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Introduction to Law and Government in the Cook Islands

The Cook Island's involvement with the English legal system began with the declaration of the southern group islands as a British Protectorate in 1898. Three years later all the islands of the present Cook Islands were formally annexed by New Zealand by extending the geographic boundaries of New Zealand to include the Cook Islands. Thus the Cook Islands became part of New Zealand.

The first Cook Islands Act as enactment of the New Zealand Parliament to provide for the administration of the Cook Islands was passed in 1901. Then in 1915 what was essentially a Code for the Cook Islands was passed with the Cook Islands Act 1915. Much of that Act still remains in force in the Cook Islands today.

The Cook Islands Act 1915 provided for a Resident Commissioner in the Cook Islands appointed by a Cabinet Minister in New Zealand who was known initially as the Minister for the Cook Islands. Subsequently this cabinet position evolved into the Minister of Island Territories with the Department of Islands Territories as the administering authority.

The Cook Islands Act 1915 established a High Court and a Native Land Court; and also declared that the common law of England as at 14 January 1840 (being the year in which the colony of New Zealand was established) applied in the Cook Islands except where inconsistent with the Cook Islands Act 1915 and "inapplicable to the circumstances" of the Islands.

A number of New Zealand statutes were declared to be part of the law of the Cook Islands; for example, Copyright Act 1913, Mercantile Law Act 1908, Partnership Act 1908. Furthermore the Cook Islands Act 1915 provided that any amendment to those Acts, or any regulations etc. made pursuant to those Acts, automatically applied in the Cook Islands.

The process to representative government began with a Legislative Council in 1946 with a minority of elected members. Then followed a Legislative Assembly in 1957; its powers being significantly extended in 1962. Essentially however these institutions were controlled by the Resident Commissioner.

Self-government came to the Cook Islands in 1965 with the adoption of a written constitution which was enacted as a statute of the New Zealand Parliament, the Cook Islands Constitution Act 1964. This Constitution provided for a completely autonomous and independent Legislative Assembly elected by secret ballot under a system of universal suffrage. No law making powers were reserved to New Zealand; other than by the technical request and consent procedure.

The Constitution preserved existing law, but no further enactments of New Zealand have any effect in the Cook Islands without specific application by the Cook Islands Legislative Assembly.

An enactment of the Cook Islands Legislative Assembly in 1966 - the New Zealand Laws Act 1966 - clarified the application of New Zealand laws then existing as part of the laws of the Cook Islands. This provided that where there was a reference in the New Zealand law to an institution or Cabinet Minister or official, in the Cook Islands that reference was to be taken to the corresponding institution or Cabinet Minister or official in the Cook Islands. Thus the Post Office Act 1959 of the New Zealand Parliament which applies in the Cook Islands by virtue of section 636 of the Cook Islands Act 1915 is taken as if it were an enactment of the Cook Islands Legislative Assembly establishing the Cook Islands own Post Office, Postmaster-General, etc. The Cook Islands Post Office is not part to the New Zealand Post Office.

In the first few years of self-government, to try keep up with changes to New Zealand enactments, which applied in the Cook Islands, the Cook Islands Legislative Assembly enacted an annual "New Zealand Laws Act" which simply contained a Schedule of the short titles to the New Zealand amending enactments. That short-cut procedure effectively deprived the Legislative Assembly of much of the opportunity to debate the amendments, and was abandoned by the early 1970's. The alternative was of course to pass the various amending enactments as complete enactments of the Legislative Assembly. The logistics of coping with this proved too great, apart from any policy considerations and today many New Zealand Acts apply in the Cook Islands without the more recent amendments to those Acts which apply in New Zealand. (This state of affairs can prove fruitful to the resourceful lawyer in the Cook Islands who cares to keep abreast of change that occur in New Zealand after loopholes are discovered.)

In addition to establishing the Cook Islands Legislative Assembly, the Constitution of 1965 declared Her Majesty the Queen in right of New Zealand as the Head of State of the Cook Islands and vested in Her the executive authority of the Cook Islands. A Cabinet of Ministers presided over by the Premier was established to advise Her Majesty on the discharge of Her functions in the Cook Islands. Thus the Cook Islands was established with a common head of State with New Zealand.

The Cook Islands Constitution Act 1964 also preserved responsibilities for New Zealand with regard to external affairs and defence. It is not the scope of this paper to embark upon the meaning and effect of this provision but it should be noted that there has been considerable debate as to whether "responsibilities" connotes mere "obligations" or whether it establishes "rights".

The Cook Islands Constitution Act 1964 also preserved for "Cook Islanders" their New Zealand Citizenship by providing that nothing in the 1964 Act or the Constitution should affect the status of any New Zealand citizen under the British Nationality and New Zealand Citizenship Act 1948. It is important to note that the continuation of such citizenship is a matter solely for the New Zealand Parliament.

The constitution of the Cook Islands provides for its amendment by an Act with a two-thirds majority and 90 days between second and third readings. the Head of State provision cannot be altered without a two thirds majority in a referendum.

There have been 11 Amendments to the Constitution enacted in the Cook Islands. The most significant of these is the Constitution Amendment (No.9) Act 1980-81. This Amendment reflected the evolving status of the Cook Islands. The Legislative Assembly was altered to Parliament; the Premier to Prime Minister; a High Court was established with three divisions: Civil, Criminal and Land. The Cook Islands Court of Appeal was established (abandoning the previous system of the New Zealand High Court sitting as the Court Islands Appellate Court) and appeals to the Privy Council were also established. Incidentally, the composition of the Court of Appeal must include a present or former Judge of the Court of Appeal of New Zealand.

The Constitution Amendment No.9 also introduced a form of Bill of Rights with the declaration that certain fundamental human rights and freedoms exist in the Cook Islands.

The Cook Islands Parliament thus has the sole law making authority for the Cook Islands. Although New Zealand continues to be a major source of reference for new enactments for the Cook Islands, increasingly the legislators and draftsmen have looked further afield for policies and precedents considered to be more applicable to Cook Islands conditions.

Off-Shore Financial Centre and Tax Haven
The recently established off-shore financial centre and tax haven regime in the Cook Islands is an example where the Cook Islands has drawn from the legislation of a number of coutries and provided a little of its own ingenuity.

 
     

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