to enrich legal history. It analyzes the legal construction and obfuscation of vulnerability in the U.S. “welfare regime”: the public as well as private arrangements that order social provisioning. As a short Essay meant to provoke rather than to answer questions, the piece is necessarily cursory in its treatment of historical causation, controversies, and patterns. First, I outline the relationship between gender and vulnerability in the liberal welfare regime, premised on concepts of feminine vulnerability and masculine independence. Second, I discuss the ways in which the neoliberal welfare regime assumes invulnerability: it valorizes sex neutrality, while reinforcing private responsibility for dependency. Third, I use vulnerability theory to help illuminate a historical path not taken: the transformation of the welfare regime according to the model of the universal, interdependent caregiver rather than the universal, autonomous breadwinner. Throughout this brief exposition, I endeavor to explain how Fineman’s theoretical insights inform my own methodology and analysis as a legal historian.

Australian Consumer Privacy Perceptions

The Consumer Policy Research Centre report Consumer data and the digital economy: Emerging issues in data collection, use and sharing calls for placing consumers in the driver’s seat to ensure significant benefit and innovation can flow from open data.

Salient findings are

95% wanted companies to give options to opt out of certain types of information collected about them, how it can be used and/or what can be shared with others

91%  agreed that companies should only collect the information currently needed to provide the service 

When asked ‘what data/information would you be uncomfortable with companies sharing with third parties for purposes other than delivering the product or service’, the four highest- ranking answers were:

• Phone contacts (87%) 

• Your messages (86%) 

• Device ID (84%) 

• Phone number (80%) 

Of the Australians surveyed who reported reading a Privacy Policy or Terms and Conditions for one or more services/products in the past 12 months: 67% indicated that they still signed up for one or more products even though they did not feel comfortable The most common reason (73% ) for accepting privacy policies with which consumers were not comfortable was that it was the only way to access the product or service 

Consumers surveyed found it unacceptable for companies to:

• Charge different consumers different prices based on their (data) profile (88%) 

• Collect data about them without their knowledge to assess eligibility or exclude from a loan or insurance (87%) 

• Use payment behaviour data to exclude from certain essential products and services (82%)

73% believe Government should ensure companies give consumers options to opt out of what data they provide, how it can be used and if it can be shared 

67% believe Government should develop protections to ensure consumers are not unfairly excluded from essential products or services based on the data or profile.

The authors note

Australians are spending more of their lives online. 87% were active internet users in 2017 , more than 17 million use social networking sites , and 84% of Australians are now buying products online. 

Big Data is big business. In 2018 alone, revenue from the Big Data software market was estimated at $42 billion. The introduction of the General Data Protection Regulation now provides EU consumers with new protections including greater transparency and control of data being collected about them by companies.

They argue that although  establishment of the Consumer Data Right is 'a step in the right direction, it currently falls short of economywide protections for Australian consumers whose data is being collected, shared and used on a daily basis'.

The report highlights policy implications

Building consumer trust and confidence to participate in the digital economy. 

Policy and regulatory settings must ensure that consumers can build trust through their participation in the digital economy. This will be central to the sustainable development of innovative technologies that are dependent on data collection. The United Kingdom’s Competition and Market Authority provides useful guidance for businesses and government on the elements of consumer data use practices that support well-functioning markets; which includes:

• Consumers know when and how their data is being collected and used; and have some control over whether and how they participate. 

• Businesses are using the data to compete on issues that matter to the consumer. 

• The use of consumer data benefts both consumers and businesses. 

• Rights to privacy is protected through the regulation of data collection and use. › There are effective ways to fairly manage non-compliance with regulation. 

Consumers need to be provided with genuine choice and control over collection, sharing and use 

Reforms to ensure that consumers are put in the driver’s seat when it comes to their own data are critical. Protections and regulations that are reliant on a consent model must ensure consumers genuinely comprehend and have choice over the type of data being collected, who it is being shared with and for what purpose. 

Comprehension testing and behavioural research should inform consent requirements. Essential elements of any consent regime must ensure that the consent provided is:

• Expressed – the controller must be able to demonstrate that consent was given. 

• Specifc to purpose (unbundled with other matters). 

• Easy to understand (written in clear and plain language). 

• Easily accessible 

• Able to be withdrawn (as easily as it is to give consent). 

• Freely given (not conditional if the data is not necessary for the provision of the service). 

Ensuring consumers’ right to privacy is adequately protected 

Experts caution against a wholly self-management approach to privacy. 

A balanced approach includes: having a definition for valid consent; developing practical mechanisms for people to manage their privacy for all entities, rather than micro-managing each; adjustment of time and focus of privacy law to provide guidance on types of uses at the time they are proposed; and the law to develop a code of basic privacy norms. 

Privacy by Design principles can be also applied by businesses and regulators to protect consumer privacy during the design phase, and throughout the lifecycle of any product 

Greater transparency of, and access to data and profiles 

Enabling greater transparency and access to the scores and profiles that are being built of consumers can help to avoid incorrect, biased and potentially discriminatory practices. Without transparency for consumers as to what data may have been used as an input to a company making a decision, they are unable to either challenge the outcome nor change their behaviour in the future to achieve a different outcome. To ensure algorithms and scores are not discriminatory, regulators can increase monitoring, auditing and assessment powers. 

Examples of algorithmic auditing and assessment services emerging internationally include bias check services established by the Algorithmic Justice League and ORCAA established by mathematician Cathy O’Neil for companies to test the fairness of the algorithms they are using. 

Strengthening regulatory monitoring and intervention powers 

The evolution of technology and machine-learning practices require a significant shift in capability, skills and monitoring powers within regulators. 

It is critical that regulators are adequately resourced and skilled to keep pace with new technologies and practices. They also need to be armed with sufficient discovery powers to identify potentially discriminatory or predatory lending behaviours, based on profiling practices, and to audit or assess algorithms. 

This will require investment in new skills, systems and people to keep pace with a fast-moving commercial environment. Ensuring the academic and community sector are also suffciently resourced to engage in policy and regulatory development processes will be key during this economy-wide shift in the operation of our markets.