The Appeal Court has confirmed what advocates have long alleged – that dodgy funeral insurance provider the Aboriginal Community Benefits Fund (ACBF) had no Aboriginal ownership.
The company, also known as Youpla, has been found to have misrepresented themselves to consumers in selling their products.
A formal acknowledgement of the harm caused
The court overturned an earlier ruling that said there was insufficient evidence provided by the corporate regulator, the Australian Securities and Investments Commission (ASIC), on the matter of whether the company had any Aboriginal ownership between 2015 and 2018.
"ASIC brought this case in 2020 after consulting with First Nations advocate groups and because of the harm that we believed the ACBF and Youpla business had caused to Aboriginal peoples," ASIC deputy chair Sarah Court says.
Youpla has been found to have engaged in numerous misleading and deceptive sales practices
"Today's decision provides some formal acknowledgment of that harm and will be a deterrent to anyone who tries to mislead Aboriginal consumers about whether a business is Aboriginal owned or managed," she adds.
Youpla has been found to have engaged in numerous misleading and deceptive sales practices by the Australian Financial Complaints Authority. The company went into liquidation in March 2022, leaving thousands of First Nations policy holders stranded with no way to pay for their funerals.
The federal government last month announced an ongoing scheme for over 13,000 policy holders to receive some of their money back.
ASIC has also commenced separate civil proceedings against director Ron Pattendon and four other former directors of Youpla/ACBF for breaches of their duties, a case which is ongoing.
"We hope this decision will deter other businesses"
Mark Holden, Dunghutti man and Aboriginal senior solicitor at Mob Strong Debt Help says the Appeal Court decision is vindication for what advocates have been arguing for decades, that ACBF engaged in "systemic deception" of their customers.
"The ACBF decision sets an important precedent on misrepresentation of First Nations ownership or 'black-cladding'," he says.
"In the future we will be able to identify and take action against black-cladding so legitimate First Nations-owned organisations are able to flourish and support their community. We hope that this decision will deter other businesses," Holden adds.
The trial judge will determine the penalty at a later date.
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