First published in The Australian

Views about the place and role of Aborigines in the national consciousness are not just philosophical or psychological; they translate into differences in legal status and resource allocation. The nature of native title and the way in which it has been demonised and weakened since it was first recognised in the Mabo case highlights how so-called "special laws" for Aboriginal and Torres Strait Islander people can provide less protection.

The reason Aborigines and their rights are so vulnerable to the whims of the legislature stems from assumptions within our founding legal document, the Australian Constitution, drafted in the Australian colonies and enacted by Queen Victoria in 1900.

This year is the 40th anniversary of the 1967 referendum that amended the Constitution. It is a moment to celebrate that this country, sceptical of constitutional change and founded on institutional racism, voted by an overwhelming majority to include Aborigines in the census and to empower the federal government to make laws on their behalf. It is a moment to celebrate the people's movement that built through decades to make that historic change.

But it is also time for deep reflection. Forty years later, despite that grassroots call for equality, we still see Aboriginal communities living in conditions far below those of other Australians. We must ask ourselves: why hasn't the constitutional change, and the resources and attention provided since, brought equality to indigenous people?

One of the defining characteristics of our legal system - as Aborigines know all too well - is its faith in the benevolence of government. The founding fathers of our Constitution agreed that the decision-making about rights protections, which ones we recognise and the extent to which we protect them, were matters for parliament. They discussed including these rights in the Constitution but rejected the idea and our founding document is still silent on human rights. When we look at the intentions and attitudes of the men who drafted our Constitution, it's no surprise that it offers no protection against racial discrimination today.

But the key problem is what is missing from the Constitution, more than any legacy of prejudice embedded in its seemingly neutral text. Our founding document leaves indigenous people vulnerable by relegating the most fundamental question of how we value and protect rights to the legislature.

Though people often think the 1967 referendum gave Aborigines citizenship rights, or the right to vote, it didn't. We already had those. The 1967 referendum did two things: it enabled indigenous people to be included in the census and it gave federal parliament the power to make laws in relation to indigenous people.

In her biography of Faith Bandler, Faith Bandler, Gentle Activist, Marilyn Lake explains something of the aims of the campaigners for this constitutional change. Supporters saw including indigenous people in the census not just as a body-counting exercise but as a nation-building exercise. Their vision was of a symbolic coming together into an imagined, inclusive community that could transcend an "us and them" mentality. Their arguments for giving the federal government power to make laws in relation to Aborigines, rather than leaving it to each state, reveal a belief that the commonwealth would use the power to protect indigenous people.

This has not been the case. Look at policies such as taking Aboriginal children from their families or removing heritage protections to preserve Aboriginal culture, or extinguishing native title.

The failure to protect rights and the false reliance on government benevolence has had a heavy impact on Aborigines. In 1997, the High Court considered for the first time the legality of the policy of child removal in the case of Kruger v the Commonwealth. The plaintiffs argued that the effect of the relevant Northern Territory ordinance violated human rights, including the implied rights to due process before the law, equality before the law, freedom of movement and the express right to freedom of religion contained in section 116 of the Constitution. That they lost on each count was a dramatic demonstration of Australians' lack of rights protection and of the disproportionate impact on indigenous people.

But the Kruger case does serve to show how the harm of child removal, as a particularly indigenous experience and legal issue, connect to what we hold as fundamental: the right to due process before the law, equality before the law, freedom of movement and freedom of religion. It is a chilling demonstration of how few of the rights we assume as inherent are guaranteed us.

The hopes for social justice that inspired them, and united such a large proportion of the Australian electorate in 1967, did not translate into federal action to create the necessary mechanisms. Neither has the added federal government power always been used to benefit indigenous people.

Indeed, the federal government's power has instead been employed as a barrier to effective policy-making, with key areas of government responsibility shared with the states, and the now self-governing NT and ACT.

Instead of co-operating for success, the two levels of government more often than not blame each other for failure.

A recent example is the response prompted by negative media coverage of findings of the high incidence of sexual assault in some communities and gang violence in others. Federal Families, Community Services and Indigenous Affairs Minister Mal Brough blamed the NT Government for not putting police into communities where violence was endemic. While he was absolutely correct that any community of 2500 people with no police force would have law and order issues, it was a simplistic response focused only on blame (and cost) shifting.

Many other factors contribute to the cyclical poverty and despondency within some Aboriginal communities that create, through decades, the environment in which the social fabric unravels and violence, sexual abuse, substance abuse and other anti-social behaviour become rife. Just as unhelpful was the response of NT Chief Minister Clare Martin in asserting that the cause was the federal Government's failure to provide adequate housing, and health and education services.

Both were, of course, correct. Governments, federal, state and territory, all continue to under-fund the most basic Aboriginal community needs such as health services, educational facilities and adequate housing.

The 40th anniversary of this historic referendum is a time to reflect on what it has really achieved and how much further we still have to go to achieve social justice for Aborigines; otherwise, we fail to learn the lessons of that extraordinary campaign. Facing the facts so we can meet our own challenges today is the way we can truly honour those ordinary, everyday Australians across the country who changed our Constitution in 1967.

Larissa Behrendt is professor of law and director of research at the Jumbunna Indigenous House of Learning, University of Technology, Sydney. This is one of a series of essays commissioned by Reconciliation Australia to mark the anniversary of the 1967 referendum.