Four Ways of Explaining Indigenous Imprisonment in Australia
Every society explains its prisons to itself. The explanations are rarely offered as theories. They arrive as stories, told in courtrooms and newsrooms, at kitchen tables and in online comment threads, and they do quiet work: they tell us who is in the cells, why they are there, and whether we should feel troubled by it. In Australia the question that most demands a story is a stark one. Aboriginal and Torres Strait Islander people make up a small share of the national population, yet they fill a vastly disproportionate share of the nation’s police cells, watch houses and prisons. Why? The answer a person gives depends largely on which story they have absorbed, and each of the stories on offer is, in its way, true. The trouble lies in what each one allows us to stop asking.
This essay considers four such stories. The first is the carceral story, which locates the explanation entirely in the individual who offends. The second is the story of deprivation, which locates it in the accumulated disadvantage that Indigenous people and communities carry. The third is the story of institutional bias, which turns the lens on the justice system itself. The fourth, more unsettling than the others, asks whether the whole apparatus of crime and punishment is better understood as one side of a relationship begun in 1788. Understanding why Indigenous imprisonment persists requires holding all of them in view, and recognising where the comfort of each begins to shade into evasion.
The Carceral Story
Human beings are drawn to narrative, and in particular to the three-act structure that gives a sequence of events its shape: a set-up, a confrontation, a resolution. Popular culture is saturated with it. A farm boy on a desert planet is drawn into a quest, confronts an empire’s superweapon and destroys it, and the pattern is so satisfying that it is repeated across film after film. The carceral story has the same architecture, and its three acts never vary. First comes the crime. Second come the arrest and the court. Third comes the punishment, and for the most serious or persistent offenders, the prison.
What distinguishes this story is how tightly it frames its field of view. It looks at the person who commits the offence and at the person who serves the sentence, and it looks at nothing else. The criminal law, in this telling, applies to everybody equally. Every citizen is responsible for knowing the law and obeying it. The prohibitions at the heart of the criminal code are not arbitrary inventions of the modern state but rules as old as organised society: one may not kill or assault another person, and one may not steal or destroy another’s property. Someone who breaks these rules deliberately or recklessly deserves to answer for it, and imprisonment is the way a community answers the gravest and most repeated breaches. On this account a person can avoid prison altogether by the simple expedient of not committing crimes.
Anyone who spends time in a magistrates court will hear this story told, as will anyone who reads the opinion columns of a tabloid or scrolls through the comments beneath a news item, or who raises the subject with a friend, a relative or a stranger on a train. It is also the story judges tell. In a plea hearing in a Katherine courtroom, the presiding judge returned again and again to the idea that the young man before the court had arrived there, and was about to be sentenced to imprisonment, because of his own choices. The refrain was not hypocritical or cruel. It was simply the language the law speaks.
The carceral story is the most widely repeated account in criminal justice for a good reason, which is that it is true. Setting aside the genuine and troubling problem of wrongful arrest and conviction, the most reliable way for any individual to avoid prison is to refrain from breaking the law. The story is not a lie. Its weakness is that it presents a true fragment as the whole.
What the Numbers Seem to Say
If the carceral story is right, then the simplest explanation for Indigenous over-representation follows at once: Aboriginal and Torres Strait Islander people must be committing more serious crimes, and committing them more often. The official statistics appear at first to bear this out. Among Indigenous prisoners, roughly a third are imprisoned for acts intended to cause injury. About fourteen per cent are there for burglary, around nine per cent for robbery, another nine per cent for sexual assault, and a little over five per cent for homicide. Taken together, these figures mean that well over seven in every ten Aboriginal prisoners are behind bars for an act of serious violence or an unlawful entry into someone’s home. Had they not done the crime, they would not be doing the time. The same maxim can be extended to other offence categories, from drug offences to breaches of bail.
To halt the inquiry at this point is to accept two propositions, and both deserve to be stated plainly so that they can be examined. The first is that there is no better, more effective or more humane way of responding to the harmful conduct of individuals than to confine them. The second is that the devastation imprisonment inflicts on the families and communities of those confined is a regrettable but unavoidable by-product, a form of excusable collateral damage.
The propositions look much less secure when set against what imprisonment actually involves. Is it sensible to respond to one person’s violence by locking people in cells that bear the stains of blood and vomit? By depriving them not only of their liberty but of adequate health care, sanitation and education? By maintaining practices that are known to hasten death, and sometimes to cause it? Those who accept the two propositions are, for the most part, people who have never had to face the life-and-death realities of imprisonment and heavy policing, or the opaque and often disappointing promises of the justice and coronial systems that are meant to account for deaths in custody. Distance from the consequences makes the carceral story easy to believe.
What Social Science Can Predict
A second difficulty with the carceral story emerges from the work of social scientists. They have learned to predict, with striking accuracy, how likely it is that people will break the law. These predictions do not operate at the level of the individual. Nobody can say with certainty whether a particular person will commit a particular offence; the science-fiction premise of foreseeing crimes before they happen remains fiction. But at the level of whole populations, which is the level statisticians work at, a clear pattern appears. Certain characteristics and experiences reliably raise or lower the chance that someone will commit a serious offence.
Four factors do most of the explanatory work: failing to complete high school, using drugs, suffering abuse or neglect at the hands of parents, and being unemployed. There are many other recognised risk factors, among them having previously been to prison and being caught up in family violence as an offender, a victim, or both, yet nearly all of these can ultimately be traced back to the four principal ones. Being male is a further factor and a powerful one, since men are far more likely than women to commit crimes of serious violence.
This body of knowledge sits awkwardly beside the simple story told in courtrooms. If offending were purely a matter of free and independent choice, one would expect offending to be spread evenly across the population, regardless of background and circumstance. Statistics would show the daughters of wealthy Sydney suburbs offending at the same rate as the sons of the town camps of Darwin. They plainly do not. Something other than individual choice is operating, and the interesting question becomes what that something is and how it helps to explain the extraordinary rates at which Indigenous Australians are imprisoned. Researchers and policymakers continue to argue about the answer, and much of that argument has circled around the largest recent national inquiry into the subject.
The Story of Deprivation
That inquiry was conducted by the Australian Law Reform Commission, beginning in October 2016 under the leadership of Justice Matthew Myers, the first Aboriginal judge appointed to the Federal Court. When Myers reported at the end of 2017, his conclusions echoed those of earlier investigations stretching back to the Royal Commission into Aboriginal Deaths in Custody, which examined the subject from 1987 and reported in 1991. The common thread was history. Between 1910 and 1972 Aboriginal families were broken apart by policies of child removal, which at their cruellest were designed to breed out Aboriginal colour. Those policies were layered upon the longer harms of invasion, colonisation and dispossession. Formal legal discrimination against Aboriginal people did not end until 1972, and it ended only after nearly two centuries of terror and violence.
The survivors of that history, and their descendants, inherited what the Jiman and Bundjalung woman and trauma researcher Judy Atkinson has called transgenerational trauma. Its effects are visible in nearly every statistical measure of disadvantage: early departure from school, unemployment, poor and overcrowded housing, homelessness, ill health, mental illness, cognitive impairment, alcohol and drug dependence, child abuse and neglect, and the removal of children from their parents by child protection authorities. Aboriginal people are heavily over-represented in every one of these categories. And these are the very conditions that the criminological research connects to offending, to victimisation and to imprisonment. If Aboriginal people live disproportionately within the conditions that produce crime, the story concludes, it is no mystery that they are disproportionately imprisoned.
This is the deprivation story, sometimes called the deficit story, and like the carceral story it is true. It also has the merit of widening the frame. It refuses to see the individual offender as a creature without a past and recognises that circumstances shape conduct. Some researchers stop here, and argue that the remedy lies in tackling the deprivations one by one. Give Aboriginal parents better support and teach them parenting skills. Keep children in school as long as other children. Fix the housing. Improve diet and lifestyle. Reduce drinking during pregnancy. Support good health. Help people participate and compete in labour and capital markets. Do these things, the argument runs, and the incarceration rate will take care of itself.
What is striking about this account is the role it assigns to the justice system, which is none at all. Governments, police, courts and prisons are cast as neutral institutions that receive the disadvantaged, among them many Aboriginal people, and process them as well as they can. The system can no more prevent an Aboriginal person from being locked up than an oncologist can prevent a patient from developing a tumour; it simply responds to what arrives.
The Limits of the Deprivation Story
There are two serious problems with stopping here. The first is practical and moral. To rest in the deprivation story is to accept that imprisonment, and everything that accompanies it, will remain a reality for a high proportion of First Nations people, families and communities until such time as they can be hauled up into the middle class. That is a grimly patronising position, and a deeply lazy one, because it sets aside the lived experience of people who are suffering now. The remedies it recommends are slow, generational and uncertain. John Maynard Keynes’s famous remark about the long run, that in the long run we are all dead, has a particular sting when the people waiting are the ones whose children are being taken, whose relatives are dying in custody, and whose communities are being emptied of their young.
The second problem is analytical. By treating the justice system as a passive recipient, the deprivation story neglects a body of evidence that points in the opposite direction, and that stretches back to the royal commission itself. The commissioners did not deny that many Aboriginal people had committed serious offences. Their finding was that most Aboriginal people were being locked up for minor matters: public drunkenness, offensive behaviour, unpaid fines. That finding suggests that imprisonment was driven not only by the gravity of what Aboriginal people did, but by what the institutions chose to do about it. A story that begins and ends with the circumstances of the people arriving at the prison gate is missing everything that happens to them on the way there.
The Story of Institutional Bias
The Royal Commission’s inquiries revealed a pattern of decisions, taken at nearly every stage of the criminal process, that fell harder on Aboriginal people than on others. Police regularly exercised their discretion against Aboriginal people. Where a white person might have been given a summons or a caution, an Aboriginal person was arrested and placed in a cell. Bail laws that demanded a financial surety discriminated in practice, since many Aboriginal people simply did not have the money, and so remained on remand in circumstances where a person with means would have been released to await trial.
The failures extended beyond the police station and the bail hearing. Corrections departments had often neglected to build community-based alternatives to custody, especially in regional and remote parts of the country. Magistrates in those places frequently faced a stark choice between prison and nothing, so that people who might have remained in their communities under supervision were sent away because no supervised option existed. Aboriginal legal services, meanwhile, were not adequately funded to meet the demand for in-court representation, which meant that large numbers of Aboriginal defendants faced the court without a lawyer at all.
Taken together, these findings suggested a bias that ran through the institutions of criminal justice. This is the third story, the story of institutional bias. It does not contradict the story of deprivation, and its adherents often accept much of it. What they reject is the idea that the system is neutral. On their account bias is an amplifier. Aboriginal people arrive at the system already carrying the burdens of disadvantage, and the system then magnifies the odds that those burdens will end in a cell. Disadvantage supplies the raw material, and institutional practice multiplies it.
The point is a subtle one, and worth stating carefully. The institutional story does not require that individual police officers, magistrates or corrections officials be consciously prejudiced, although some may be. Bias of this kind can reside in rules and routines: in a bail law that assumes access to cash, in a funding formula that starves legal services, in a patrol practice that concentrates attention on certain streets and certain people. Each decision may appear defensible when viewed in isolation. The cumulative result is a system that processes Aboriginal people more harshly than their conduct alone would explain.
The Dispute Over Bias
After the Royal Commission reported, a dispute arose between those who saw institutional bias as a major contributing factor in Aboriginal incarceration and those who dismissed it as a kind of red herring, a distraction from the deeper causes that bring Aboriginal people into contact with the law in the first place. The disagreement is more than academic, because in practical terms it is a quarrel about where governments should direct their efforts. How much scarce public money should go towards retraining police, building community-based offender programs in regional areas, reforming bail laws and adequately funding Aboriginal Legal Services, when every dollar so spent is a dollar not spent on addressing Aboriginal disadvantage? Those who see bias as central will answer one way, those who see deprivation as the engine will answer another, and both will point to evidence. The question of priorities is real, but it rests on an assumption worth noticing: that the choice lies between mending the system and mending the people who pass through it.
The Fourth Story
There is a fourth story, which holds that none of the others goes anywhere near far enough. It is not satisfied by the three-act narrative of crime, court and cell, nor by the account of deprivation, nor by the account of institutional bias, because each of them takes the existing arrangements of Australian society as the fixed background against which the problem appears. The fourth story contends that the background is the problem. On this view the most truthful explanation is that Aboriginal and Torres Strait Islander peoples and their communities have been locked since 1788 in a one-sided and continuing relationship with settler Australia and its governments, a relationship whose terms have changed far less than its vocabulary would suggest.
If that is right, the criminal justice system is neither a neutral machine that occasionally malfunctions nor an otherwise sound institution infected by prejudice. It is one of the instruments of the relationship itself. The critique goes further, and suggests that the entire system of crime and punishment is designed to keep punishing Indigenous people unless and until they adopt the cultural norms of the settler middle class. Seen this way, the deprivations catalogued in the second story are not simply unfortunate circumstances awaiting a remedy but the lasting products of that relationship, and the biases of the third story are exactly what one would expect from institutions built by and for one party to it. Reform that leaves the terms of the relationship untouched may improve the margins, but it will never reach the centre.
The fourth story is the most demanding of the four, because no program or budget line can answer it. It raises questions of sovereignty, consent and the kind of settlement that might one day replace a relationship founded on dispossession. Critics respond that it offers little guidance for the next budget cycle, and that an Aboriginal family facing a sentencing hearing next month cannot wait for a political settlement. Its defenders reply that without it, the other stories will keep producing the same disappointing results.
Holding the Stories Together
It would be tempting to treat the four stories as rivals and to ask which of them is correct. That is the wrong question, because each captures something real and each, taken alone, misleads. The carceral story is right that individuals commit offences, some of which cause terrible harm, including to Aboriginal victims, who are themselves over-represented among those hurt by violence. The deprivation story is right that conduct has causes, bound up with a history of dispossession and family destruction. The institutional story is right that the justice system is an actor, whose discretion and design choices help to decide who goes to custody and for how long. The fourth story is right that all of these may be symptoms of something older and larger than any one of them.
Where the stories fail is at their edges. The carceral story fails when it pretends that the individual stands alone, severed from history and circumstance, and when it treats the suffering produced by prison as a price someone else should pay. The deprivation story fails when it excuses the institutions from any share of responsibility and defers justice to an indefinite future. The institutional story must reckon with the genuine dispute over how much of the over-representation bias can actually explain. The fourth story must reckon with the charge that it leaves little to do on Monday morning. An honest account acknowledges these weaknesses rather than settling them by assertion.
What the stories share is an invitation to look in different places: at the offender, at the community and its history, at the police, courts and prisons, and finally at the relationship between peoples within which all of these sit. Each carries its own implications. Taking offending seriously means investing in prevention and in the safety of victims. Taking disadvantage seriously means sustained commitment to housing, health, education and the repair of families. Taking bias seriously means reforming bail, expanding diversion and community-based sentencing, funding Aboriginal legal services adequately, and scrutinising police discretion. Taking the fourth story seriously means asking whether these measures, however necessary, can ever be enough while the underlying terms of the relationship stay as they are. The stories we tell are not harmless. They decide what we think is reasonable to ask of whom, and what we are prepared to accept as the cost of a justice system that, for one group of Australians, delivers far more punishment than protection. Choosing better stories, and acting on them, is where any serious reform has to begin.
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Bakchos is the founder of Blak and Black, an Australian media and advocacy platform established in 2010. Bakchos writes from the intersecting perspectives of Wiradjuri heritage, Jewish identity, and humanism.
© Bakchos, November 2026
