The British did not take control of the Cook Islands until 1888 and in 1901 they were annexed by New Zealand. In 1965 the New Zealand Parliament passed the Cook Islands Constitution Act and gave the Cook Islands self-government founded upon its own written constitution. Today the Cook Islands have a Westminster Parliamentary system with democratic elections every five years. The Head of State is Her Majesty Queen Elizabeth II by Her representative in the Cook Islands. Legal System The legal system of the Cook Islands closely reflects that of New Zealand and most other English Common Law jurisdictions. There is a High Court and a Court of Appeal of the Cook Islands, which is presided over predominantly by current or former New Zealand High Court Judges. The ultimate appellate court is the Privy Council in London. (Please see below for a more detailed description of the development & workings of the Jurisdiction)
History of the Legal & Political Systems in the Cook Islands
The Cook Islands 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 an 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 Island 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 the establishment of the 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 the Resident Commissioner controlled these institutions.
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.
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 invested with a Head of State in common with New Zealand.
The Cook Islands Constitution Act 1964 also preserved responsibilities for New Zealand with regard to external affairs and defense.
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.