Robodebt,Kafka and institutional absurdism in Australia

Abstract

The report of the Royal Commission into the Robodebt Scheme was published in July 2023. It found that the scheme was a ‘costly failure of public administration, in both human and economic terms’. The Trial by Franz Kafka is a seminal literary metaphor for how bureaucracy can give way to corruption and dystopia. In a brief parallel reading, I show how the findings made by Commissioner Holmes conform with Kafka's blueprint of an absurd bureaucratic machine. I also explore some broader implications of this argument.

The report of the Royal Commission into the Robodebt Scheme was presented by Commissioner Catherine Holmes AC SC on 7 July 2023. ¹ The passage from the report which best captures its tenor is:

Robodebt was a crude and cruel mechanism, neither fair nor legal, and it made many people feel like criminals. In essence, people were traumatised on the off-chance they might owe money. It was a costly failure of public administration, in both human and economic terms. ²

In The Trial, ³ Franz Kafka tells the story of Josef K, an ordinary banker who is unexpectedly prosecuted by an unknown authority for unknown reasons. The opening sentence reads:

Someone must have been telling lies about Josef K, because one morning, without doing anything wrong, he was arrested. ⁴

Kafka’s Trial is a literary metaphor for how bureaucracy can give way to corruption and dystopia. His writing has what Hannah Arendt described as a ‘very definite feeling of unreality’ through the ‘construction of models’ and exposure of ‘underlying structures’ which are not so much surreal as hyperreal – or simply, an exaggeration or caricature. ⁵

This essay is a brief parallel reading of the Robodebt report and Kafka’s Trial. I show how the findings made by Commissioner Holmes on the nature of the Australian government scheme bear striking similarity to the ‘court organism’ ⁶ encountered by Josef K – and how Robodebt conforms with Kafka’s ‘blueprint’ of an absurd ‘bureaucratic machine’. ⁷ Importantly, this essay should be read as an introduction to, rather than a full exploration of, certain arguments and ideas.

A lawless system

Robodebt was a policy designed to identify overpayment of social security benefits (Centrelink) and raise debts accordingly. It used a flawed, and unlawful, automated methodology of ‘income averaging’ which meant that in most cases the debts alleged were partly or entirely wrong. ⁸ Further, the onus was placed on the ‘debtor’ to disprove a debt, from as far back as five years, calculated using income data unconfirmed by the relevant employer and without human oversight within the Department of Human Services. ⁹ When welfare recipients sought further information, freedom of information requests were often responded to with ‘reams of printouts of Excel spreadsheets’ without further explanation. ¹⁰ Evidence in class action proceedings showed ‘the Commonwealth unlawfully asserted such debts, totalling at least $1.763 billion against approximately 433,000 Australians.’ ¹¹

One striking aspect of the scheme was its ability to remain insulated from effective legal oversight. In-house government lawyers adopted ‘a remarkably passive approach’ and Commissioner Holmes noted that, despite the many lawyers involved, ‘[very] little attention was paid to the provisions of the social security legislation’. ¹² Further, a concerted effort was made to prevent independent review. From 2016, there was a series of decisions in the Administrative Appeals Tribunal (‘AAT’) which questioned the scheme’s lawfulness. ¹³ However, the approach taken by the departments to a growing number of adverse decisions was to settle individual cases without taking up further appeals. ¹⁴ There was also a failure to review AAT decisions in any systematic way. ¹⁵

Kafka’s hero, Josef K, spends the entire novel ignorant as to the nature of accusations against him. This obliviousness is shared by both the reader and the narrator. The prosecuting authority is nameless and formless: Josef K’s first ‘hearing’ takes place in the attic of an apartment block to which he arrives late as he becomes lost in the building. The prosecution also occurs outside the normal justice system: Josef K comments to his uncle that ‘this is not a proceeding before an ordinary court’ and he is not aware that lawyers can even help. ¹⁶ He meets another person subject to a prosecution who explains:

Together nothing can be achieved against the Court. Every case is looked at on its own, and of course the Court is most careful.… only one person might sometimes achieve something in secret; after it has been achieved the others find out; and no one knows how it happened. ¹⁷

Robodebt was infected with similar hallmarks of administrative dysfunction, at least on an objective view. One way to characterise both systems is a profound inaccessibility from both above and below, within and without, which allowed lawlessness to abound. Arendt’s commentary on Kafka, written in 1944, is a remarkably applicable criticism of Robodebt:

He knew that a man caught in the bureaucratic machinery is already condemned; and that no man can expect justice from judicial procedures where interpretation of the law is coupled with the administering of lawlessness, and where the chronic inaction of the interpreters is compensated by a bureaucratic machine whose senseless automatism has the privilege of the ultimate decision. ¹⁸

And its servants

The Commission heard from employees of the Department of Human Services including those working at Centrelink. While senior officials and politicians designed the scheme, these workers were burdened with its daily implementation. Staff noticed an increased workload as more people attended Centrelink offices aggrieved by debt notices. ¹⁹ One employee commented that she ‘had not received adequate training on how to assist customers with their debts’. ²⁰ Staff also described becoming ‘psychologically unwell’ ²¹ and feeling complicit in an ‘immoral’ operation. ²² When concerns were raised, management ‘did not care’. ²³ Welfare recipients also testified that staff ‘were unable to explain the basis on which a debt had been raised’ but would nonetheless seek to justify it. ²⁴

One prominent, and especially strange, aspect of The Trial is Josef K’s interactions with the Court’s functionaries. Clearly in Kafka’s mind, the careful control of information within a system allows it to be more easily corrupted, especially when those persons carrying out its directives lack insight into the system as a whole. Josef K attempts to interrogate the guards sent to arrest him, and one of them retorts that they know nothing. ²⁵ Leaving work one day, he happens upon the same two guards being flogged by a third man. Josef K explains, ‘I do not think you are guilty; the organisation is guilty; the high officials are guilty.’ ²⁶ Later, the prison chaplain tells Josef K the parable of the gatekeeper, who guards entry to the law until the man seeking justice dies at his feet. The chaplain and Josef K debate where the deceit lies – with the man or with the gatekeeper. The chaplain explains that the nature of the trick against the gatekeeper is that he is nothing but a servant of the Court without any knowledge of what is behind the door. ²⁷

There is one moment where these functionaries are endowed with humanity. After his first hearing, Josef K attends the court offices, again in an attic, where he becomes unwell. Two of the employees assist him, and one quietly explains:

Perhaps none of us are cold-hearted, perhaps we all would gladly help, but as functionaries of the Court it is easy to appear as if we are cold-hearted and want to help no one. I am suffering at the moment. ²⁸

The guilty citizen

At the Commission, one strand tying together the evidence of welfare recipients was ‘an enduring assumption that all persons on welfare or pension payments are potential or actual cheats’. ²⁹ They felt stigmatised as ‘second-class citizens’ and ‘criminals’. ³⁰ This was reinforced by a political narrative of the government as a ‘welfare cop’. ³¹ Aggrieved persons described deteriorating mental and physical health brought about by false debt notices. Rhys, a 28-year-old man, took his own life in January 2017; his mother, Jennifer, gave evidence that she went to her son’s Melbourne apartment and found ‘debt letters hanging on the fridge along with a drawing of a person shooting a gun in their mouth, with dollar signs coming out of the back of their head’. ³²

The Trial is partly the story of Josef K’s psychological descent from innocence to guilt. He protests his initial arrest, and during the first hearing rails against the farcical authority behind the accusations. He tells the judge sarcastically that he is not afraid of the ‘book of guilt’ on the desk. ³³ Slowly, however, Josef K is consumed by his trial. He fires his lawyer, who is bedridden and senile, and decides to represent himself, knowing that this will uproot his life and risk his job. The Court’s official painter asks, ‘so you are innocent?’ to which he responds ‘yes’, but ‘my innocence does not make things any easier … the Court pulls guilt out of somewhere where originally there was nothing’. ³⁴ In a gloomy cathedral, the prison chaplain confides, as if giving an elegy, that everyone thinks Josef K is guilty. ³⁵ In the next scene, two men arrive at his apartment and, with his tacit understanding and submission, lead Josef K outside and execute him.

In German, the word for guilt, ‘Schuld’, is also the word for ‘debt’. The testimonies of welfare recipients at the Royal Commission expose stories of internal turmoil similar to that endured by Josef K. There is a common feeling of being cast wrongly as a criminal, and common experiences of struggle and submission against the creeping weight of Schuld. Ms Bevan, another welfare recipient affected by the scheme, described how she was working to provide for her family while faced with ‘constant accusations of me … apparently doing the wrong thing when I went to such lengths to do the right thing’. ³⁶ Arendt observes:

… submission is obtained not by force, but simply through increase in the feeling of guilt of which the unbased accusation was the origin in the accused man. This feeling, of course, is based in the last instance on the fact that no man is free from guilt.

The feeling of guilt, therefore, which gets hold of K. and starts an interior development of its own, changes and models its victim until he is fit to stand trial. … This interior development of the hero – his education sentimentale – constitutes a second level of the story which accompanies the functioning of the bureaucratic machine. The events of the exterior world and the interior development coincide finally in the last scene, the execution, an execution to which, although it is without reason, K. submits without struggle. ³⁷

Conclusion

This essay is a brief illustration of something that I term institutional absurdism. ³⁸ Robodebt was ‘crude and cruel’, ³⁹ but it was also absurd. Despite the ‘profound asymmetry in resources, capacity and information’, ⁴⁰ the government elected to place the onus on disadvantaged and vulnerable citizens to disprove debt allegations stretching back years – described by Commissioner Holmes as ‘sheer unreasonableness’. ⁴¹ It led to scenes in Centrelink offices where, in good faith, staff attempted to explain inexplicable debts and justify unlawfulness. Normal checks and balances were shut out. Professor Terry Carney AO wrote in 2018, ‘Robo-debt tarnishes the reputation of machine learning and wreaks legal and moral injustice.’ ⁴² In a 2019 article, he set out seven ‘serious structural deficiencies’ which compromised the rule of law in Robodebt. ⁴³ Arendt writes relevantly:

The reader … will be inclined to think of Kafka’s nightmare world as a trivial though, perhaps, psychologically interesting forecast of a world to come. But this world actually has come to pass. … Kafka adequately represents the true nature of the thing called bureaucracy – the replacing of government by administration and of laws by arbitrary decrees. We know that Kafka’s construction was not a mere nightmare. ⁴⁴

Perhaps one element of absurd institutions is the absence of bad faith, or evil, on the part of the majority of those implicated. In his judgment in a Robodebt class action settlement reached in 2021, Justice Murphy commented, ‘I am reminded of the aphorism that, given a choice between a stuff-up (even a massive one) and a conspiracy, one should usually choose a stuff up.’ ⁴⁵ This a well-known theme in Arendt’s writing. ⁴⁶

I will end by identifying some other public systems in Australia which could be said to be absurd. ⁴⁷ This may be the subject of further research. First, Professor Ben Saul wrote in 2010, ‘Kafka was writing about rising authoritarianism in early 20th century Europe, but he could well have been describing Australia’s current migration and security laws’. ⁴⁸ Secondly, in the September 2023 edition of The Monthly, a former staffer in the Department of Infrastructure, Transport, Regional Development and Local Government said of the internal culture generally, ‘I was beholden by the same moral docility, grasping ambition and fear of disappointing the minister’s office that would [enable] robodebt’. ⁴⁹ Thirdly, in a recent article entitled ‘The destruction of university faculties’, Tim Moore, retired associate professor and academic for some 30 years, described the centralisation of decision-making at Australian universities and the development of a Vice-Chancellor managerial class divorced from the core activities of research and teaching. ⁵⁰

Finally, one observation from my current role with the Aboriginal Legal Service is that, despite best efforts, I am sure that the justice system appears as arbitrary to some clients as it did to Josef K.