Blak-cladding: ACBF cops $3.5 million fine for misrepresenting it was Aboriginal-owned

SBS Australia

3 days ago

The Federal Court has ordered a company that misrepresented itself as being Aboriginal-owned pay a $3.5 million penalty.
ACBF Funeral Plans Pty Ltd (also known as Youpla) was exposed during the 2018 banking royal commission for using predatory sales practices in Indigenous communities.
The $3.5 million penalty handed down to ACBF on Thursday comes in addition to the $1.2 million penalty ordered in September 2023 over another misrepresentation that consumers would receive a lump sum payment when this was not the case. This brings the total penalties ordered against ACBF to $4.7 million. First Nations advocates from the Save Sorry Business Coalition welcomed the $3.5 million penalty imposed on ABCF, pointing to the court finding that the company misled the community about their business being Aboriginal-owned by using Aboriginal imagery on their contracts, clothing, ads and business cards.
Save Sorry Business Co-ordinator Bettina Cooper said they welcomed the substantial penalty for a company falsely representing it was Aboriginal-owned and that the Australian Securities and Investments Commission (ASIC) has shown other businesses that it will take action against this conduct.
'This penalty doesn't help the thousands of people who were deceived into thinking they were buying a funeral plan from an Aboriginal-owned business," she said. "But it very clearly warns other businesses that, if you claim or imply you are a First Nations business in order to make money and advantage of community and you are not, you will be held to account." ASIC chair Joe Longo said the penalty is a strong deterrent to anyone who tries to mislead Aboriginal consumers by falsely claiming Aboriginal ownership or management.
"It is one of ASIC's enduring priorities to tackle misconduct targeting First Nations people and our work in this case shows exactly why," he said.
But ASIC is not to enforce either penalty without leave of the Court because ACBF is in liquidation. In handing down his decision, Justice Scott Goodman agreed with ASIC's submission that the making of the representation that ACBF was Aboriginal-owned or managed when it was not was deliberate and callous and involved egregious conduct. The penalty decision comes after ASIC's successful appeal to the full Federal Court, overturning part of an earlier Federal Court decision in relation to ACBF and Youpla Group Pty Ltd (Youpla), handed down on February 29, 2024.
ACBF, a wholly owned subsidiary of Youpla, offered, promoted and sold the Aboriginal Community Funeral Plan, a funeral expenses insurance policy, primarily to Aboriginal consumers.
ACBF customers who purchased the funeral plan paid fortnightly premiums so that their nominees, such as their family members, would be covered for funeral related expenses up to a selected benefit amount. Youpla Group (then ACBF Group Holdings Pty Ltd) was the subject of a case study in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. In October 2020, ASIC commenced proceedings against ACBF. But in March and April 2022, ACBF and Youpla both went into liquidation.
ASIC sought leave to continue the proceedings due to the importance of general deterrence in relation to the defendants' conduct.
In September 2023, the Federal Court found that ACBF misrepresented to plan holders that they would receive a lump sum payment of their chosen benefit amount, when in fact they would only be reimbursed for funeral related expenses up to the benefit amount upon production of proof that those expenses had been incurred. The court ordered a $1.2 million penalty against ACBF. But the Federal Court found that ASIC had not made out its case in relation to the other alleged misrepresentations, including that they had falsely claimed they were Aboriginal-owned.
In February 2024, the full Federal Court upheld ASIC's appeal, finding that ACBF had also misrepresented to Aboriginal consumers that it was Aboriginal-owned or managed when that was not the case.
Ms Cooper thanked ASIC for appealing the decision regarding misrepresenting Aboriginal ownership. "Government agencies should continue to identify and take action against black-cladding, so legitimate First Nations owned organisations are able to flourish and support their community," she said. For 30 years, the Aboriginal Community Benefit Fund (ACBF), trading as Youpla, aggressively sold poor-value funeral plans to Aboriginal and Torres Strait Islander people across Australia, frequently taking premiums directly out of Centrelink payments through Centrepay. The Save Sorry Business Coalition is a First Nations-led campaign seeking fair resolution for First Nations people harmed by the misleading and deceptive conduct of Youpla and the failure of government and regulators over two decades. The Federal Government's Youpla Support Program began on July 1, 2024, to support people affected by the collapse of ACBF/Youpla.
Policy holders eligible for a payment would receive either 60 per cent of all the payments they made, or the benefit amount on the ACBF certificate, whichever is lower.
"The Save Sorry Business Campaigns commends the government for this program but notes that many of the estimated 14,000 people who suffered a loss may not be eligible under the program because their involvement was so long ago, nor will many people fully recover their losses in full," the Save Sorry Business Coalition said. ASIC has also taken penalty proceedings in the Federal Court against former directors of ACBF and Youpla Ronald Joseph Pattenden, Jonathan Law, Bryn Elwyn Jones and former officers Michael Brendan Wilson and Geoffrey Peter Clayton for breaches of their duties.
The court has listed the matter for trial to begin on February 9, 2026.