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Some justice for the people affected by Youpla/ACBF

21st Mar 2024

I wrote my last chapter on the Aboriginal Community Benefit Fund (ACBF) for the ALA in Precedent 178 (Sept/Oct 2023). Here is a quick recap (deep breath): the ACBF for decades masqueraded as an Aboriginal-owned organisation to deceive the First Nations community into signing up for their barely regulated funeral fund – and their membership numbers were boosted with Centrepay. After hundreds of complaints, ASIC court proceedings and a Royal Commission, ACBF collapsed and went into liquidation. The liquidators found that millions of dollars had been moved overseas into another company owned by some former directors.

First Nations advocates in the Save Sorry Business Coalition have been working with the federal government for two years to help the thousands of payers left with nothing. This article is a critical update.

Federal government has announced their enduring resolution

In February 2024, the government finally announced their enduring resolution: the ‘Youpla Support Program’ (YSP) for those who were impacted by the ACBF collapse. The government has promised to help those who were members of ACBF up until and after 1 August 2015 – this was the period when the government took action to stop ACBF’s Centrepay status.[1]

From 1 July 2024,[2] under the enduring resolution, the government will pay those eligible 60% of the premiums per policy they have paid up to the funeral benefit amount. Those eligible will have the option to choose whether to have these funds paid to a safe APRA-regulated funeral fund or to receive their money back, and be offered free financial counselling to help them make the decision.

This is not a full payment of what people have lost, but it is a critical amount that can help go towards paying for Sorry Business (traditional funeral rites and practices for First Nations peoples) and allow most of those impacted to receive a fair outcome after years of advocacy. We appreciate Ministers Burney and Jones working with First Nations advocates on designing this enduring resolution.

ASIC took ACBF to Court

ASIC originally commenced proceedings against ACBF for breaching ss12 DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) for making misrepresentations that they were Aboriginal owned when they were not, among other misrepresentations[3] during the relevant period of 2015–2018. After ACBF went into administration, ASIC sought leave from the Court to continue the proceedings in the public interest of holding ACBF accountable. ASIC filed evidence in support of their claim including Royal Commission interviews with a former director, ACBF marketing materials and consumer witness statements.

Justice Goodman at first instance concluded that ASIC could not prove ACBF was not Aboriginal owned.[4] In his reasons, Goodman J found that ASIC did not:[5]

1. Prove whether ACBF Group was an Aboriginal-owned company.
2. Identify the set of managers in the relevant period.
3. Prove that the managers were not Aboriginal people in accordance with Mabo v Queensland (no 2).

Essentially, ASIC was asked to prove a negative – whether a director was not Aboriginal, which is an unreasonably difficult test.

ASIC appealed the decision. For the Aboriginal community an appeal was important because of the public interest in seeking justice for the people affected by ACBF – roughly 10% of the First Nations population.

ASIC argued the original judge failed to consider the evidence including:

1. admissions from ACBF’s defence that they were not Aboriginal owned when they displayed a disclaimer to the consumer, and
2. when one of their former directors gave evidence.

The Full Court decided[6] that his Honour erred in his conclusion and failed to properly consider this critical evidence. The Full Court declared that ACBF did indeed breach ss12DA and 12DB of the ASIC Act by pretending to be Aboriginal owned.

The decision was well met by consumer advocates who have argued for decades that ACBF’s marketing gave First Nations consumers the dominant representation that they were trustworthy as an Aboriginal-owned organisation like the Aboriginal Medical Service when they were not. Many ACBF policy holders felt betrayed that an organisation could sell itself as Aboriginal when it was not.

ASIC is still taking on former directors

ASIC commenced proceedings against five of the former directors for breaching their directors’ duties under the Corporations Act 2001 (Cth), for maintaining insurance arrangements with Crown Insurance Services Ltd that were not in the best interests of ACBF members. The Crown Insurance directors Ron Pattenden and Jonathan Law stood to benefit. ASIC further alleged that insuring with Crown left the ACBF entities vulnerable to unaffordable premium increases and the members were unaware of the risks to the funds’ viability.

The matter is still in litigation, and it will be a while before there is an outcome. ASIC is pursuing penalties and bans for these directors, which are not as severe as prison. But it does help show that directors can still face the music even after they leave the theatre.

The ALA thanks Mark Holden for this article.

 

Mark Holden is a Dunghutti man working as the senior solicitor and policy officer at the Financial Rights Legal Centre’s Mob Strong Debt Help program. Mark believes all First Nations consumers must have the right to make decisions with free, prior and informed consent.

 

 

 

 

 

The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: First Nations Aboriginal Community Benefit Fund Youpla Support Program Mark Holden Enduring resolution