Cook Islands - Sources of Law

COOK ISLANDS

INTRODUCTION

by Professor Don Paterson

Cook Islands were first brought under European control in 1888, when they were proclaimed a British protectorate under the administrative control of the British High Commissioner of the Western Pacific, then stationed in Fiji. In 1901 they were annexed to the British colony of New Zealand and thenceforward were subject to the law making power of the New Zealand Parliament. However there was no general application of New Zealand laws, only specific statutes and subsidiary legislation were applied.

Consequently the laws of the Cook Islands before the country acquired self-governance in 1965, comprised:

• Queen's Regulations - made by the British High Commissioner of the Western Pacific 1888-1900, until they were repealed in 1915 (s. 658 Cook Islands Act 1915 (NZ));

• Acts of the New Zealand Parliament - extended to Cook Islands by Cook Islands Act 1915 e.g. Infants Act 1908 (NZ) or applied to Cook Islands by their own terms e.g. Official Secrets Act 1951 (NZ);

• Ordinances - made by the Cook Islands Island Councils with the assent of the Resident Commissioner, 1901-1946; and Ordinances made by the Cook Islands Legislative Council, later called the Legislative Assembly, which replaced the Island Councils, with the assent of the Resident Commissioner 1947-1965;

• Acts of the British Parliament - which were in force in England on 14 January 1840 and in force in New Zealand on 1 April 1916, except so far as inconsistent with Cook Islands Act 1915 (NZ) or inapplicable to the circumstances of the country (s. 615 Cook Islands Act 1915 (NZ));

• Acts of the British Parliament specifically applied to Cook Islands by New Zealand Acts of Parliament - e.g. Wills Amendment Act 1852 (UK) applied by s. 640 Cook Islands Act 1915 (NZ);

• Subsidiary legislation - made under the above legislation or applied to Cook Islands;

• English common law and equity - except so far as inconsistent with Cook Islands Act 1915 (NZ) or inapplicable to the circumstances of the country (s. 615 Cook Islands Act 1915 (NZ));

• Custom - for the purpose of ascertaining rights to customary land and titles (ss. 421, 422, 426 Cook Islands Act 1915 (NZ));

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When the Cook Islands attained self-governance (i.e. internal autonomy, but subject to New Zealand control of defence and external affairs) on 4 August 1965, a Constitution was enacted by the New Zealand Parliament which authorised the Cook Islands Legislative Assembly, called after 1981 the Cook Islands Parliament, to enact laws for the Cook Islands. The laws in existence in the country were continued except so far as inconsistent with the Constitution ( Art 77 Constitution ). The New Zealand Parliament maintained power to enact laws for the Cook Islands at the request, and with the consent, of the Cook Islands Government until 1981, ( Art 46 Constitution ) and the Parliament of the Cook Islands adopted a number of New Zealand Acts of Parliament. After 1981 however the power of the New Zealand Parliament to legislate for Cook Islands was abolished by a Constitutional amendment, and the Cook Islands Parliament ceased to enact laws to adopt New Zealand laws.

Consequently the laws of Cook Islands after self-governance comprise:

• Constitution of the Cook Islands - the supreme law;

• Acts of the Cook Islands Legislative Assembly and, from 1981, the Parliament of the Cook Islands made with the consent of the New Zealand High Commissioner, and, from 1982, of the Queen's Representative;

• Ordinances - in force in the Cook Islands immediately before 4 August 1965, until repealed by Parliament ( Art 77 Constitution);

• Acts of the Parliament of New Zealand - extended to Cook Islands by Cook Islands Act 1915;

- applied to Cook Islands by their own terms;

- adopted by New Zealand Laws Acts enacted by the Legislative Assembly of Cook Islands in 1966, 1967, 1968, 1969, 1970, 1973 and 1979;

• Acts of the British Parliament - which were in force in New Zealand on 1 April 1916 , except so far as inconsistent with Cook Islands Act 1915 (N.Z.) or inapplicable to the circumstances of the country, and until repealed by Parliament ( s.615 Cook Islands Act 1915 (N.Z.); Art. 77 Constitution);

• English common law and equity - except so far as inconsistent with the Cook Islands Act 1915 (NZ) or inappropriate to the circumstances of the country or inconsistent with the Constitution (s. 615 Cook Islands Act 1915 (NZ); Art. 77 Constitution);

• Custom - for the purpose of ascertaining the right to customary land and titles (ss. 421, 422, 426 Cook Islands Act 1915 (NZ); Art. 77 Constitution).

© 1999 Professor Don Paterson, USP.

For more information on this topic see Introduction to South Pacific Law (1999) Cavendish
- by J. Corrin Care, T. Newton & D. Paterson
Available from all good legal book shops, at  Stop Press in Vanuatu or by ordering from Cavendish.