Making Rights and Realities: How Australian Human Rights Make Gender, Alcohol and Other Drugs

ABSTRACT

Australia is unique among Western nations in that it does not have a national bill of rights; in lieu, rights protections have proceeded in a piecemeal fashion, with some jurisdictions developing their own systems for rights protection. These systems involve parliaments ‘scrutinising’ proposed new laws for their compatibility with rights. These processes are sometimes theorised as constitutive, capable of bringing various material-discursive effects into being. For instance, whilst problems such as family and sexualised violence are said to pre-exist legislative and policy practices designed to combat them, alternative approaches can draw our attention to the way these phenomena are made in and through such processes themselves. Drawing on work from Moya Lloyd (“(Women’s) Human Rights: Paradoxes and Possibilities.” Review of International Studies 33 (1): 91–103) and Karen Zivi (Zivi, K. 2019. “Human Dignity and Human Rights: Lessons from the Fight for Marriage Equality in the United State”s.” In Critical Perspectives on Human Rights, edited by B. Schippers, 103–119. London: Rowman and Littlefield International, Zivi, K. 2012. Making Rights Claims: A Practice of Democratic Citizenship. Oxford: Oxford University Press.) on human rights as constituting norms, rules, conventions, and worlds, Law’s (Law, J. 2011. “Collateral Realities.” In The Politics of Knowledge, edited by F. Rubio, and P. Baert, 156–178. London: Routledge) work on collateral realities, and interviews (N = 30) conducted with key stakeholders involved in Australian rights scrutiny processes, we explore how articulations about human rights might shape connections between alcohol, other drugs, gender and social problems. Using a case-based approach, we focus on three accounts that generate relations between alcohol, drugs, gender, and bodies, and consider the possible implications for affected populations.

KEYWORDS:

• Human rights
• alcohol and other drugs
• gender
• Moya Lloyd
• Karen Zivi
• John Law
• Australia

Introduction

Australia is unique among Western democracies in that it does not have a national bill of rights. In lieu of a national bill of rights, protections for human rights have proceeded in a more piecemeal fashion, with individual states and territories – alongside the national parliament – devising their own systems for human rights protection. Of Australia’s eight states and territories, three have specific human rights laws (sometimes referred to as ‘charters’), and the national parliament has a narrower human rights scrutiny law. These laws offer a very specific – and limited – form of human rights protection. The main way in which human rights are protected is through a requirement, detailed in the laws, for parliament to scrutinise every proposed new law for its ‘human rights compatibility’. In essence, this parliamentary scrutiny process requires a member of parliament proposing a new law (or an amendment to an existing law) to, first, consider whether the law would ‘engage’ any human rights. The rights articulated include predominantly civil and political rights such as the right to privacy; the right to freedom of movement; the right to be protected from cruel, inhuman, or degrading treatment; and the right to life. If a proposal would ‘engage’ (i.e. potentially limit) one or more of these rights, a ‘scrutiny’ exercise is then undertaken. This involves rationalising the proposed limitations on rights, by showing that they would be for a ‘legitimate objective’, and that they are ‘necessary’, ‘reasonable’ and ‘proportionate’. This is often referred to as the ‘proportionality test’. As we explain in what follows, this is an important feature of how human rights assessments are done in Australia and will form a key part of the analysis we undertake in this article. In making such assessments, a document known as a ‘statement of compatibility’ is prepared, outlining which rights would be potentially engaged by the proposed law reforms, and advancing the rationale for any limitations of those rights. The statement of compatibility is presented to parliament and can be the subject of discussion and debate. Crucially, even if a proposed new law would limit human rights, it can still be passed. Courts have very limited powers to adjudicate on human rights matters under the state and territory charters, meaning that the parliamentary scrutiny process is the dominant method for assessing and protecting human rights in Australia.

This article is part of a larger project that aims to assess how alcohol and other drugs have been dealt with within these parliamentary human rights scrutiny processes. There is considerable interest – within and beyond Australia – in the intersections between human rights and drug policy. Some have argued, for instance, that human rights and drug policy have historically operated as ‘parallel universes’ (Hunt 2008) and that drug policy has been developed without appropriate recourse to human rights principles. Many activists and academics argue that drug policy needs urgent reforms, and that human rights provide a useful normative framework within which to undertake these reforms. The recently developed International Guidelines on Human Rights and Drug Policy recommend all countries undertake a ‘transparent review’ of drug laws and policies for their human rights compliance, and subject proposed new laws to human rights ‘assessment’ (World Health Organization, UNAIDS, UNDP and the International Centre on Human Rights and Drug Policy 2019). The guidelines explicitly link human rights violations against people who use drugs to poor health outcomes and identify several ways in which health outcomes can be improved through recourse to human rights principles. This includes the principle that all people have a right to health care without discrimination, including on the grounds of (a history of) drug use or dependence (World Health Organization, UNAIDS, UNDP and the International Centre on Human Rights and Drug Policy 2019). In some parts of the world, human rights law has undoubtedly played an important role in reducing drug overdose and other forms of harm associated with drugs. In Canada, for instance, human rights law has been leveraged in a series of landmark legal cases to secure rights, such as the right to access supervised injecting rooms and heroin assisted treatment, for a small number of people who use drugs (for a discussion, see: Seear 2020; Boyd, Murray, and MacDonald 2017). These measures are proven to save lives and greatly improve social, economic and health outcomes (Marshall et al. 2011). However, human rights do not always work this way. Seventy years after the Universal Declaration of Human Rights promised rights protections, millions worldwide still endure human rights abuses such as forced drug treatment and forced drug withdrawal (both arguably forms of torture) (Lines 2017). If human rights are an effective framework to prevent punitive approaches towards people who use drugs, why haven’t they prevented such practices up until now? This broader context and these questions form the basis for our interest in and research into the intersections between human rights and drug policy, including through the process of parliamentary human rights scrutiny in Australia.

This project has several stages, some of which we have reported elsewhere (e.g. Seear and Mulcahy 2022; Mulcahy and Seear 2022). In this article, we report findings from interviews that we conducted (N = 30) with people who are directly involved in the process of parliamentary human rights scrutiny in the four Australian jurisdictions that undertake it: the Commonwealth, the states of Victoria and Queensland, and the Australian Capital Territory. Our sample is comprised of parliamentarians, some current, some former (n = 18), and parliamentary advisors (n = 12). The starting point for our analysis is the idea, promoted by activists and academics, and borne out in the Canadian context, that human rights can shape the health of people who use alcohol and other drugs. Drawing on Moya Lloyd (2007) and Karen Zivi’s (2019, 2012) work on human rights as shaping and constituting norms, rules, conventions, and worlds, John Law’s (2011) work on collateral realities, and the interviews conducted with key stakeholders involved in parliamentary human rights scrutiny processes, we here explore how those responsible for human rights scrutiny describe the process, and how their deliberative processes might shape gender and social problems. We argue that deliberative processes have the capacity to bring various material-discursive effects into being, including effects adverse to health, and effects which generate other ‘collateral realities’ (following Law 2011), especially regarding gender. Our key aim here is to sensitise readers to the specificities of rights processes in Australia, and to carefully examine how the process of deliberating about and articulating human rights can help to constitute the very problems and phenomena such processes purport to be addressing. These include gendered problems such as family and sexual violence, sexual harassment, and other forms of public violence. Importantly, this article also explores how gender might come to be obscured through scrutiny processes in which rights claims are made and examines the possibility that such obscuration is a product of gendered legal concepts, categories, and tests. In exploring this possibility, our work builds on a larger body of feminist scholarship that raises concerns about human rights and their implications for women (e.g. Charlesworth 1994; Ilumoka 1994; Brown 1995; Scott 1996; Grewal 1999; Lloyd 2007; Braidotti 2019). Using a case-based approach (following Mol and Law 2002), we focus on three accounts of how scrutiny processes might approach relations between alcohol, drugs, gender, and bodies, and consider the potential deleterious effects of these enactments on affected populations.

Background and Theoretical Approach

In recent years, a body of critical alcohol and other scholarship has emerged. This work variously mobilises feminist and queer philosophies, and ideas from new materialism and Science and Technology Studies scholars including Judith Butler, Eve Sedgwick, Bruno Latour, Gilles Deleuze, Donna Haraway, Karen Barad, Annemarie Mol, John Law, and Kyle McGee. This work seeks to examine and trouble foundational assumptions in alcohol and other drug policy. A central guiding principle in drug policy and law is the notion that alcohol and other drug ‘effects’ and ‘harms’ are singular, stable, and predictable, emerging from the biological properties of drugs (see Fraser and Moore 2011). Purportedly predictable effects and harms of alcohol and other drugs include illness, injury, disease (such as the blood-borne virus hepatitis C), and (sometimes fatal) overdose. But critical alcohol and other drug scholarship tells us that these effects are unstable, unpredictable, complex, and multiple (Fraser and Moore 2011). They are the product of human and non-human forces or ‘assemblages’, and thus, politically, rather than naturally, produced (Fraser and Seear 2011). Much of this critical scholarship traces how logics about alcohol and other drug effects are enacted and sustained, as well as how they might be disrupted. Feminist work on repetition (e.g. Butler 1993, 1990) has been particularly influential within this space. Researchers have highlighted the importance of iterative practices and repetition in science, policy, and other contexts such as service provision to argue that, like gender, alcohol, and other drug ‘problems’ are made and sustained by the repetition of material-discursive processes (Fraser, Moore, and Keane 2014). Put another way, alcohol and other drug effects, harms, and other realities (such as ‘addiction’) are not inherent to substances themselves, but are instead shaped, produced and sustained by practices. Importantly, this work also reminds us that because realities are constituted through practices, realities can always be made anew.

The enactment and stabilisation of these realities and the logics that underpin can also be traced back to material-discursive practices in science, policy, service provision and alcohol and other drug scholarship itself (Fraser Forthcoming; Fraser, Moore, and Keane 2014). As the Science and Technology Studies (STS) scholar John Law once noted, we can find and study practices virtually anywhere: ‘wherever you look, whether this is a meeting hall, a talk, a laboratory or a survey, there is no escape from practice. It is practices all the way down, contested or otherwise’ (Law 2011, 171). Alcohol and other drug scholars have capitalised on this idea, looking at how practices in service provision, policy, drug education, alcohol and other drug counselling and elsewhere enact and sustain alcohol and other drug realities, and how such realities might be made differently (e.g. Dilkes-Frayne and Duff 2017; Farrugia 2017; Malins 2017; Fitzgerald 2015). With only a few exceptions, studies of the law and legal practices concerning alcohol and other drugs have been far less common (Flacks 2021, 2012; Bunn 2019; Seear 2020, 2017, 2015; Seear and Fraser 2016, 2014a, 2014b). Critical theoretical studies of human rights law and practices concerning alcohol and other drugs are very rare (Seear and Mulcahy 2022; Mulcahy and Seear 2022; Keane 2003). This is surprising given the central role the law plays in regulating both alcohol and other drugs. It is also surprising that there has been little integration of ideas from these various fields, especially because there is a nascent field of STS scholarship that explores how legal practices constitute realities (e.g. McGee 2018, 2015; Latour 2015, 2013, 2009). In this article, we seek to bridge these gaps, through an exploration of how human rights law practices might shape alcohol and other drug realities.

In earlier work, we examined how human rights deliberations pertaining to alcohol and other drugs have played out in Australian parliaments, through a detailed examination of parliamentary texts including statements of compatibility (Seear and Mulcahy 2022). In this article, we examine rights questions from a different angle; seeking to sensitise readers to how the minutiae of rights processes work, and what such processes can do, we talk to those who undertake such deliberations to learn more about their practice. In this article, we analyse how these stakeholders approach the process of rights deliberation and consider what deliberations of this kind might achieve. In focussing on practice and process, we are less concerned with what rights claims are, or on how specific deliberations have unfolded, than on what articulations about rights might do and make possible. In thinking about rights this way, we draw on ideas from Karen Zivi (2019, 2012) and Moya Lloyd (2007). Zivi has developed a performative theory of rights, and focuses on what the process of making claims about rights can achieve. Although Zivi’s approach to rights draws on Judith Butler’s work on gender and performativity (1993, 1990), her theory is not contingent on the repetition of rights claims. Instead, Zivi approaches rights utterances as potentially generative and interpellative, concerning herself with the ways in which we become certain kinds of subjects through bureaucratic, institutional, linguistic, and other material practices. In a similar vein, Moya Lloyd’s (2007, 92; original emphasis) work explores ‘the politics of human rights’, or ‘what human rights both make possible and what they disallow’, especially with regards to women. Like Zivi, Lloyd is interested in the effects that rights articulations, deliberations, and practices might have and how, precisely, these effects might be achieved. She argues that the generative potential of rights can only be understood through studying rights mechanisms in their local contexts. This approach is in turn influenced by Wendy Brown and Janet Halley’s (2002, 26) work, which sets out to understand:

how subjects are fabricated or positioned by [discourses], what powers they secure (and disguise or veil), what assumptions they naturalise, what privileges they fix, what norms they mobilise, and what or whom these norms exclude.

We bring together these ideas on what rights can do and make possible with ideas from the STS scholar John Law, and in particular his notion of ‘collateral realities’. Law defines collateral realities as:

realities that get done incidentally, and along the way. They are realities that get done, for the most part, unintentionally. They are realities that may be obnoxious. Importantly, they are realities that could be different. It follows that they are realities that are through and through political. (Law 2011, 156)

Law’s work on collateral realities has been applied to the study of alcohol and other drugs on several occasions (e.g. Duncan et al. 2022; Seear 2020; Seear 2015; Fraser, Moore, and Keane 2014). Importantly, much of this work has identified the way that certain practices produce gender as a collateral reality of alcohol and other drug policy, research, and law. For instance, in her analysis of a major Australian High Court case dealing with the sentencing of an Indigenous man who had killed his partner, Seear (2020) argues that the court’s focus on the purported effects of alcohol in Indigenous communities functions to foreclose considerations of gender in violence. Because that case focuses on the apparently important relationship between alcohol, race and violence in Australia post-colonisation, the realities of men’s violence against women is also obscured. Work on collateral realities is designed to bring our attention to the way that practices produce realities, including by omission and absence, and aims to bring these other or collateral realities to light. To our knowledge, work from Law has not yet been extended to the collateral realities produced in human rights law. As such, in the next sections, we combine Law’s insights on collateral realities with Zivi and Lloyd’s interests in what rights processes can do and make possible. In so doing, we want to interrogate two interrelated normative conceptions of health and the body relating to alcohol and other drugs. The first is the assumption that alcohol and other drugs have ‘natural’, singular, predictable, and ‘inevitable’ effects on health and the body. The second is that these effects pre-exist parliamentary human rights scrutiny processes, such that these processes simply apply pre-existing knowledge about the assumed effects of alcohol and other drugs in their scrutiny of legislation. In what follows, we instead argue that the effects of alcohol and other drugs can be made in and through human rights scrutiny processes. Importantly, we argue that these effects are also gendered in important ways.

Method

The analysis in this article draws on data that we collected for a major project exploring the intersections between human rights and drug policy. There are several stages to the project, including one stage in which we conducted 30 qualitative, semi-structured interviews with key stakeholders who are involved in human rights parliamentary processes, including former and current members of parliament and others such as parliamentary advisors. We interviewed a range of key stakeholders form the four jurisdictions with parliamentary human rights scrutiny processes. The breakdown of participants was as follows: Australian Capital Territory (N = 8), Commonwealth (N = 8), Queensland (N = 6) and Victoria (N = 8). We interviewed slightly fewer participants in Queensland because their parliamentary human rights scrutiny regime is relatively new (commencing only in 2020). In these interviews, we asked participants to describe how the parliamentary human rights scrutiny processes work – including how they would explain it to laypeople, how the rights of people who use alcohol and other drugs might ordinarily be engaged, and how (and whether) rights limitations could be justified. We asked them to both reflect on how rights deliberations had proceeded in the past, and to explain how they might approach rights deliberations regarding alcohol and other drugs in the future. On occasion this led to our interviewees speculating about how rights deliberations might proceed in relation to current policy concerns and debates, generating insights into how rights practices may be implicated in the production of realities. Interview data were transcribed verbatim by a professional transcriber, after which they were checked and de-identified. Both authors read the transcripts, developed a coding framework, then double coded the interviews. To protect the identity of the participants we have assigned pseudonyms and redacted other biographical details that might typically be included in studies of this kind given that we were interviewing well-known public figures who might be easily identifiable if precise information about their geographical location, personal background or political membership were revealed. Our university ethics committee approved the research (La Trobe University HEC21083).

In our analysis of the interview data, we use case study approach, drawing on Mol and Law’s (2002) argument that the utility of ‘cases’ rests in their capacity to sensitise us to previously obscure events, situations, and possibilities (Fraser and Seear 2011). The case study approach does not purport to make claims about generalisability or representativeness, but each case is ‘instructive beyond its specific site and situation’ (Mol and Law 2002, 15). This approach has been used in several other studies exploring alcohol and other drugs (e.g. Fraser et al. Forthcoming; Farrugia et al. 2022). Our goal in this approach is to offer new insights into how the utterances of our interviewees forge connections between human rights, alcohol and other drugs, gender, and bodies. The three cases presented for analysis were chosen because they comprise some of the most detailed and contemplative accounts of alcohol, other drugs, and rights and because they sensitise us to how relations between substances, human rights, gender, and violence are understood and enacted. All three cases highlight the tensions and challenges associated with assessing the associations between alcohol, other drugs, human rights, bodies, and violence, and all three cases offer important insights into the place of gender in these rights claims and deliberations. These cases offer valuable lessons into the way scrutiny processes might constitute gender, bodies, and violence as realities of alcohol and other drug use.

Analysis

It is important to acknowledge that many of the participants we interviewed spontaneously offered comments on the quality of parliamentary human rights scrutiny processes and the seriousness with which those involved took them. We explore these issues in more depth elsewhere (Seear and Mulcahy 2022) but note here that several of our participants described the scrutiny process as either inadequate or something that is not taken very seriously by parliamentarians and parliamentary staffers. It was routinely described as a mere ‘tick and flick’ (George, parliamentarian) or ‘tick in the box exercise’ (Helen, parliamentarian). Another participant observed that the process was highly politicised, in the sense that:

Everything is essentially decided before you get there, and the three sitting days on any given sitting week, it’s all about the performance of it. It’s not about scrutiny, it’s not about debate, it’s pure performative politics. (Michael, parliamentarian; our emphasis)

Here, Michael’s assertion (that parliamentary human rights scrutiny is purely performative) appears to be intended to operate as a critique of the process – as mere theatre, with no real rigour, substance, benefits, or effects (one of the pejorative connotations often associated with theatre vis-à-vis law: Peters 2008). Of course, from the perspective of performativity theory, these references also signal the various potential ontological effects and constitutive functions of human rights deliberations, claims, utterances, and debates, regardless of their apparent ‘rigour’. Taking these ideas further, we now turn to our three case studies.

Fabian

Our first case study involves Fabian, a parliamentarian. Fabian described himself as having had a long interest in alcohol and other drugs, which began during his professional career, before he was elected to parliament. We asked Fabian to tell us about how alcohol and other drugs might come up in legislation before the parliament. He explained that there was a ‘growing trend’ in home delivery of alcohol since the lockdowns associated with the coronavirus pandemic and that this had led to regulatory reform. Fabian jokingly observed that some people might have (or claim to have) a ‘right to be delivered alcohol’. He was interested in whether and how home delivery of alcohol could be regulated, and what the implications of any regulation might be on human rights. Reflecting on whether access to alcohol should be constrained, and how this could be justified, Fabian explained that in his mind, it was a question of safety. As he put it:

there’s a right to protection basically, and I think delivering alcohol to kids is straight out harmful. It’s not protection. The other thing is there’s a strong family violence angle and the availability of, you know, increasing the availability of alcohol for people who have been drinking, to be able to ring up and order more, is not conducive to functional family life and to calm and it puts women who are experiencing family violence at greater risk. So, there’s a recent [opinion piece] in [a major newspaper] by a victim-survivor of family violence talking about […] when the alcohol delivery, the tipple company arrives, that she and the kids would hide. And by a certain time, they would feel the need to call the police or do whatever they had to do.

Explaining these concerns further, Fabian noted that:

The way I think of it is that alcohol is not so much the cause but more of an accelerant or, you know, an amplifier of [family violence]. [In my pre-parliamentary career] it was not uncommon to smell alcohol on the breaths of people who’d come in as a result of family violence. In fact, it’s quite common to smell alcohol on the breath of people who are victims of all sorts of crimes. Alcohol just reduces people’s ability to run, hide or otherwise […], and […] it made them more violent. We would often see both sides of, you know, people. So, I see it as quite dangerous in that context.

Here, Fabian imagines the human rights aspects of alcohol and other drug use through the lens of private, family life. Whether alcohol should be regulated, and whether the rights of those who use it should be limited in some ways, depends on alcohol’s effects on the sanctity of family life in general and on women and children in particular. He constitutes alcohol as being a key driver of family violence, in two respects. First, when consumed by perpetrators, alcohol seemingly accelerates, or fuels family violence. In this context, alcohol is constituted as having specific empowering or enabling effects. Second, when consumed by victims, alcohol seemingly stultifies bodies and senses, limiting the ability of victims to evade their attackers. Alcohol is, in this second context, constituted as having specific disempowering and constraining effects. Of course, this is an internally inconsistent approach to the ‘effects’ of alcohol: one in which alcohol renders perpetrators powerful and active, while rendering victims powerless and passive. The alcohol acts differently according to different actors, but the framing here perpetuates always negative associations with substance use and its effects on people’s behaviour. This framing of how alcohol ‘acts’ on and through victims and perpetrators distributes responsibility for violence in ways that are politically and ethically questionable. We also see here the way in which the association of alcohol with violence is itself able to be made through the rights deliberation process. In Zivi’s terms, rights deliberations and utterances constitute worlds and selves; in this case, they support an association between alcohol and family violence and constitute violence as a phenomenon for which multiple subjects (including victims) might be responsible due to their consumption of alcohol.

Importantly, although Fabian acknowledges ‘women and children’ as victims of family violence, he refers to a generic cohort of ‘people’ as the perpetrators of such violence. Men, who comprise the largest cohort of family violence perpetrators, are never mentioned explicitly in Fabian’s account. This move – from gendered language for victims to gender-neutral language for perpetrators – has the effect of obscuring who is doing the violence. Both victims and perpetrators are brought into being but only victims bear any features of significance. Importantly, when combined with repeated references to the action or agency of alcohol, it also has the effect of positioning alcohol as the principal driver of violence, and obscuring other forces, such as masculinities, that might play a role. Later in our interview, Fabian depicts alcohol as active and agentive, explaining that ‘I think the research is very clear that if you increase the availability of alcohol, you increase the damage alcohol does.’ Men and masculinities are an important collateral reality of this account, rendered conspicuous by their absence. As other researchers have pointed out, alcohol consumption is also linked to performances of masculinity (Wilkinson and Wilkinson forthcoming). Yet, in this account, masculinities are elided in favour of a framing of alcohol as the sole actor capable of generating harm; other properties are promptly ignored.

Fabian was not alone in describing the action or agency of alcohol and other drugs in this way; most our interviewees overlooked the role of masculinities in violence. Thus, even when violence was regarded as a major public health or public policy concern by our interviewees, their accounts of how it worked and could be managed was limited, frequently, by a failure to think through the relevance of gender. These omissions, in turn, could have important material-discursive effects if such a deliberation were to unfold in connection with legislation before the parliament. Where decision makers imagine problems as gender-neutral, fuelled by substances, or both, gender-neutral policy and legal solutions appear to be the solution. It may seem more appropriate, in other words, to focus on limiting access to alcohol, restricting home delivery, or regulating liquor licences and trading hours. It may seem less appropriate to focus on men and masculinities, address gender norms and stereotypes, or explore other measures that might intervene in the scale and nature of gendered violence. In neglecting these gendered dimensions, important opportunities to intervene in social problems such as violence might be missed, a process that arguably helps to sustain those problems.

Christopher

Our second case study comes from an interview we conducted with Christopher, a parliamentarian. We asked him to reflect on the intersections between human rights, alcohol, and other drugs. For Christopher, this recalled a debate about legislation pertaining to when people could enter and leave licenced premises (colloquially referred to as lockout laws): legislation that was itself concerned with managing what he called ‘alcohol-fuelled violence’. As he put it, ‘to me, alcohol is a drug. So, I don’t draw a distinction there in my mind’. As Christopher explained, the legislation proposing restrictions to entry and exit of licensed premises raised human rights concerns, because it engaged the right to freedom of movement. This was, in his mind, ‘a big one and, you know, imposing restrictions on a group of people which may not be imposed on another group’. We asked Christopher if he was here gesturing towards another right, being the right to equality. Importantly, the right to equality prohibits discrimination based on factors such as sex, race, and sexuality. Acknowledging that the legislation could potentially limit the right to equality, Christopher then emphasised other factors, including, ‘for example, if the club was not in a safe night precinct but outside it, you couldn’t go’. Christopher noted that ‘according to the government’, restrictions of this kind were typically justifiable. His own thinking about these issues was slightly different, however:

In my mind, I’m sort of – the debate is out because I know that the stats, which I hate, actually have proven that there’s been less serious assaults and loss of life as a result of [lockouts] – and, you know, when you look at that, again young people, you know, the tragic stories about some of that alcohol-fuelled violence is enough to motivate you to say that, you know, perhaps that was something that was necessary. I mean it’s always hard – for me, it’s always hard to put that in compartments […] Because to me the fact that, you know, one young – you know, we’re talking people in the demographic of that, you know, 18 or 17–25 – you know, with the one-punch kill stuff. And some of the evidence that came from the surgeons was that on Monday morning, their charts would be filled with fixing broken jaws out of assaults at nightclubs and on the street rather than, you know.

Although Christopher felt these safety considerations were important, he went on to explain that other factors might result in him opposing the legislation. Most notably:

I guess, you know, going back to the freedom of movement and, you know, peoples’ rights to make decisions for themselves. I mean it’s a real conflict and debate that I have.

These comments raise several issues regarding human rights and alcohol and other drugs. First, whereas Fabian raises concerns about the domestic sphere, Christopher’s account takes us into public settings where violence unfolds. Yet, like Fabian, Christopher views human rights concerning alcohol and other drugs through the lens of alcohol-related violence. Christopher is concerned that alcohol fuels violence, creates unsafety, and can lead to serious injury or even death. His account – prompted by the requirements of human rights law – leads him to form connections between substances, rights, and bodies, positioning alcohol as a major risk factor to public health and safety in night-time economy contexts. As we have written elsewhere, infringements of the rights of people who use alcohol and other drugs are often justified on the amorphous ground of community safety (Seear and Mulcahy 2022). Second, and in Moya Lloyd’s (2007) sense, Christopher’s utterances once again bring victims and perpetrators into being. These subjects are referred to only as ‘a group of people’ whose rights might be impacted on by ‘another group’. Those whose rights might be curtailed by lockout laws are ‘young people’ who might be affected by violence, and ‘people’ who are within the ‘demographic of […] 18 or 17–25’. In referring to ‘the one-punch kill stuff’, Christopher appears to be gesturing towards a series of highly publicised fatalities involving young men in Australia, one of which led to major reforms to the criminal law in New South Wales (Lancaster et al. 2012). But no other details of the victims and perpetrators are mentioned. Third, Christopher’s account also signals concerns about geographical location and equal access to public space. Christopher appears to be mourning what Olivia Barr (2017, 81) describes, in her work on violence perpetrated in public spaces, ‘a loss of lawful place’. But do some experience this loss differently, and why? These laws and the concomitant public debate surrounding them, fuelled by CCTV footage of brawls on pavements outside nightclubs, position night-time public spaces as places of inherent violence. This ignores the role of masculinity in creating these sites of violence and has a disproportionately unequal effect on access to public space. Here, we are thinking about the world-making capacity of rights (Zivi 2012) and the way that deliberations about can position alcohol, alongside violence, as an omnipresent possibility in certain night-time spaces, but where all other potential forces, such as gender, have been evacuated. Christopher appears to conceptualise those who might be at risk of such violence as a singular, undifferentiated entity. There is no consideration of either gender or the potential role, once again, of masculinities in such violence.

There may be several explanations for the approach here, including the ubiquity of discourse about alcohol’s putative agency in the night-time economy, an idea that has been highly influential in Australian research, policy, and law (Moore et al. 2021). This research has shown that gender is rarely identified as potentially relevant in the context of legal and policy responses to violence in the night-time economy, even where data show that most violence is perpetrated by men. Importantly, however, Christopher’s assessment might also reveal something important about the limitations of parliamentary human rights scrutiny processes. As we have explained elsewhere (Seear and Mulcahy 2022), human rights scrutiny processes require that measures not be ‘arbitrary’. This appears, at least in some contexts, to ‘encourage [legal and policy] measures that would encompass everyone, on the basis that more targeted or selective approaches would be too arbitrary, or insufficiently neutral’ (Seear and Mulcahy 2022, 271). Put simply, when undertaking rights deliberations, some might consider it ‘arbitrary’ for laws to do anything other than result in blanket, population-level measures designed to address the forces at play in social problems such as violence. In Zivi and Lloyd’s terms, human rights scrutiny processes may make gender-neutrality not only possible but inevitable. This possibility is explored most fully in our third and final case study, to which we now turn.

Bianca

Our third case study concerns Bianca, a parliamentary advisor. When asked to reflect on the intersections between human rights, alcohol and other drugs, Bianca turned to a recent, highly publicised debate about violence against women in Australian society, including within the Australian parliament itself. The catalyst for this debate was multifaceted, and included: the naming of victim-survivor Grace Tame as Australian of the Year following her public campaign to address child sexual abuse and other forms of sexual violence (Allman 2021); allegations by former parliamentary staffer Brittany Higgins that a colleague had raped her within the parliament building (Maiden 2021); allegations by other staffers, including Rachelle Miller, of bullying and harassment, including sexual harassment, in parliament (Davis 2022); and the publication of a report into parliamentary culture more broadly, documenting numerous instances of sexual harassment, sexual assault and bullying (Australian Human Rights Commission 2021). As Bianca pointed out, some people had argued, in the aftermath of these allegations, that there should be mandatory alcohol and other drug testing of parliamentarians and their staffers (a proposal that had been previously mooted and dismissed in the state of Victoria). As she explained, however, a system of mandatory alcohol and other drug testing within the workplace would raise several human rights concerns, including the:

right to a private life and also right to personal security, which means that you can’t physically take a blood sample. A breathalyser might be different, but anything invasive like a blood sample would be hard to justify […] You would have to show, I guess, that there was either an occupational health and safety problem […] So, if we had a rape allegation, we had strong evidence of sexual harassment, then I think there is an arguable case about having a breathalyser at Parliament House. Again, it’s all contextual and it would go to that issue of a broader health issue. The health of the parliamentarians themselves, the health of the other staffers which might be subject to danger, either sexual or physical, if drinking or drugs was considered a health problem there or another sort of problem, and then the democratic issue, that is, if parliament’s democratic institutions are being compromised because of the drunkenness or drug taking or the sexual harassment, then again that context will provide justification for that. I would draw the line, though, at something more invasive like a blood sample.

We asked Bianca whether gender might be at all relevant to her deliberations. Taking us inside the process by which these issues were explored, Bianca explained that:

it would depend on how it’s promulgated in the first place in the bill. If gender wasn’t included and it was just, say, ‘This is a breathalyser test for everyone and it’s because of public drunkenness’, and I came along to scrutinise it, I would say, ‘Okay, is it necessary?’ And I’d look at the explanatory notes and the statement of compatibility, and they would say, ‘This is necessary because of public drunkenness and occupational health and safety issues.’ And I’d say, ‘Okay, this is necessary.’ They have detail about, you know, ‘someone was taken to hospital, blah de blah’. You know, ‘over the period of 6 months, seven parliamentarians didn’t make a vote because they were drunk’. So, I’d need quite specific things and I’d say that’s a tick, it’s necessary. Is it reasonable? Yes, given the nature of parliamentary, the special nature of Parliament House, that’s reasonable. Now we get to proportionality. There again, because the bill has just been justified as an occupational health and safety issue more generally, I wouldn’t necessarily bring a gendered lens to that because I would stick to what has been seen as the reason it’s necessary, and so I say, yes, this is proportionate because: the special nature of Parliament House, the sanctity of it, the fact that parliamentarians are not normal employees, they’re representative of their electorate, and because of that, they need to be held to a high standard and we’re not going to be able to have a functioning democracy without this breathalyser […] I would say, well, obviously this is necessary because of the sexual harassment. This bill is purportedly only trying to deal with the occupational health and safety issue, but that’s because it’s the only way it’s going to get through parliament. No one’s going to vote for this, particularly the men who are doing this, they won’t vote for something which is targeting them as the cause of this thing, but if I can speak in my personal capacity, I think this is justifiable, not just for [occupational health and safety], but because of the gender issue. So, can you see how it just depends on how the political strategy is played out in the Bill? (emphasis added)

Here, Bianca emphasises the important, formative power of politics in parliamentary human rights scrutiny processes, helping shed light on how, in her view, deliberative processes typically unfold. She argues that the framing of legislation is often highly strategic, informed by political considerations. In her view, it is unlikely that a proposal for mandatory testing would be framed as a response to men’s violence and harassment, because men would be less likely to vote for legislation that targets them, or identifies the role of masculinities in such problems, presumably on the grounds that it would impinge their right to equality. Framing this more generally, as an ‘occupational health and safety concern’, would increase the likelihood of such legislation passing but would also lead the parliamentary human rights scrutiny process in a different direction, foreclosing a focus on gender (despite the possibility that a putatively equal measure might disproportionately effect women and those do not adhere to masculine norms, limiting their right to equality). That said, Bianca sees the value of a law that regulates consumption regardless of gender, based on the idea, identified in Fabian’s account, that the consumption of both victims and perpetrators may contribute to harms. As she explained:

I don’t know if I would say it’s disproportionate against women because, in fact – and this is a very, if you like, paternalistic approach to gender – but one argument could be, well, it’s not just the perpetrator’s drinking, it’s the victims that are drinking as well. And not that it’s blaming the victims for drinking, but again the power differential being as it is, males are using drink to inebriate the women to such an extent that they can’t consent. So, if that makes sense, I guess, that would be just that the blanket drug test or alcohol testing would be justifiable because it’s aimed not merely at the men being drunken, it is actually the men using alcohol to take away the ability of the women to consent to the sexual act.

Unlike Fabian and Christopher, Bianca explicitly identifies the role of gender in these contexts, claiming that some men deliberately set out to inebriate women in order to vitiate consent, and so that they might then assault them. Despite this, Bianca concludes that ‘blanket’ approaches are preferable, because of the possibility that alcohol and other drugs are being used – albeit by different subjects, for ostensibly different purposes – in ways that might generate or exacerbate harm. Here, Bianca’s account helps sensitise us to some of the tensions within human rights scrutiny processes. Explaining how the focus on ‘arbitrariness’ in rights contexts works, Bianca clarifies that she would object to legislation that targeted only men: ‘The more an Act is targeted [towards men or women], the more concerning it would be from a rule of law perspective because laws have to be, as much as possible, general in nature.’ In other words, Bianca sees human rights scrutiny processes as playing a formative role in rendering legislation incapable of isolating gender because human rights and the rule of law demand a generic target or subject. Insofar as alcohol and other drugs are not an agent with rights (contra the discussion of a right to alcohol above), and insofar as alcohol and other drugs are understood to be a conduit or mechanism for harm, these emerge as a more suitable target for intervention than men or men’s behaviour. That is, human rights mechanisms may support the regulation of alcohol and other drug consumption, and not men or men’s behaviour per se.

In its demand that proposed laws be oriented toward a general target, such as alcohol and other drugs, rather than a specific, gendered target such as men, deliberative rights processes can produce gender-neutrality as a collateral reality. All alcohol and other drug consumption is singled out, regardless of the gender of the consumer, and rendered potentially dangerous and a legitimate entry point for rights violations. Other forces that play a potential role in social problems such as sexual harassment and sexual violence, most obviously gender, come to be sidelined. In other words, or at least according to Bianca’s account, even where gender is recognised as an organising force in social problems, parliamentary human rights scrutiny processes do not appear capable of being sensitised to the complexities of gendered harms: they see rights only through the prism of the individual (which is normatively white, heterosexual, able-bodied and male) and yet seemingly ignore the ways in which legislation might impact the rights of some individuals (most especially women and those that do not adhere to various norms including masculine norms). This may also stem from the failure of human rights to properly recognise violence against women as a human rights issue more broadly (Bartlett, Fitz-Gibbon, and Walklate 2021), particularly when such violence is perpetrated within the home, historically viewed as a ‘private’ domain that should be protected from legal intervention (Ackerly and Okin 1999). The preoccupation with individual rights within systems of parliamentary human rights scrutiny is capable, in this sense, of perversely resulting in a kind of collective distribution of harm, whereby all are at fault even if there are great differentials according to gender. It is not lost on us that the powerful ‘testamentary performances’ (Watt 2016) of women, speaking to harm suffered at the hands of abusive men both publicly and privately, have led to proposed policies that would police their behaviour under the guise of protection, whilst simultaneously ignoring the gendered dimensions of these harms. This is despite a recent report into parliamentary culture identifying the predominantly male make-up of the Australian parliament as a causative factor in sexual harassment therein (Australian Human Rights Commission 2021). It remains to be seen whether the recent increase in women entering the Australian parliament after the most recent national election will reshape parliamentary culture, attitudes towards human rights, and understandings of (and responses to) social problems of the kind contemplated here. It is also important to note that the Australian parliament has been willing – at least once in the recent past – to override rights and develop highly targeted alcohol policies to address consumption and violence in specific communities. We are thinking here of the hugely controversial, much-publicised ‘Intervention’ in the Northern Territory, which sought to regulate alcohol consumption by Indigenous people under the guise of protection and prevention of family violence and sexual abuse (for a discussion, see Scott and Heiss 2016). The Intervention raises important questions about how rights are considered in gendered and racialised contexts of consumption and violence, how ‘arbitrariness’ is interpreted within the context of intersectionality, and whether whiteness is produced as a collateral reality. It is unfortunately beyond the scope of this article to examine all these issues here, given our focus on gender. We acknowledge that rights processes might generate other collateral realities including realities pertaining to sexuality, class, and disability. We suggest that more work is needed on these questions and aim to explore some of this in our future work.

Conclusion

In this article, we have explored how alcohol and other drugs issues might be considered in human rights scrutiny processes in parliaments, arguing that parliamentary human rights scrutiny can generate important relations between alcohol, other drugs and violence. Importantly, these potential relations are also gendered in certain ways: most particularly, parliamentary human rights scrutiny processes have the capacity to render alcohol and other drug effects as seemingly gender-neutral despite research suggesting that masculinity, alongside place and other factors, is entwined with alcohol and other drug usage and the harms that alcohol and other drug regulation seek to address. For our interviewees, alcohol and other drug consumption – rather than, say, specific masculinities – is intrinsically linked with danger, and therefore should necessarily be regulated. Careful analysis of the accounts of people who undertake human rights assessments helps sensitise us to how, exactly, the association of alcohol and other drugs with violence and other harms is enabled in parliamentary human rights scrutiny processes: in scrutinising legislation, parliamentary actors are encouraged to form connections between problems and solutions. Our interviewees typically drew connections between alcohol, drugs, and violence (and simultaneously ignored connections between gender, space, and violence). These connections led to them claiming that the restriction of various rights is essential in order to protect public safety. This, however, ignores the role of masculinities in creating sites of violence, leading to putatively equal treatment of all people in the same space at the same time that has a disproportionate or unequal effect on some (most particularly women and those that do not adhere to masculine norms) accessing those spaces. This can occur despite women and other marginalised people drawing attention to masculine violence – often through powerful moments of testament and rebellion. The response to these accounts is nearly always to impose gender-neutral responses that target actants such as alcohol and drug consumption rather than doing the work to interrogate and dismantle the masculinist culture and actors through which violence occurs.

What might a form of parliamentary human rights scrutiny that is more sensitive to considerations of gender and social problems look like? In many respects the answer to this question depends on whether it is possible to make change from within parliamentary human rights processes and mechanisms themselves, or whether it is necessary to move beyond human rights. In other work (Authors, under review), we have argued that it is important to explore ways of ‘challenging, disrupting and interrogating the way that connections are made and sustained in human rights scrutiny processes, and by insisting on new and different connections or associations.’ Applied to the present context, this requires challenging the way that parliamentarians and advisors might conceptualise the links between alcohol and other drugs and social problems and encouraging a greater and more explicit focus on gender. It also demands closer scrutiny of the way those connections are made and sustained, including through reliance on academic research (Moore, Keane, and Duncan 2020), which itself may necessitate the production of new research that attends more specifically to gender. It is also important to recognise the considerable challenge posed by existing approaches to the proportionality test in parliamentary human rights scrutiny. Our interviewees appear to interpret and apply the test in ways that foreclose a sensitisation towards gender, favouring seemingly ‘gender-neutral’, ‘less arbitrary’, and less targeted measures. In our view, parliamentarians, researchers and human rights scholars need to grapple with the potential limitations of the proportionality test, its unintended consequences and collateral effects; the test, at least in terms of how some currently understand and apply it in the context of parliamentary human rights scrutiny, is steeped in normatively masculine ideals, and appears to support the elision of the disproportionate impact of some legislation on certain segments of the population (such as women, people of diverse gender identities, sexual orientations and sex characteristics and others who do not adhere to dominant masculine norms). It may even exacerbate social problems, by perpetuating a strong focus on alcohol and other drugs to the exclusion of other factors and forces, such as gender, that urgently require attention.

Acknowledgments

The authors wish to acknowledge the interviewees who gave so generously of their time to this project, and members of the project advisory board, who have helped guide this research. This article emerges from a research project on human rights and drug policy, funded by the Australian Research Council (FT200100099).

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Australian Research Council [grant number FT200100099].