Making and Breaking ‘Bad’ Habits in Drugs, Law and Human Rights Scrutiny

Abstract

Certain Australian parliaments have a process of human rights scrutiny, whereby a committee examines whether proposed laws are compatible with human rights. These processes are often driven by rituals or habitual ways of performing scrutiny that privilege reliance on legal advice over community input. Scholars have called for comparative work that helps us better understand whether habit plays a significant role in human rights scrutiny processes in other contexts.

Answering this call, this piece offers a case study of the decriminalization of public intoxication in the Australian state of Victoria and the reforms to drinking in public places in the Yarra City Council, a municipal body in that state. Both cases applied the state’s human rights charter, which requires consideration of human rights in making decisions and developing laws. We argue that both cases performed habits of human rights scrutiny and reproduced habitual associations between alcohol and safety.

Embracing the conception of law as performance and informed by performance studies research into rituals and habits, our argument is threefold: that the performance of human rights scrutiny in both cases is a ritual inflected by habitual practices or ways of doing things; that the approach to drugs (specifically, alcohol) in both cases is formed though habits of thought and practice; and that these habits of thought constitute the habitual drinker as abject and irrational. This in turn raises questions of agency and voluntarity: have performances of human rights scrutiny become so habituated that they are seen as compulsory and therefore stubborn to change?

Building on this, we conclude that there are ways in which scrutiny processes can move from performing ‘bad’ habits to performing repair in ways that are more sensitive and sensitized to people who use alcohol and other drugs.

INTRODUCTION

Certain Australian parliaments have a process of human rights scrutiny, whereby a committee examines whether proposed laws are compatible with human rights. In the state of Victoria, this process is governed by the Charter of Human Rights and Responsibilities Act 2006, which stipulates that a parliamentary committee, the Scrutiny of Acts and Regulations Committee, must consider any proposed law and report to the Parliament on whether it is incompatible with human rights enunciated in the Charter. The scrutiny process is often driven by rituals or habits that privilege reliance on legal advice over community input. The Committee has its own legal advisor and does not regularly hear from the public through its enquiries, though it has the power to do so. In other work, we suggest that this is a habitual practice that we describe as ‘a culture of reliance on only some perspectives’ (Mulcahy and Seear forthcoming).

Scholars have called for comparative work that helps us better understand whether habit plays a significant role in human rights scrutiny processes in other contexts (Seear and Mulcahy forthcoming). This can include settings outside Parliament, such as government departments, police and councils, which must consider human rights when making decisions and act compatibly with human rights. Answering this call, this article offers a case study of the decriminalization of public intoxication in the Victorian Parliament and the reforms to drinking in public places in the Yarra City Council, a municipal body in that state. Legal regulation of alcohol consumption raises several human rights issues, particularly in relation to legal responses to public drunkenness or intoxication (Seear and Mulcahy 2022a; Seear and Mulcahy 2022b). Analysing both cases together enables a consideration of how interrelated issues about public drinking have been conceptualized in both (see Mulcahy 2022: 174–5). Both cases applied the Charter, which requires consideration of human rights in making decisions and developing laws: either through the parliamentary scrutiny process or through processes of considering human rights in council decision making. While the former process is proscribed in legislation, the latter is less clearly defined and, in the case of Yarra City Council, is commonly set out in a section of a business report on items before the Council meeting headed ‘human rights and gender equality implications' (see fig. 1).

Figure 1. Extract from Yarra City Council Meeting Agenda (7 September 2021) 365.

Drawing on performance studies research into rituals and habits, we argue that both cases demonstrate habits of human rights scrutiny in a threefold manner: (1) the performance of human rights scrutiny is inflected by habitual practices; (2) the approach to alcohol is formed through habits of thought; and (3) these habits of thought reproduced habitual associations between alcohol and safety. The first section introduces these theoretical approaches. The second and third sections apply these theories to the human rights scrutiny processes in relation to decriminalizing public drunkenness in Victoria and reforming public drinking in Yarra. The final section offers conclusions on ways in which scrutiny processes can move from performing ‘bad’ habits towards performing scrutiny in ways that are more sensitive and sensitized to people who use alcohol and other drugs.

BACKGROUND AND THEORY

This analysis of performances of human rights scrutiny embraces the conception of law as performance, building on the growing scholarship in this area (Peters 2022; Leiboff 2021). As Julie Peters describes, this scholarly work is about ‘recognising law as a performance practice’ (2022: 9) and ‘a visual, embodied, spatial, sensory, and affective practice’ (10). It also invites attention to spectatorship, space and performers. Marett Leiboff describes law and performance as a ‘burgeoning field’ of scholarship focused on the ‘visibility and display of law and its practices’ (2021: 1). She goes further, however, to argue law, like theatre, ‘is meant to be done and acted upon, as a practice and a form of conduct that shapes through the formation of the self as aware and noticing, and imbricated through practice, into the consciousness and hence the body’ (xi). She also points to how these practices of law are ‘subject to repetition’ (59).

This conception of law as performance is also informed by performance studies research into rituals and habits (Schechner 2003; Turner 1982). Richard Schechner argues that ‘theatre is but one of a complex of performance activities which also includes rituals, sport, and trials (duels, ritual combats, courtroom trials)’ (2003: 179), situating legal processes as a performance activity alongside rituals. He also notes that ‘political action’ is a form of performance that attests to the ‘continuing convergence of theatre and ritual’ (132). Victor Turner terms these performances ‘social dramas’, which he analyses using theatrical terminology (1982: 9–12). Turner and Schechner were both interested in the connections between social dramas, rituals and performance, arguing that social dramas displayed a ritual process and that ‘ritual process is performance’ (Schechner 2003: 324). In other words, legal and political processes are often ritualistic, following certain patterns, structures, rules and performative dimensions inhered in ritual. Furthermore, legal and political processes – whether they be pronouncements of judgement by a court, passage of laws by a Parliament or the human rights scrutiny processes of state and municipal legislatures that are the focus of this article – draw power from their ritualized dimensions, including their (often) rigid, formal mechanisms. Schechner also argues that ‘the ritual process is identical’ to what he terms ‘“restored behaviour”, “twice-behaved behaviour”, behaviour that can be repeated’ (ibid.). Here, Schechner points to the connection between ritual and repetition. Building on Leiboff’s argument, the ritualistic dimensions of legal performance are both subject to and predicated upon repetition.

There is thus a connection between repetition and habit as it applies to social dramas such as political processes concerning human rights scrutiny, and particularly as it relates to public drinking laws. Based on this, our argument is threefold: (1) that the performance of human rights scrutiny is a ritual inflected by habitual practices or ways of doing things; (2) that the approach to drugs (specifically, alcohol) is formed though habits of thought; and (3) that these habits of thought relate to habitual associations between public drinking and unsafety, abjection and irrationality.

Responding to Schechner’s recent comment (cited in Madeira et al. 2022) that ‘the compulsions we like we call rituals; and the rituals we do not like we call compulsions’, we consider how this might frame habits of scrutiny as ritual and habits of alcohol and other drug consumption as compulsion – or whether the ritual might be a compulsion and vice versa. That is to say: could one collapse the distinction between ritual and compulsion and acknowledge that habits in the performance of human rights scrutiny (like habits in alcohol and other drug consumption) are both ritualistic and compulsive? This suggests that compulsion can stem from the subliminal, ritualistic dimensions of the legal performance of human rights. These habitual practices to justify infringements of human rights of people who use alcohol and other drugs involve habits of thought concerning those who use alcohol and other drugs (including the tendency to accept justifications without robust critique and consideration of the perspectives of those who use alcohol and other drugs) and reproduce habitual associations between alcohol and other drugs use and unsafety and so forth.

This in turn raises questions of agency and voluntarity: have aspects of the performance of human rights scrutiny become so habituated that they are seen as compulsive/compulsory and therefore stubborn to change? If one accepts that the performance of human rights scrutiny is a social drama that is inhered in ritual, then the repeated behaviours or habits that make up this ritualistic performance are inherent to the practice of human rights scrutiny itself such that they are seemingly compulsive/compulsory and unchanging.

To explore this further, we also consider Eve Sedgwick’s (1993) work on habit. Sedgwick constructs habit, ‘a version of repeated action’, as ‘an “otherwise” for addiction attribution’ and the ‘absolutes of compulsion/voluntarity’ (138–9). Sedgwick argues:

Habit makes us blind to – and thus enables to come into existence – our surroundings, ourselves as we appear to others, and the imprint of ourselves in others. Habit also, however, demarcates the space of perceptual and proprioceptive reversal and revelation – revelation at which introspection itself can never arrive. (Sedgwick 1993: 139)

Habit, for Sedgwick, is ‘banal but precious’ (ibid.), in that it simultaneously makes us blind to – but also opens the perceptive space to – oneself, one’s surroundings and one’s impact on others. Habit is ‘extraordinarily difficult to imagine [as] an analytically usable language’ given that it challenges grand paradigms around addiction, namely that of compulsion versus free will (140), and yet Sedgwick finds in habit something that is ‘one step to the side of’ addiction but also something that can reconstruct it and its glamorizing paradigms (138).

Perhaps some explanation for her reconstruction of habit as an otherwise to addiction attribution can be found in her later work (2003) on reparative reading. In this, Sedgwick argues that ‘the methodological centrality of suspicion to current critical practice has involved a concomitant privileging of the concept of paranoia’ or paranoid reading (125). Sedgwick questions ‘what price now the cultural critics’ hard-won skill at making visible, behind permissive appearances, the hidden traces of oppression and persecution?’ (141). The argument here is that cultural criticism’s suspicious or ‘paranoid’ practice of searching for traces of oppression and persecution behind phenomena might come at a cost, in that it exposes hidden wrongs but once exposed does nothing to ameliorate them. Sedgwick instead argues for ‘reparative critical practices, not as theoretical ideologies’ but as ‘relational stances’ towards a work (128, emphasis in original).

Though it is not explicated in Sedgwick’s work, a paranoid reading of the phenomenon of habit might regard it with suspicion or as a symptom of oppressive forces, such as addictive substances or rules, time constraints and unchallenged practices that govern the way of doing things. Instead, a reparative reading of habit might regard it as something not purely born of oppressive addiction or an overbearing of the will, though that may be a factor, but instead a way to negotiate compulsions and the occasional oppressive freeness of absolute free will. Or, as Clare Carlisle puts it, under this conception, ‘habit is an indispensable part of life: it not only brings order, consistency and comfort to our ever-changing experiences, but allows us to be creative and free’ (2014: 3). This compels a rethinking of the approach to habits in performances of human rights scrutiny.

As Sedgwick’s account of reparative reading does not explicitly encapsulate law (Halley 2017), we turn to the work of law and performance scholar Danish Sheikh. In recent work, Sheikh (2021a) argues that reparative readings can perform repair particularly where legal responses lack. Sheikh argues that ‘to read a text for the possibility of repair is to read a text to see the resources it can offer us’ (146). What a reparative approach also holds is the possibility of hope and ‘traumatic as it might be, hope allows the reparative reader to entertain the possibility of a different future’ (170). This is particularly important for heavily stigmatized populations such as people who use drugs. In other work, Sheikh suggests that to practice repair is ‘to craft our love object into a source of nourishment’, suggesting that the practice of repair is interlinked with the practice of love (2021b: xix).

Sheikh undertakes reparative reading in the context of theatrical responses to legal decisions or the stories that underpin the decisions, namely verbatim trial theatre based on an Indian Supreme Court case that held that the criminalization of homosexuality is constitutional (later overturned) and other non-verbatim theatre that responds to its eventual decriminalization. Here, Sheikh argues that these theatrical renditions can perform repair and that, in turn, jurisprudents can perform repair in their legal decision making. Building on this, we conclude that there are ways in which scrutiny processes can move from performing ‘bad’ habits to performing repair in ways that are more sensitive and sensitized to people who use alcohol and other drugs. In turn, and ‘with enough practice, repair becomes an involuntary act’ (xx) – a habit of its own.

The following sections apply these theories to two case studies: one concerning the decriminalization of public drunkenness in the Australian state of Victoria, and the other concerning reforms to public drinking in the Yarra City Council in the state of Victoria. Both case studies explore the performance of human rights scrutiny as it applies to laws regulating public drinking, the habits that permeate these performances and the way in which these performances perpetuate habits of thinking about public drinking.

DECRIMINALIZING PUBLIC DRUNKENNESS IN VICTORIA

In December 2020, the Victorian Government introduced the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 to repeal offences relating to public drunkenness as of November 2022 (though this was later deferred to November 2023) in response to Aboriginal deaths in custody. Victorian law requires that when legislation is introduced, the proponent must lay a statement before Parliament as to how the legislation is compatible with human rights and, if any part is not, the nature and extent of the incompatibility, and that the Parliament’s Scrutiny of Acts and Regulations Committee must report to Parliament as to whether the legislation is incompatible with human rights (Charter of Human Rights and Responsibilities Act 2006 ss 28, 30).

The statement of compatibility for the Bill, prepared by the Attorney-General, argued that ‘the Bill will promote the right to equality before the law by repealing public drunkenness laws that have continued to be applied disproportionately to certain cohorts’, including Aboriginal people (Victoria 2020: 3,924). The statement also argued that ‘the Bill promotes the right to life and the right to liberty and security’ because ‘by reducing the overrepresentation of Aboriginal people in the justice system, decriminalising public drunkenness will reduce deaths in custody’ (ibid.). The statement emphasized that ‘these rights will be further promoted by shifting the approach to public intoxication from a criminal justice response to a public health response’ (ibid.), as discussed further below. Finally, the statement argued that ‘the Bill promotes cultural rights’ (ibid.), including through ‘maintaining kinship ties and connection to land, identity and culture’ that could otherwise be impacted by imprisonment (3,925). There is a reparative impulse to this practice of law-making or, rather, un-making, given that the law is being repealed or unmade. This legislative un-making seeks to repair the damage and death caused by the over-incarceration of Aboriginal people, and in doing so the legislation itself becomes a tool of repair. As one legislator described it, the law was about ‘repairing relationships and meaningfully improving the lives of Victorian Aboriginal people’ (Victoria 2021: 56). There is a sense of hope, what Sheikh describes as ‘the tussle between what might have been – a concern of the past – and what could have been – a concern for the future’ (2021a: 170). From this recognition of past damage, there springs hope that this practice of law-unmaking might promote rights to equality, life, liberty, security and culture, perhaps most vividly seen in the description of un-making as a way of allowing kinship and connection to culture to be maintained.

In its report, the Scrutiny of Acts and Regulations Committee concluded that ‘the Bill is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006’ (Scrutiny of Acts and Regulations Committee 2021: 9). This is a technocratic response that betrays a paranoid reading. The clue is in the terms of the Scrutiny of Acts and Regulations Committee itself: it is compelled to report to Parliament whether legislation is incompatible with human rights. Legislation can still pass if it is found to be incompatible with human rights, so the Committee is left with a critique and no means of repair. The process doesn’t envisage that repair is needed, as the Committee is empowered to do no more than report to the Parliament. Some might argue that repair has already been achieved, in a way, because the human rights scrutiny process – even when it is identifying incompatibility with human rights – is repairing problems by drawing attention to them and sometimes making recommendations for change. If, as Sheikh suggests, to repair is to craft, the tools for repair work lay with the government not the Committee.

This was exposed when the Victorian Government later legislated to delay the decriminalization of public drunkenness, by introducing the Crimes Legislation Amendment Bill 2022 to defer commencement of the decriminalization of public drunkenness until November 2023 ‘to allow for the establishment, trial and evaluation of a replacement health model’ (Victoria 2022: 2,635) that had been affected by ‘the impact of the COVID-19 pandemic’ (2,643). The Scrutiny of Acts and Regulations Committee determined to ‘write to the Attorney-General seeking further information as to how [this …] is compatible with the Charter’s rights’ (Scrutiny of Acts and Regulations Committee 2022a: 12). In response, the Attorney-General argued that maintaining public drunkenness offences is compatible with the right to equality ‘because the provisions apply equally to all persons who are found drunk in public’ (Scrutiny of Acts and Regulations Committee 2022b: 52). This is a marked change in approach. While previously it was acknowledged that public drunkenness offences are incompatible with the right to equality because they are applied disproportionately to Aboriginal people, here it is argued that they are compatible with the right to equality because they are applied equally to all persons despite the response acknowledging that the offences have a ‘disproportionate impact on Aboriginal and Torres Strait Islander people’ (ibid.). Similarly, while previously it was acknowledged that public drunkenness offences are incompatible with the rights to life, liberty, security and culture because they lead to increased imprisonment of Aboriginal people, here it was argued that ‘promotion of these rights is reliant on there being a suitable replacement health model’ (53). It is as if the response from the Attorney-General is trying to craft repair over the legislation, but it lacks the love and hope that Sheikh imputes to the act of repair.

How can two human rights scrutiny processes lead to such contradictory outcomes? Perhaps the answer might lie in ritual theory. Schechner describes ritual as a habitual or routine way of doing things. In this sense, statements of compatibility are a routine way – or what could be termed a habitual practice – of justifying how legislation is compatible with human rights. Schechner argues that if the ritual ‘was disrupted, you would notice and it would disturb you’ (cited in Madeira et al. 2022). This is akin to Turner’s theory of the stages of social drama, being: breach, crisis, redress and reintegration. In this moment, there is a seeming breach of human rights that disrupts and disturbs the routine performance of legislative scrutiny, a crisis that is widened by the Committee’s paranoid reading approach that exposed the potential breach, the response from the Attorney-General that seeks to redress and resolve this breach and finally a reintegration where the Committee accepts the Attorney-General’s justification and ‘thanks the Minister’ (Scrutiny of Acts and Regulations Committee 2022b: 51). This ritual performance of human rights scrutiny is permeated by a habitual practice that some refer to as a culture of justification, and that we have previously critiqued as being a habitual practice whereby human rights are not effectively promoted but instead human rights infringements are justified (Mulcahy and Seear forthcoming). The practice of justification has become so habitualized that it is ‘an involuntary act’ (Sheikh 2021b: xx) – a habitual practice that covers up rather than (re) dresses the wound.

The deferral passed the Parliament, and the decriminalization of public drunkenness commenced in November 2023. What this suggests is that reparative approaches to law making are fragile and can be undermined when revisited or reversed. In this case, the human rights scrutiny process lapsed back into conventional habits and ritualized performances, and more reparative approaches grounded in love and hope evaporated. The second case study explores how these human rights scrutiny processes and a culture of justification for rights limitations perpetuate habits of thinking about public drinking.

REFORMING PUBLIC DRINKING IN YARRA

It has long been argued that local governments can take action to reduce what are often termed ‘alcohol related harms’ in their communities (Streker 2012). In October 2019, the Yarra City Council adopted the Consumption of Liquor in Public Places Local Law 2019 to control the consumption and possession of liquor in public places within the municipality, promote the minimization of alcohol-related harm, improve the amenity of public spaces and discourage anti-social behaviour (Consumption of Liquor in Public Places Local Law 2019 cl 2). The local law automatically terminated in October 2021 (though a new local law was adopted that month). Victorian law prohibits a public authority, such as a council, from acting in a way that is incompatible with human rights or failing to properly consider human rights when making its decisions (Charter of Human Rights and Responsibilities Act 2006 s 38(1)).

The statement of compatibility for the local law argued that it was compatible with the Charter of Human Rights and Responsibilities Act 2006 and that there were no impacts or limitations on the rights to equality, life, liberty, security and culture. This is a marked contrast to the performance of human rights scrutiny in the Victorian Parliament, which recognized that public drinking laws impacted the rights to equality, life, liberty, security and culture. This is despite the Council acknowledging feedback that the local law ‘will be used to target Aboriginal and Torres Strait Islanders’ (Yarra City Council 2019: 12). Perhaps some explanation may be found in the history of the local law. A prior version of the local law was first enacted in 2009 and, according to the Victorian Aboriginal Legal Service, ‘directly targeted Aboriginal peoples’ use of public space’ (Yarra City Council 2021b: attachment 4: 3). With this history in mind, what scope therefore is there for the council to remake the law in ways that are more compatible with the human rights of Aboriginal people? As Schechner says, ‘performance processes have the great potential for agency. And yet, agency is predetermined by the way we construct the past. We have agency only within the frame, the vectors, of what we know’ (cited in Madeira et al. 2022). The history of racialized regulation of public space inflects the performance of human rights scrutiny by the council, such that habits of thought towards Aboriginal people drinking in public impact the way that their human rights are both conceptualized and denied. To say that public drinking laws do not impact the right to life, especially in the context of Aboriginal deaths in custody, is to perpetuate the assumption, as Judith Butler might say, that ‘certain lives do not qualify as lives or are, from the start, not conceivable as lives within certain epistemological frames’ (2009: 1). Habits of thought towards Aboriginal people drinking in public places fail to grasp how their lives might be impacted by criminalization, or, further, whether their lives are worthy of protection at all. As Butler observes, ‘the one who decides or asserts rights of protection does so in the context of social and political norms that frame the decision-making process’ (21) including ‘forms of racism’ (24) – these socio-political norms are undergirded by habits of thought on race, lives and alcohol and other drug use.

Victorian law also requires that there be community engagement on any proposed local law. Several of the submissions on the proposed local law raised human rights issues, and this next part explores how these submissions perpetuate habits of thinking about public drinking and how these habits inflect attitudes towards the human rights of those who drink in public places.

In a submission on the local law, Victoria Police argued for the need to balance ‘the rights of all members of the community to use public spaces, whilst also recognising … other members of the community who have the right to live in a safe and peaceful environment’ (Yarra City Council 2019: 33). The submission described what was termed ‘alcohol related harm’ or ‘alcohol fuelled violence and antisocial behaviour’ and argued that ‘alcohol significantly contributes to road trauma, assaults and sexual assaults, family violence, property damage, child abuse, victimisation and public disorder’ (34). One example provided was of ‘large groups of intoxicated non-residents congregating on the grounds of the Richmond housing estate’ in the south of the city involved in ‘anti-social behaviours and crimes committed against persons (assaults, robberies)’ (33). The submission argued for need to enable police to request these groups ‘to cease drinking and seal the container if possible or dispose of the alcohol’ (ibid.).

The submission perpetuates a habit of thinking around alcohol as unsafe, unpeaceful and harmful and as something that contributes to or ‘fuels’ violence and criminal behaviour. In our other work, we have found that ‘laws that would limit the rights of people who use alcohol and other drugs were routinely seen as justifiable on the basis that alcohol and other drugs were inherently “unsafe”’ (Seear and Mulcahy 2022a: 258). This betrays a paranoid approach to public drinking that depicts it as the cause of wrongs and regulation of it as the way to address these possible wrongs, but, as we have found elsewhere, ‘the connections between alcohol and other drugs and safety [are] often simply assumed or asserted, without further explication, or articulated in nebulous and vague ways’ with an ‘absence of almost any references to who might be perpetuating such crimes, or the gendered dimension of some phenomena’ (267). In short, alcohol is depicted as the causal element in criminal offending, without any substantive consideration of the complex array of factors that shape such offending, or those who would be particularly affected by sweeping regulations, including public drinking laws. The submission acknowledged that ‘street drinkers may be among the most vulnerable people in our society’ (Yarra City Council 2019: 34). However, there was little understanding shown as to how these habitual approaches to regulating public drinking might contribute to this vulnerability.

In October 2021, just before the local law was due to sunset, Yarra City Council adopted the General (Consumption of Liquor in Public Places) Amendment Local Law 2021, so that such activity does not interfere with the amenity and enjoyment of those places (General (Consumption of Liquor in Public Places) Amendment Local Law 2021 cl 2). In a submission on the local law, Fitzroy Legal Service argued that there is an ‘absence of clear evidence’ about ‘the extent to which public drinking … interferes with community safety and the amenity of public places’ (Yarra City Council 2021a: 379), and to the extent that there is evidence, it ‘seems comprised entirely of anecdotal examples’ (381). The submission contended that the proposed local law ‘wrongly assumes there is a demonstrable link’ between ‘people drinking in public spaces’ and ‘harms – such as violence or property damage’ (382). As a result, the submission argued, the proposed local law effectively criminalizes the act of drinking even if the drinker has not yet behaved in a way that breaches the criminal law on the presumption that the act of drinking may cause them to breach the criminal law. The submission effectively challenges the habits of thinking that permeated Victoria Police’s submission on the regulation of public drinking.

At the same time, the submission acknowledged the presence of ‘alcohol-related harms’ and that ‘for many people dependence on alcohol and other drugs is a significant health concern’ and argued for ‘a health-based response to the issue of public drunkenness’ (ibid.). Furthermore, the submission argued that the ‘local law risks excluding from our public places people deemed “untidy” and … sends a message to some members of the community that they are not wanted’ (380). The submission instead argued for ‘strengthening the relationships between street drinkers, residents, community services, and business owners’ and ‘empowering community to better know and understand each other’ (384). Similarly, in another submission on the local law, the Victorian Aboriginal Legal Service argued that the Council ‘should adopt a health-based approach to public drinking that is underpinned by values, including care, compassion, respect, and cultural appropriateness’ that ‘will ensure that individuals who require a health response, are supported to access appropriate services’ (Yarra City Council 2021b: attachment 4: 6).

This is a reparative approach, whereby it is argued that a ‘health-based response’ will ameliorate the harms related to the use of alcohol, and that such an approach is underpinned by values concerning connection, empowerment and care, and contradistinction to a criminal justice-based approach. To paraphrase Sheikh, there is a hope that health ‘might heal what the law breaks’ (2021a: 147). In this hope, the submissions turn to something outside the law: a health-based approach that might perform a sense of healing that the law lacks. A health-based approach contributes to a different form of cultural intelligibility or what Butler terms ‘a recognition of precariousness as a shared condition of human life’ (2009: 13) and that ‘life requires various social and economic conditions to be met in order to be sustained as a life’ (14). It breaks habits of thought about the appropriate response to public drinking and advances a seemingly more compassionate response. However, health-based approaches to alcohol and other drug use can be controversial (Hunt 2004), and therefore the assumption that a health-based approach will repair lost connection and build empowerment and care should not be taken for granted.

This analysis has pointed to habits within the ritual performance of human rights scrutiny of alcohol laws and how these habits might themselves be grounded in habitual ways of thinking about public drinking. While one might be critical of these habits in legal performances and look to alternative approaches such as health-based responses, it is important to remember that performances of healthcare are also themselves inflected by habits of thinking about alcohol and other drugs (Baxter 2017).

CONCLUSIONS

The preceding sections have analysed and examined two case studies of performances of human rights scrutiny over laws regulating public drinking in the state of Victoria and the Yarra City Council. This concluding section reflects on ways in which scrutiny processes can move from performing ‘bad’ habits to performing repair in ways that are more sensitive and sensitized to people who use alcohol and other drugs.

Perhaps the answer lies in theatrical performance that challenges legal performances’ habitual practices around human rights, for it is here that Sheikh finds ‘a dissenting site that does repair-work’ (2021a: 147). Indeed, theatrical performances can and have ‘challenged the law through prefiguring new worlds’ (145). However, one should also be cautious to claim that the theatrical can cure what the law lacks. Most particularly, applied theatre about alcohol and other drug use can often perpetuate habits of thinking about consumption as something that is inherently risky and should be reduced or prevented (Pelto and Singh 2010; Safer and Harding 1993; Quek et al. 2012), with some even regarding theatre, in rather problematic terms, as an ‘alternative substance in supporting problem drug and alcohol users on their journey to recovery’ (Zontou 2012: 304).

Perhaps the answer instead lies in more quotidian improvements to habits of scrutiny. It was suggested at the outset of this article that the performance of human rights scrutiny is subject to and predicated upon repetition: the same actors assessing the human rights compatibility of laws against the same criteria, but often with a view towards – and thus adjusting the response to reach – the same, repeated conclusion: that the law is compatible with human rights. However, Ruth Raynor argues that ‘habit is a mechanism whereby things endure but also a site and source of change’ (2017: 109).

This ritual might be changed through intervention from publics. It is noticeable that public submissions to the proposed local law in the Yarra City Council were able to challenge habits of thought around public drinking and the human rights of people who drink in public. By contrast, the Scrutiny of Acts and Regulations Committee in the Victorian Parliament rarely receives or considers public submissions and its performances of scrutiny nearly always occur behind closed doors. As Schechner argues, the power of performance comes from its ‘public and collaborative’ dimensions (cited in Madeira et al. 2022), and thus inviting the public to engage more with these performances of human rights scrutiny and collaborate in their outcomes – like modes of participatory theatre – could lead to outcomes that are more sensitized and therefore sensitive to people who use alcohol and other drugs. What is also essential is that bodies such as the Scrutiny of Acts and Regulations Committee be able to effectively intervene where there is a breach, such as was seen in the about-face by the Victorian Attorney-General. The enduring power of ritual lies in the cyclical structure Turner describes of breach, crisis, redress and reintegration, but to avoid bad habits becoming ritualized, the Committee should intervene more prominently where there has been a breach and not allow flimsy justifications to act as a mode of redress.

Finally, further analysis should attend to the performance of policing in relation to public drinking. Yarra City Council’s General (Consumption of Liquor in Public Places) Amendment Local Law 2021 contains provisions that the law ‘is not intended to criminalise social or economic disadvantage or chronic health issues, nor to create barriers to seeking or receiving support from appropriate health services’ (cl 9). Further research should examine how this and the Victorian ‘health-based approach’ to public drinking operate to reduce criminalizing of socio-economic disadvantage, particularly given criticism of such approaches. Research has begun to examine policing as performance (Anderson 2021; de Maillard and Savage 2018), and what we hope to have contributed is some insight into how performance theory can interrogate and challenge practices of the performance of human rights scrutiny.