Trial by Cladding
I recently finished reading Franz Kafka’s 1925 novel The Trial – the unsettling, absurd story of a young middle-class man suddenly caught up in a farce of bureaucracy. The protagonist Joseph K spends a year fighting charges which are never named, but of which he is presumed guilty. He is increasingly consumed by obscure court proceedings which, officious lawyers assure him, are very serious, but that he need not dare try to understand. Disbelief ebbs into resignation. Weekends disappear with worry, and inconvenient appointments see him start to slip up at his job at the bank. The fact he doesn’t know what he is accused of, or whether or not he did something wrong, becomes irrelevant even to himself. ‘My innocence doesn’t make the matter any simpler’, K reflects: ‘I have to fight against countless subtleties in which the Court is likely to lose itself. And in the end, out of nothing at all, an enormous fabric of guilt will be conjured up.’
I started reading The Trial after my apartment building’s last Owners Corporation meeting, because I wanted to directly understand the adjective ‘Kafkaesque’, and its applicability to our situation with combustible cladding. Like most people I knew Kafka was shorthand for absurd situations – famously Metamorphosis begins with the character waking up as a giant insect. From its popular usage I understood ‘Kafkaesque’ to mean a comically complicated process, which the situation with combustible cladding certainly already was. But I think The Trial had also once been mentioned to me in passing by a Croatian colleague who described her suspicion of cheerful government descriptions of policy changes. To her, having grown up in communist Yugoslavia, these inevitably signalled something cruelly incompetent going on in the background. ‘Like in The Trial’, she had said. In the confusing boredom of an Owners Corporation meeting concerned with the strange details of the urgent need for us to remove chunks of our building, I was drawn to finally reading Kafka’s novel. At the least, I thought it might provide a lighter perspective on our situation.
Like tens of thousands of others in Victoria, I own and live in an apartment in a building containing similar materials to what fuelled the 2017 fire at London’s Grenfell Towers, in which 72 people died. In the wake of the Grenfell fire and of a 2014 fire at the LaCrosse Building in Melbourne’s Docklands, the Victorian Government established a Cladding Taskforce – who determined that the presence of combustible cladding, including aluminium composite panels, on high rise buildings is unsafe and non-compliant. Surprisingly, the onus for rectifying non-compliant cladding in Victoria has ultimately been placed on apartment owners: not with the builders, developers, and other professionals who specified and used the materials; not with those who sold the apartments; not with the insurance agencies fond of advertising how awful it would be if a random problem were to happen to your house and ‘won’t you be glad you had insurance’ when it does; nor the local and state government regulators who signed off on the buildings (or the private building surveyors who replaced council building inspectors as part of successive waves of building industry deregulation from the 1990s). Instead, the least culpable group – owners who bought supposedly compliant apartments – have been the ones compelled to fix an urgent problem created by government and industry. Some are still facing, as Simon Lockrey and Trivess Moore reported, bills of typically $40,000 to $60,000 per apartment to do so. Yes, it is perfectly legal, and yes, it is perfectly insane: while apartment owners are ultimately held responsible for the problem, they had no way of avoiding it, and are in most cases poorly equipped to navigate the financial and wider costs of rectifying it. But as Joseph K reflects, ‘innocence doesn’t make the matter any simpler’.
If there is some small irony to this, it is that the combustible cladding crisis seems to have been undermining construction activity and property transactions, and by association the revenues of the industries and governments who perpetuated it. Whether because of this, or because of a year of campaigning by impacted apartment owners, in July 2019 – a few weeks after I first drafted this piece – Victorian Premier Daniel Andrews and Planning Minister Richard Wynne announced a $600 million ‘package to fix buildings with combustible cladding’, beginning with 15 of the buildings deemed most extreme risk. This announcement came as a welcome relief: as well as throwing a lifeline to some of the worst impacted buildings, it signalled a move away from publicly blaming apartment owners for the problem of combustible cladding.
Still, the building I live in is not one of the 15 initial buildings budgeted for assistance. We are not certain whether our building is one of the 400 or so ‘high risk’ cases, and therefore whether or not we will qualify for help at some point during the vaguely defined ‘number of years’ that the package will cover. The $600 million budgeted by the Victorian government is only a fraction of the estimated multi-billion-dollar full cost of rectifying cladding, and the bulk of responsibility for it will still lie with apartment owners. There’s also growing evidence of broader problems in Australia’s high-rise buildings, particularly in New South Wales. High-profile evacuations of the Mascot Towers, Opal Towers, and Zetland Apartments in Sydney have spotlighted evidence that the majority of newer high-rise buildings have significant fire, water, and structural issues – in addition to non-compliant cladding, and few consumer protections. One recent article referred to newer apartments as having contracted the ‘property market equivalent of the bubonic plague’. It advised – disingenuously – selling, to ‘cut your losses now’. Begging the question: to who?
Then there’s the way the Victorian government response to the cladding crisis, laudable as it may be in comparative terms, has involved setting up yet another agency – ‘Cladding Safety Victoria’. It brings to mind anthropologist David Graeber who, in The Utopia of Rules (2016), referred to the ‘iron law’ by which ‘any government initiative intended to reduce red tape and promote market forces will have the ultimate effect of increasing the total number of regulations’. In post-mortem analyses of confidence in Australia’s building industry, Geoff Hanmer and others have ascribed mounting regulatory failures and incompetence to decades of attempts to improve the industry’s efficiency through privatisation. One cartoon by Andrew Dyson shows a crumbling building adorned with the once-cocky sign ‘DEREGULATION’: its windows blown out, red-eyed gargoyles guarding the uninviting front door. Next to it, Australian politicians wearing hard hats appraise the chaotic scene while looking uncomfortably out of their depth. One offers meekly: ‘maybe some cladding…?’.
My husband and I have owned and lived in our apartment in Coburg since 2013. Just over a year ago, in June 2018, we were informed in a letter from Moreland Council as part of their cladding audit that our building was suspected of having combustible cladding. We were to ‘show cause’ as to why our building should not be condemned. The letter arrived as unexpectedly and ominously as did the warrant in The Trial, and like Joseph K, we were incredulous at first. K at the outset thinks the charges must be a joke, but still finds himself scurrying to produce papers and arguments in his defence. We, too, scurried to begin with. But our building is compliant! We have insurance! This attitude quickly came, in Kafka’s as in our experience, to seem naïve.
In the year since, strange and complicated things happened to us: more letters, lawyers, meetings, rumours that our case had or had not progressed. The public announcement of a cladding funding package was followed by more rumours and the realisation that, for now, our day-to-day issues seem set to continue – among them inflated insurance premiums, lawyer’s fees, and the unlikelihood of being able to sell our properties. The trial of apartment owners, like Kafka’s, has been uncertain, information-poor, and seemingly endless. (The five-year timeline of Victoria’s newly announced Cladding Safety Authority does at least evoke some time frame – but a long one at that, and one which may, itself, come to seem naïve). In The Trial Joseph K experiences farcical petitions and proceedings, sprinkled with vague suggestions his case is going well or poorly or that he should feel fortunate for his legal representatives and imprudent for his scepticism of the courts. The magistrates and lawyers, he is often reminded, are busy and kind-hearted. He will fluff his case by making ‘such an outcry about feeling innocent’. There are, K is told, ‘three possibilities, that is, definite acquittal, ostensible acquittal, and indefinite postponement’. Definite acquittal is unheard of. The difference between the others ‘is that ostensible acquittal demands intense concentration at long intervals, while postponement taxes your strength but means a steady strain’.
At various points of ‘intense concentration at long intervals’, when I have written to ask for clarification on combustible cladding and our obligations around it, authorities have responded by reminding me of the seriousness of the situation, and restating the processes in place – none of which have seemed to have any particular end point or way out. At best our situation could be resolved within 5 years; at worst we may be in as uncertain a position as before, and with a new agency to account to. The last legal advice we received is that as best as can be ascertained, the existing rectification orders on us as owners remain in place. In correspondence with my neighbours in recent weeks, one remarked he would ‘stay tuned for disappointment’. Like us, Kafka’s Joseph K grapples down his cynicism and resigns himself to ‘steady strain’, or ‘intense concentration at long intervals’. But the distraction of defending himself, of ‘cutting himself off from every other activity’, is wearying.
The widespread presence of combustible cladding is the product of systematic failures facilitated by cumulative legislative, policy, and industry changes: the privatising of building surveyors; changes to building insurance to protect insurers and builders; poor oversight in the construction industry and of its materials; a boom in higher density housing coupled with reduced consumer protections; and the limited powers of the Victorian Building Authority. Builders commonly (as in our case) go into administration to avoid facing building defect claims in the courts. An exemption on warranty insurance on large buildings, introduced in Victoria in 2002 following the collapse of the HIH Insurance Group, means apartment owners in the same class of buildings that are the subject of cladding orders are also those without any warranty to cover building defects. We hear conflicting information about whether performance-based solutions to cladding risk (such as fire breaks, sprinklers, and other engineering solutions to contain the spread of fire) would be acceptable. Parts of the building compliance and oversight processes appear – to bewildered apartment owners, at least – to contradict each other on basic points.
Rather than tackle fundamental regulatory issues – poor legislative and policy decisions, poor oversight, and poor industry practices – that perpetuated the combustible cladding crisis, the Victorian state government was, at least until recently, occupied exclusively with trying to compel thousands of bewildered owners into paying to rectify dangerous cladding. And many owners are simply are not in a position to pay. This has at least had the advantage of being so outlandish that most people not experiencing it didn’t believe it. In The Trial, Joseph K often has to explain his case to relatives and acquaintances, who assume he has misunderstood some basic point about his own situation. ‘Your indifference drives me mad!’ his uncle chides him, to which a newly-world-weary K retorts ‘it’s no use getting excited’. To court officials, meanwhile, he is too excited and does not understand the inherent validity of their processes – when K complains that ‘my position is becoming more and more difficult’, he is reminded he is ‘misinterpreting the facts of the case’. With combustible cladding, it is almost by design that we, as apartment owners and residents, find ourselves culpable for what would seem to be clearly the actions of others. We switch between hearing the disbelief or indifference of people outside the process who assume something this stupid couldn’t be real (or has been solved already), and fielding scolding correspondence from officials urging us to take more responsibility for ourselves. We are both overreacting and panicking needlessly, and not taking it seriously enough. While our ‘safety is the priority’, authorities remind us, ‘it is up to owners themselves to maintain their properties safely’.
In Victoria, three buildings have had cladding-related fires, 931 have some level of identified cladding risk, and at least 649 buildings are the subjects to high risk cladding rectification orders (although this number may end up being as high as 1,200 buildings according to a statement at a Building Surveyors Conference in early 2019). Despite this, no private residential building has been confirmed as fixed. Nor, apparently, has any cladding loan (a scheme through which owners may pay back their cladding debts through council loans) been brokered, in part because several Councils ruled out participating. Most impacted apartment buildings have no realistic estimates of costs for rectifying non-compliant cladding. Or, they have wildly varying estimates. Some buildings in the urgent later stages have had authorities threatening fines for inaction, while providing no guidance on alternative materials or what would constitute compliance. The government policy of keeping building names secret, and of holding individual rather than public meetings, means owners have largely been isolated without shared resources to draw on. Nonetheless over the last couple of months at public roundtables, and discussion groups, I heard apartment owners from across Melbourne sharing tales of stressful processes typically held – as in Kafka – in isolated corridors.
Our apartment building seems to be less badly affected by cladding than many others. Yet each moment we are thankful for this and try to accept the first-world silliness of the situation, some new indignity of one form or another arrives. Recently, our insurance fees more than doubled on account of the continued presence of cladding. That means an additional thousand dollars a year for our apartment and others like it. For many buildings, insurance is increasingly difficult to come by – but it is a legal requirement. Building insurance costs for owners in other buildings with suspect cladding are doubling, tripling, or sometimes rising fivefold. In some buildings the strain of Owners Corporation (OC) cost rises through insurance increases is pushing owners into financial stress, increasing arrears and furthering the difficulties owners have in maintaining buildings. This is in addition to paying for cladding lawyers and technical reports – fostering a burgeoning industry of specialised services for deflecting, mediating, or providing technical fixes to combustible cladding and related issues.
If our building were classified ‘high risk’ that would mean that, along with 400 or so buildings in Victoria, we would be financially assisted with some form of cladding rectification at some point. If we were ‘moderate risk’, like hundreds of buildings, we would not. Low and moderate risk buildings revert to the pre-existing provisions for cladding loans, of which none yet exist. It is not yet clear whether what is on offer by the Victorian Government would be full or partial removal of combustible cladding – if the latter, this would not change the situation with insurance increases, nor make it measurably easier to sell apartments. Perhaps we have simply entered the twilight zone of resentful years between announcements and infrastructure. Last week I found myself in conversation with a conductor on a country train in Victoria, who remarked in passing that ‘there’ll be a train station here soon’, referring to the small town of Goornong that the train was travelling through without stopping. ‘Is that actually going to happen now?’, I asked, since this project had been announced several times previously. ‘Well, apparently we had the funding and it was going to happen – but now…’ the conductor complained, ‘there’s this ‘cladding’ we have to pay for. Whatever ‘combustible cladding’ is! What I don’t get’, he continued more candidly, ‘is why we taxpayers have to pay for it’. I then admitted I owned an apartment with combustible cladding. That yes I, with money that had not materialised, in response to a problem that has not materially gone away, was responsible for pilfering the already ephemeral chances of country train service improvements.
In another recent instalment of indignity, last month my husband and I received a second terse notice about our balcony hanging pot plant collection (including an anonymous photo of the offending plants), which we were reminded, ‘poses a serious OH&S and fire risk to both property and persons alike’. I argued in response that the real risk was not the pot plants, but the combustible cladding that remains on our building. Yet it seems both easier and more politically acceptable to restrict the lives and pot plants of apartment residents than it does to fix a serious problem created by poor regulation and industry practices. I recall at an early meeting in our apartment about the cladding rectification order, I found myself asking ‘is this system stupid by accident or by design?’. It sounded like a barbed joke, but actually was – and is – an unanswered question.
What of the other option – giving up, or denial? Maybe the whole thing is a wind-up and residents should call its bluff. I’ve had this thought a few times, but again Kafka is sadly instructive. The last chapter of The Trial takes a darker turn. A year into his case, K fires his lawyer and gives up on the process. As a result, K is summarily executed. In fact, he is expected to execute himself, but in ‘this last failure of his… he could not relieve the officials of all their tasks’. His last words are ‘like a dog!’, said as he watches his flustered executioners look on as he bleeds to death: ‘it was as if the shame of it must outlive him.’ His last hope is that the memory of his pointless trial and death will at least be embarrassing to someone.
I hope no one else dies in a fire fuelled by combustible cladding, and that the trial of apartment owners in Australia remains, if it must continue (in the interests of generating more work for lawyers, fire engineers, and bureaucrats), within the genre of comedy rather than horror. (Kakfa, of course, deftly straddles both.) No-one has died in Victoria from cladding fires: it has ‘only’ had three fires, which ‘only’ caused extensive property damage and ongoing chaos for residents. But addressing the risk to life is, in theory, the whole point of the cladding rectification process and its urgency. The longer the process, the more risk there is of another fire. And the longer the process, the more certain it is more owners and residents will be navigating it. While the five-year timeline of Victoria’s new cladding authority seems measured from a project rollout point of view, it doesn’t quite gel with the urgency of information piled on apartment residents. Five years has a different ring to it when thinking about things like insurance fees, time in OC meetings, or scrutiny of your pot plants.
The trial of apartment owners over combustible cladding is also, it seems, having some broader awkward consequences for the same industries and governments shifting responsibility for it. Housing trends tend to be reported in abstract, passive terms – ‘consumer attitudes’ and ‘softening’ markets – rather than concrete problems with transacting properties, including those directly caused by government and industry. But it’s not unreasonable to ask whether the hundreds or thousands of apartment buildings caught in the limbo of costly issues around combustible cladding might be part of recent falls in construction levels, property sales, and associated stamp duty incomes. Many people in impacted properties love their apartment homes and want to stay in them. Although they would prefer, obviously, if the apartments were not combustible and they were not embroiled in a costly labyrinthine process to make them safe. Others want to move, but are stuck. My husband and I did try to sell our apartment, mostly because of a change in my work location to the other side of the city, but we have shelved these plans. Unsurprisingly, buyers are not attracted to apartments with combustible cladding. We’ve heard similar stories from other apartment owners in the same position. Banks have publicly signalled that they are reluctant to mortgage or refinance impacted properties, and valuers have announced they will be flagging properties known to have cladding as risky. The Australian Property Institute finalised its cladding protocol for valuers, in which an apartment (like ours) known to have non-compliant cladding will be rated the highest level or risk – ‘extremely important or urgent adverse risk for the lender’, triggering further investigation and, one can assume, not a huge level of enthusiasm to buy.
I notice older apartments for sale are now advertised as ‘solid brick, no cladding’ – and how they sell within days, whereas newer apartments with cladding seem to languish for months. Impacted apartments represent an unknown: reliable figures and timelines for cladding rectification are, as yet, rarely in existence. In Victoria, the best-case scenario is that rectification (of some level) will be complete within five years with help of the new authority. An estimated 1,400 buildings in New South Wales have combustible cladding, and the NSW government has made no moves to shift responsibility away from owners. In the meantime, the presence of cladding must be disclosed during sale in a Section 32 (although there are some appalling cases where it hasn’t been), so sales fall through during contracts due to buyer, valuer, or bank concerns. The emphasis on disclosure of cladding itself implies how buyers would, if told, generally be reluctant to proceed with purchase of a property with combustible cladding on it. I know if I were looking to buy a home now, that finding one – made of brick, preferably – with no cladding risk would be a priority. Real estate agents tell us to wait until the cladding is resolved. Having a real estate agent tell you it will be difficult to sell is not normal for the profession, and not normal for the Australian property market. Some owners, like us, haven’t bothered to put their apartment on the market, knowing it is likely too difficult given the issues with and scrutiny of cladding. Strata Communities Australia note that tightening lending restrictions on buildings with cladding also mean owners cannot borrow against their properties to finance rectification, deepening the trap of the situation.
Constraints on the capacity to sell or to borrow can have flow-on effects. Property construction and transaction numbers in Victoria have dropped over the past year, taking state governments’ huge budget reliance on stamp duty revenues with them. Over the next 5 years Victoria’s Treasury predicts a shortfall of $5.2 billion from stamp duty as a result of fewer property transactions; as many of 100,000 job losses from apartment construction downturns are being reported as a looming ‘construction recession’. ‘Shovel ready’ construction projects have long played a Keynesian role in Australia’s economy. In Yip Harburg’s lyrics to the depression-era song ‘Brother, can you spare a dime’, a worker lists the projects he once worked on while ‘building the dream’: a railway (to Goornong?), an army, a tower – ‘once I built a tower, way up to the sun, of bricks and mortar and lime’. (At least it was brick.) But ‘once I built a tower – and now it’s done’. But what happens once it’s done? As Kurt Vonnegut reminds us the ‘flaw in the human character’ is that ‘everybody wants to build and nobody wants to do maintenance’.
Why is it that apartment owners and residents are afforded so few consumer rights – considerably less, as has been pointed out, than purchasers of cars, fridges, or washing machines? Apartment residents are being sent a clear message that normal rights and regulations do not extend to higher density housing. This message and reality – and the looming ‘plague’ in newly constructed apartments – is, in turn, undermining decades of state level planning policy supporting higher density housing and urban intensification since the early 1980s. Supported by recent strategic planning policies, many people choose higher density housing for affordability and sustainability reasons – trading space for location and (what seemed like) good design. The most common reasons for choosing apartments in Australia, and the most common thing residents enjoy about apartments, is the ability to live near public transport and walking distance of amenities, and to have a home that is (in a now ironic point) safer and lower maintenance. They choose smaller mortgages with lower transport costs – for some people, apartments are all that is affordable to them. Yet Australian governments and public debates still show a wilful indifference, verging on contempt, to people living in apartments. The attitude comes easily – drawing on a long history of discomfort with what was in the 1920s termed the ‘flat evil’. Early apartments in Australian cities were denounced as ‘anti-human, anti-family and un-Australian’, and many councils, like Kuringai’s in 1921, scrambled to pass ‘flat codes’ to discourage their spread and associated moral threats like their tendency to ‘produce selfish couples, who refuse to have children’. Apartments have always been imagined as fringe dwellings in Australia – a norm against which more recent strategic planning policies have pushed, with no small conflict. Scrutiny has focused (some would say still not enough) on the external appearance and impacts, like feared parking overflow, of apartments.
Public confidence in Australia’s higher density housing, little as it was to begin with, is quickly being eroded by the poor quality of basic construction and ongoing governance arrangements. Apartments in Australia are routinely poorly constructed: 85% of those built since 2000 have serious defects – water ingress, structural problems, cracking, and so on. Opal Towers in Sydney is one headline version of this. Another, the Zetland apartments, has fire, water, structural and cladding issues so severe the dwellings are unsaleable even at a fraction of their price a few years ago. Would-be residents of the Mascot Towers face an (interest-laden) bill of at least $10 million even for the first phase of bringing the building to a habitable level. These unsaleable – even uninhabitable – apartments were in some cases purchased for near to a million dollars. They now seem transformed into the equivalent amounts of unsecured debts.
Building faults are commonplace in freestanding houses and other buildings too, but the situation in apartments becomes magnified by the fact that builders and other professionals have extraordinarily little accountability for defects in higher density housing, given policy changes made to protect the construction and insurance industries. Apartment owners instead shoulder a higher level of responsibility for more complex problems, and simultaneously have more intricately constrained rights than residents of freestanding homes. For example, as apartment residents our local government does not offer us a hard rubbish collection, although house residents get several free pick-ups per year. It’s a small thing but it adds to a broader almost unconsciously repeated narrative that the problems with apartments are what they impose on others: whether they are too tall, or too ugly, or too irresponsible with rubbish. (Part of the use of combustible cladding in the Grenfell Towers was an effort to smarten the appearance of the building to its neighbours).
An easy suspicion of higher density housing mirrors and compounds similar stereotypes around rental housing, especially social housing – The Pruitt-Igoe Myth explores how the rapid decline of a St Louis public housing estate became shorthand for an inherently flawed design and policy. This narrative of inevitable failure, however, is what allows people to collectively overlook the causative role of specific policy and funding decisions, and to conveniently overlook the experiences of people who lived in the project. Thus the conditions created by systemic and structural neglect can become justification for the continuation of disdain for given classes and races embedded in such housing. In The Color of Law Richard Rothstein details how United States federal mortgage laws and local zoning codes specifically curtailed African Americans’ access to housing or to property finance: when crowding and maintenance issues followed, these became the self-fulfilling justification for continuing exclusionary practices like ‘redlining’ (denying mortgages in mixed-race areas, on the basis they impacted property values).
The same train conductor who equated funding for cladding rectification with the loss of mooted train stations told me how his recently-purchased home had been flooded in sewage from an overstuffed septic tank. He mentioned how frustrating it was that neither the seller nor the building inspector would be held accountable. But nevertheless – his insurance had paid for the repairs. I pointed out that neither building inspectors nor insurance had helped those in apartments with combustible cladding – in fact the opposite, that our insurance premiums had increased several-fold. I reflected on (but did not say) how in some abstract way my own escalated insurance fees paid for his house to be repaired. On how the cost of a building industry downturn would be several times the cost of the direct funding. Later, I saw a news article about a sewage spill – dubbed ‘poo-nami’ – in a high-rise public housing estate, beneath which comments berated tenants for their assumed hapless complicity. One asked, in a rhetorical barb, ‘guess who’s footing the bill?’.
Conservative estimates for the cost of rectifying combustible cladding in Victoria’s apartments sit at around $1.6 billion, several times larger than the $600 million government package. Apartment owners are to foot most of that bill, but the evidence so far suggests that they cannot or will not do so – at least not while the process proves so flummoxing. Docklands’ LaCrosse building provides some hope – as it looks close to being rectified, and involved a court case in which builders and other professionals were held liable for owners’ costs. But it took five years get to that point and the building had actually caught fire. They were lucky that the builder stayed solvent. In The Trial, K is dismayed to meet a man who has been on trial for 5 years with no apparent result – ‘I’ve carried my burden for five long years … it’s no small achievement, that’. At Neo200 on Spencer Street, which set fire in February this year, many apartments are still uninhabitable, and it is rumoured that insurance cover has been withdrawn. I hope that building is one of the first slated for government assistance. But anyone who thinks similar levels of time, stress, and complexity are tenable for hundreds or likely thousands more buildings, has more faith in the systems governing our built environment than I do. If people out there do believe there is a clear timeline and cost for full cladding rectification in Australia’s apartments, now might be a good time for them to be buying apartments. But that would be to set aside the warning of the chair of Australia’s Owners Corporation Network, who advised that ‘if you are tempted to buy a new apartment over three levels, don’t’.
Given the complexities, scale, and risk of the cladding problem, government legislation and funding is the only feasible solution. The UK government, like Victoria’s, recently acted in this direction. Yet the role of government can be deceptive: bearing in mind that governments already have such cosy roles in housing markets. Australia’s relationships with the short-term bursts of property and construction seem to consist of panicking about how to mitigate its effects, and panicking when it looks like it is slowing. Deals are cut, more subsidies and grants made (first home owner grants, national building stimulus packages), more fiddling (with insurance requirements, say), issues deferred. One way of looking at it is that Australia’s governments increasingly can’t afford the costs of fixing the cladding crisis they facilitated. The Federal government has also had a role in its signing off of aluminium composite cladding and other products as safe construction materials for importation, and remains invested in changes to dwelling construction which are considered a lead indicator of economic growth. Viewed more positively, tackling the failures around cladding could over coming years perhaps restore confidence in the building industry and in turn reinstate some of the big-ticket infrastructure items promised through construction related stamp duties (maybe even that Goornong train station). Either way, if governments can’t afford to fix cladding, nor their hit to building activity and stamp duty, apartment owners are hardly better placed to pay for it. The costs of rectification are sometimes a third of their (declining) property values – and Australians are more precariously indebted to the property market than ever.
Kafka’s Joseph K lasts a year struggling with his case, flailing against his unnamed charges. He makes long speeches (like this one) but nothing changes – it’s all part of the thinly veiled absurdity of the process, of authoritative people looking like they know what is going on. There’s the sense that the highest judges of the court are not even real. And when Joseph K sees some of the ‘law’ books, they are filled with meaningless doodling. The court sees K’s indignation as simply a phase people go through, noting condescendingly that ‘almost every accused man discovered from the earliest stages a passion for suggesting reforms which often wasted time and energy that could have been better employed in other directions’. Early in the novel, when K still believes things ought to make sense, he criticises the court’s many officials and processes, arguing that ‘the significance of this great organization’, merely ‘consists in this, that innocent persons are accused of guilt, and senseless proceedings are put in motion against them, mostly without effect’. He means it to be withering, but it is not taken as such. The trial is propelled by belief in the process.
Anthropologist David Graeber (2016), in The Utopia of Rules, refers to the rise of ‘total bureaucratization’ or ‘predatory bureaucracy’, referring not to a proliferation of government per se but to a proliferation of government regulations designed to extract and redistribute wealth. Institutions like banks are, Graeber argues, intrinsically tied to the state. (Australia’s ‘big business’ job creation projects, likewise, are more often than not state-issued, state-subsidised monopolies and exclusive licenses). In such a context (as with property markets), ‘deregulation’, Graeber argues, is more accurately ‘changing the regulatory structure in a way that I like’. (In my case, this process has changed things in ways that various property, construction and insurance industries have liked.) There’s also Graeber’s theory of the ‘iron law’ by which ‘any government initiative intended to reduce red tape and promote market forces will have the ultimate effect of increasing the total number of regulations’. Indeed while building insurance and inspections in Victoria have been progressively ‘deregulated’, I am confident that the corresponding level of legalistic paperwork in my own life – all of it pointing toward my obligations and debts around said building and its cladding – is larger than it would have been previously. Such processes infiltrate the details of everyday life. While mounting government and corporate paperwork and evaluation are felt most by the poor (with ‘legions of functionaries whose primary function is to make poor people feel bad about themselves’), an internalised sense of individual culpability for circular, ineffectual systems is widespread.
I have come to notice how many ads for insurance there are, and how little they actually say. They rely instead on relatable images of loss and inconvenience – reminders of how vulnerable you are, and of how the responsible thing is to take out insurance to protect yourself. As if this will buffer you from arbitrary assignations of guilt. The role of insurance in combustible cladding has, meanwhile, proven illusory. Apartment owners are deeply indebted to their housing, and to paying to insure it, just as they are held individually responsible for the systems through which this property is created and regulated. Through such realisations can educated and comfortable people – property owners (apartments notwithstanding), first world citizens, normally the beneficiaries of systems – be shocked out of their assumption that the world is fair or that, even if things are unfair, that they at least have an internal logic. ‘But one is so unprepared’, Joseph K reflects glumly. Graeber notes how the mounting pile of paperwork in people’s lives (even if actually paper is involved less and less) renders basically everyone stupid. How we are regularly reminded that our own stupidity, not a system, is the problem. Faced with criticisms that the loan scheme through which owners would pay for cladding rectification was unworkable, Victoria’s Planning Minister Richard Wynne remarked that ‘we don’t need to change the scheme … the scheme is sound. I don’t think they fully understand it’.
Hannah Arendt wrote, in Origins of Totalitarianism, of how totalitarian regimes weaponized bureaucratic processes like those rationing work rights, housing rights, nationality and denationalisation. She also described those regimes as having a characteristic ‘shapelessness’: of ‘simultaneous and often conflicting authorities’ and of permeant instability. Even senior officials rarely understood the full machinery of government they worked in. Their power, Arendt argued, came from the mass of atomised individuals, each propelled not by some masterminded structure but by an ideological narrative. Michel Foucault’s concept of ‘governmentality’ is not dissimilar: the idea that power is not hierarchical and centralised but rather is dispersed through many layers and people, its logic internalised by its subjects. Foucault’s ‘governmentality’ has often been used to interpret the combined public and private actors of the modern neoliberal state: to argue that the ideals of privatisation are not, given the select circumstances in which they are deployed, really the withdrawal of state power but instead its restructuring into more dispersed forms. It is difficult to maintain anger against this diffused system (like Arendt’s ‘shapelessness’) – there is no single tormenter to hold accountable, and its cloying ad slogans and performance frameworks tend instead to create apathetic states of frustration, cynicism, exhaustion.
In Bullshit Jobs David Graeber reflects on apparently vast legions of modern employees – public, private, and somewhere in-between – well paid to do what feels even to themselves either perilously close to nothing, or else actively harmful. To Graeber, the notion that it is economic efficiency that underpins financial or welfare reforms is largely ideological. What he terms ‘bullshit jobs’ – ‘flunkies, goons, duct-tapers, box-tickers, and taskmasters’ – spend large portions of time and money scrutinising lower paid but essential workers, or making sure the even more universally reviled unemployed feel bad about themselves. He recounts experiences like those of a therapist tasked with counselling impoverished people in the Bronx who, she could not help but notice, experienced constant police harassment and rafts of serious problems like insecure housing. In sessions required as a condition of welfare vouchers, her ‘job was to do therapy to essentially tell them it was their own fault and their responsibility to make their lives better’. She and others in Bullshit Jobs found their work demoralising and absurd. They also spoke of embarrassment – a difficulty reconciling their ineffectual work with an ideology that private industry could not possibly be inefficient. In Hannah Arendt’s characterisation of totalitarianism, fear of disproving an ideology becomes more powerful than someone’s own subjective experiences. If our ideological narrative is the belief that governments are engaged in carefully stoking the benefits of jobs and growth, then if you have a job you must be doing something valuable (performance reviews, restructuring, modules, meetings). If you are unemployed, you need to look at your shortcomings. If you have combustible cladding, the builder or the government will have fixed it, because the system works. If you feel otherwise, the problem must lie with you.
While Kafka’s Joseph K never knows for sure, he reflects on whether it was in fact the blithe comfort of his past life that was the crime he had been charged with and, in his death, found guilty. Trials like this do give pause for reflection on luck and fairness, and on how different people either escape from or suffer the consequences of systems. Be it robo-debts or migration law or the crushing idiocy of arguing with the multi-national corporate bureaucracy of an electricity company; combustible cladding is but one small canary in a coal mine. One glimpse into the abyss. Kafka himself, ironically, requested that The Trial (which he apparently laughed out loud at while writing) be burnt at his death in 1924. Perhaps my own copy will burn in a combustible cladding fuelled fire. But it seems likely the instructiveness of Kafka’s book and the word Kafkaesque will continue to long outlive him. To what extent this is true of the businesses and governments involved in the manufacture and displacement of guilt, or of the flammably-clad apartment buildings they created and that we live in and with, remains to be seen. I was struck in reading Graeber’s Utopia of Rules by the crossovers between his description of situationists seeking to ‘cut holes in the fabric of this reality’, with the ‘fabric of guilt’ of Kafka, and the fabric of cladding itself. My expectations of the realities of government have shifted through the entry of the incongruous thing that is the wrapping of a building – where once I had confidence (more or less), has come disbelief, then horror, and now a certain rash uncertainty. ‘At first I thought it must turn out well’, said Joseph K in The Trial, ‘but now I frequently have my doubts. I don’t know how it will end. Do you?’
Arendt, Hannah (1951/2017), Origins of totalitarianism. Milton Keynes, UK: Penguin Modern Classics. P517-521
Graeber, David, (2016), “The Utopia of Rules: On Technology, Stupdiity, and the Secret Joys of Bureacracy”, Melville House Brooklyn NY.
Graeber, David, (2018), Bullshit Jobs: A Theory”.
Hurley, J., Taylor, E., & Dodson, J. (2017). Why has urban consolidation been so difficult?. In The Routledge handbook of Australian urban and regional planning, 123-135.
Kafka, Franz, (1925), The Trial / Der Prozess, (Translated by David Wyllie), http://www.kafka-online.info/the-trial.html
Rothstein, R. (2017). The color of law: A forgotten history of how our government segregated America. Liveright Publishing.