Making and breaking ‘bad’ habits in drugs, law, and human rights scrutiny

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.