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COOK ISLANDS COUNTRY REPORT

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COOK ISLANDS COUNTRY REPORT Powered By Docstoc
					27th meeting of the PACIFIC ISLANDS LAW
     OFFICERS’ NETWORK (PILON)




        CLO staff at the taking of Oath of Office of the Solicitor General,
                                 Tingika Elikana.
  20th October 2008 at the residence of the Queen’s Representative, Rarotonga.



  COOK ISLANDS COUNTRY REPORT
        FOR 2008 PILON AGM
     5-10 December 2008, Vanuatu

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                   COOK ISLANDS COUNTRY REPORT
                        FOR 2008 PILON AGM


For general information on the Cook Islands economic and legal framework please refer
to the Schedule, from page 5.


   1.) CROWN LAW OFFICE (CLO).             TE AKINANGA O TE TURE
The principal function of is the Crown Law Office is to advise the Government of the
Cook Islands on legal matters that may be referred to it by the Prime Minister, Cabinet,
the Ombudsman, Ministers, departments and statutory bodies pursuant to the Crown Law
Office Act 1980.
The Attorney-General is the Minister responsible for the Crown Law Office.
All prosecutions are coordinated by the Crown Law Office under the direction of the
Solicitor- General.
 CLO represents the Government in litigation, developing legislation and prosecuting
offences. CLO is taking on a more direct role in serious criminal prosecutions and
developing closer relations with the prosecution division of the Police Department.

       CLO IN 2008

          The former Solicitor General, Mr. Michael Mitchell, was appointed as
           Secretary of Foreign Affairs and Immigration.
          Former Deputy Solicitor General, Mr. Tingika Elikana, was appointed the
           new Solicitor General.
          Crown Counsel, Mr. Ngatokorua Ngatokorua, moved to the Ombudsman’s
           Office, who is former Solicitor General, Ms. Janet Maki.
          Mrs. Kim Saunders, a former criminal law prosecutor with the New Zealand
           Crown Law Office commenced a 2 year contract with the Crown Law Office.

          Other professional staff are Senior Crown Counsel, Mr. Paul Lynch, and
           Crown Counsel, Ms. Martha Henry.

          CLO has contracted a senior criminal legal counsel, Mike Ruffin, of Meredith
           Connell, of Auckland to lead the complicated High Court prosecution- Q-v-
           Vaile. See paragraph on page 3.

          There are two support staff in the office. One being currently on maternity
           leave.




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2.) COURT MATTERS (of note).

      Civil-

         GLASSIE –v- The Prime Minister/Public Service Commissioner/
          Government of the Cook Islands. This was a claim for $202,000 for
          unfair dismissal of the Plaintiff by the Prime Minister of his former Chief
          of Staff, Mr. Nandi Glassie, now an Opposition MP.
          The Plaintiff claimed unfair dismissal for early termination of one day.
          The case was dismissed. Each party ordered to bear its own costs.

         TEPA- NES & REA- Judicial Review proceedings were commenced
          against the National Environment Service and Rarotonga Environment
          Authority for permit approvals given in relation to a Resort’s beach works
          (stream groynes and rock walls). The Chief Justice, Williams CJ., found
          that the REA had erred in applying Section 50 of the Act instead of
          Section 36 which requires a full EIA process to be undertaken. Costs were
          award against the REA.
         On Appeal, the High Court decision of the Chief Justice was reversed.
          The Applications were returned to the REA to reconsider. Costs were
          returned to the CJ to determine. He awarded costs for the Plaintiffs.
         The Resort has now appealed that costs order to the Court of Appeal.


      Criminal-

         Q v VAILE & ORS. Justice Nicholson (Judge Alone Trial).
                     -Corruption case involving a Member of Parliament. The
                     case is continuing.

         Q V TANGAROA. Justice Nicholson (Jury Trial).
                  - Rape case involving a Church Reverend. Convicted and
                    sentenced.
                  - Conviction and Sentence appealed. Case continuing.




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   3.) PARLIAMENT

 CLO is responsible for advising Ministers, the Attorney General, the Clerk of
Parliament and Parliamentary Select Committees.
CLO manages the legislative program of the government of the Cook Islands in
participation with Cabinet Services, Parliamentary Services and government ministries.
This program is administered at CLO by Senior Crown Counsel, Paul Lynch, who
undertakes Legislative drafting as approved by Cabinet, in conjunction with private
sector legislative drafters, in the Cook Islands and overseas.

In 2007, 37 Bills were passed by Parliament to clear a back-log of Bills.

To date in 2008, 17 Bills have been prepared and passed with another 8 Bills to be tabled
in the final session of Parliament for 2008 in November.
This may bring the total number of Bills prepared and tabled for 2008 to 25.

See List of Acts/Bills in Page 9 of the attached Schedule.


   4.) PROFESSIONAL TRAINING.

    Legal staff, Paul Lynch and Martha Henry attended the Proceeds of Crime, Money
     Laundering & Terrorist Financing Training Workshop in Auckland in June
     administered by PIFS.
    Mr. Tingika Elikana and Mr. Paul Lynch of CLO have on November 7 2008,
     completed their 2 year part-time study in the Masters of Business Administration
     (MBA) at the USP Cook Islands campus.
    Ms. Martha Henry and Paul Lynch are attending the PILON Litigation Skills
     Programme 2008 in Vanuatu November 30 to December 6, 2008.


   5.) OTHER MATTERS.

           Mutual Legal Assistance in Criminal matters
            CLO assisted the Australian Attorney General’s Office in Canberra in the
             collection and swearing of evidence for a serious drug smuggling case
             (QUIROGA). Completed.
            CLO has made an MLA request to the Fijian DPP relating to a fraud
             investigation involving a Fiji national and missing funds ($117,000) for a
             bitumen order placed by the CI Ministry of Works. Continuing.

   6.) CLO is attending the 2008 AGM for PILON is being held in Vanuatu from 5-9
       December 2008 to be co-hosted by Vanuatu and New Zealand. In accordance
       with the PILON Charter Vanuatu is now a member of the committee.


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SCHEDULE

The Cook Islands and its Economy

The Cook Islands consist of 15 islands scattered over some 2 million square kilometers of
the Pacific Ocean, approximately half way between New Zealand and Hawaii. It lies in
the centre of the Polynesian Triangle, flanked to the west by the Kingdom of Tonga and
Samoa and to the east by Tahiti and the islands of French Polynesia.

The total land area of the Cook Islands is 240 square kilometers. Its total population, as at
July 2001, was approximately 20,600. 2006 Census of Population and Dwellings was
19,569, an increase of 1542 over the 2001 count. However, in that period, the numbers of
resident population have declined from 14,000 to 11,800, indicating an increasing
proportion of nonresidents. The working age population consists of 3,973 males and
3,747 females. The country is ranked 215 out of 227 countries in the CIA World Fact
Book 2007/08 ranking on GDP ($US183,200,000- 2005 est.). In terms of GDP per capita,
the Cook Islands is ranked 104th at $US9,100 per capita (2005 est.). GDP is derived
principally from the services sector (tourism, financial services): 75.3% and 24.7%
represents other sectors (2004). The Gross turnover of the Cook Islands Finance and
Business Services Sector in 2006 was $NZ30.255 million, which while being an 8.5%
increase over the previous year, was only slightly higher than the figure in 2004. (Walker
2008)

The economic growth of the Cook Islands has been consistent over recent years. Our past
prudent fiscal management has been successful and has seen the Cook Islands Standard
and Poor rating improve from ‘BB-‘ to ‘BB’ with a positive outlook. This indicates that
Government is succeeding in its goal of providing a stable fiscal platform to ensure an
enabling environment for private sector growth. Continued strong oversight of
Government’s fiscal policy development and delivery in conjunction with robust
budgetary process will help the Cook Islands achieve its long term national goals.
(Budget Policy Statement 2008/09).

Parliament

The Cook Islands is a parliamentary democracy, which became self-governing in free
association with New Zealand on 4 August 1965. The Cook Islands is fully responsible
for internal affairs, while New Zealand retains responsibility for defence and external
affairs, in consultation with the Cook Islands. The Cook Islands has the right at any time
to move to full independence by unilateral action. The Cook Islands uses the New
Zealand dollar as its unit of currency.

The Constitution vests the executive authority of the Cook Islands in Her Majesty the
Queen in right of New Zealand. The Constitution provides for a Cabinet of Ministers
comprising the Prime Minister and not fewer than six nor more than eight other Ministers
"which shall have the general direction and control of the executive government of the
Cook Islands, and shall be collectively responsible to Parliament".



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The Cook Islands has a unicameral Parliament of 24 seats. Members are elected by
popular vote to serve four-year terms. Following legislative elections, the leader of the
party that wins the most seats usually becomes Prime Minister. Subject to the
Constitution, Parliament "may make laws (to be known as Acts) for the peace, order and
good government of the Cook Islands" (Article 39(1)), including "laws having extra-
territorial operation" (Article 39 (2)).

The Cook Islands Legal System

The Cook Islands’ legal system is based on New Zealand law and English common law.
The Constitution establishes a "Court of record, to be called the High Court of the Cook
Islands, for the administration of justice throughout those islands". The High Court has
Civil, Criminal and Land Divisions with the Ministry of Justice.

Pursuant to Section 52 of the Constitution the Chief Justice and Judges of the High Court
are appointed by the Queen's Representative, "acting on the advice of the Executive
Council tendered by the Prime Minister"; other Judges, "by the Queen's Representative,
acting on the advice of the Executive Council tendered by the Chief Justice of the High
Court and the Minister of Justice".
The standard practice is for Judges to be appointed from senior members of the New
Zealand judiciary and Bar.
The current Chief Justice is David Williams C.J.
Justices of the Peace of the High Court are appointed pursuant to Section 62 of the
Constitution. Appointments are usually non-lawyers who are well respected in the local
community.

Jurisdiction pursuant to the Judicature Act 1980

Civil matters
                      $0- $1,500                             -One Justice of the Peace.
                      $1,500- $3,000                         -Three Justices of the Peace.
                      Land matters- Certain applications and uncontested matters bu one
                       Justice. Matters can be referred to the High Court (Land Division)
                       and heard before a Judge familiar with Cook Islands land matters.

Criminal matters

                      Offence- Imprisonment of a term not exceeding 2 years or fine not
                       exceeding $500-                       -One Justice of the Peace.
                      Offence- 3 years or fine of $1000   -Three Justices of the Peace.

The High Court then has the further jurisdiction with Leave to appeal possible to the
Cook Islands Court of Appeal presided over by three High Court Judges.




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Good Governance

Government will institute a well coordinated Governance Framework that encompasses
medium term planning, budgeting, monitoring and evaluation of the entire public service.
This framework will ensure the effective implementation of Government Policy, thus
operationalising the National Sustainable Development Plan. (Budget Policy Statement
2008/09).

Good Governance is one of the Governments Policy Objective for 2008/09 fiscal year to
enhance good governance practices including the performance and productivity of all
government including agencies that upholds justice, law and order. The implementation
of the recommendations contained within the Robinson Police Review will continue this
fiscal year primarily focusing on addressing the inadequacies in human resources,
information technology and outdated legislations. Other government ministries such as
the Ministry of Health and the Ministry of Works who has recently been subjects of a
review is an indication and commitment by government to ensure that the principles of
transparency and good governance is implemented by all ministries for a greater public
confidence.

FINANCIAL AND BUSINESS SECTOR

The Cook Islands financial sector is characterized by two sectors: domestic and off-
shore. The Financial Supervisory Commission (FSC) regulates and supervises those
financial institutions that currently fall within the regulatory framework. There is no
Central Bank and the country uses New Zealand currency.


Banking Sector

All banks are licensed and supervised by the FSC under the provisions of the Banking Act
2003.

The domestic banking sector comprises three banks, two of which are branches of
Australian banks, and one government-owned bank. The Australian banks account for
more than 85% of the banking sector. Total domestic bank assets at 31 December 2007
were $395.7 million.

The off-shore banking sector comprises four international banks, plus one of the domestic
banks that also has an international licence.

Insurance Industry

There is one domestic general insurance company and three off-shore insurers. Off-shore
insurers are currently regulated under the Off-shore Insurance Act 1981. However, this
Act is to be repealed on 1 January 2009 and replaced by the Insurance Act 2008, which
will come into effect on that date. Currently domestic insurers are not licensed or
regulated in the Cook Islands but the introduction of the new insurance legislation will
introduce a licensing and supervisory regime from 1 January 2009. The new regime will

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encompass domestic and off-shore insurers, insurance intermediaries (agents and brokers)
and insurance managers, who will act as managers of offshore insurers.

Due to the small size of the insurance sector, an insurance broker acting for a reputable
global company places large risks with insurers in markets outside the Cook Islands as
the local company does not have capacity to assume all risks in the Cook Islands.

There is no life insurance company established in the Cook Islands. Life insurance is
sold by visiting agents for two New Zealand life insurance companies. This is a long-
standing arrangement and has operated satisfactorily, but from 1 January 2009 the agents
will be supervised by the FSC.

Moneychangers and Remittance Businesses

There is one money exchange/remittance business that is part of a global chain. This is
not currently regulated; however, the Government has decided that there should be
licensing and regulation of money changers/remittance businesses and legislation is being
drafted to effect this. The draft Bill is being reviewed by the FSC which is also
undertaking stakeholder consultations.
The Act will be introduced into Parliament early in 2009. Regulation will be the
responsibility of the FSC.

Trust and Company Service Providers

There are currently six trustee companies authorized under the Trustee Companies Act
1981-82. These companies provide services such as the incorporation of international
companies, the registration of international trusts, international partnerships and limited
liability companies and other related services.

Trustee companies are authorized by the FSC and the registration function for
international companies, international trusts and limited liability companies is performed
by the Registrar’s Office, which is located in the FSC.

As at 31 October 2008, there were 8xx international companies, 24xx international trusts
and 1x limited liability companies registered in the Cook Islands.


Lawyers

The Cook Islands have a total of 8 accountants’ businesses, 19 pearl dealers, 7 lawyers’
businesses (excluding lawyers in trust companies), 4 real estate agents, and 58 non-
government organisations. All are known individually to public agencies including the
FIU.




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ACTS OF PARLIAMENT FOR 2008

Bill      BILL/ACT PASSED
Number
  1.)     SPAM
  2.)     OFFICIAL INFORMATION
  3.)     ENTRY, RESIDENCE AND DEPARTURE
          AMENDMENT
  4.)     MARITIME TRANSPORT
  5.)     TRANSPORT AMENDMENT
  6.)     FILMS AND CENSORSHIP AMENDMENT
  7.)     LIMITED LIABILITIES COMPANIES
  8.)     TRANSPORT AMENDMENT (NO.2)
  9.)     LAW PRACTITIONERS AMENDMENT
  10.)    DISABILITY
  11.)    INSURANCE
  12.)    APPROPRIATION
  13.)    APPROPRIATION AMENDMENT
  14.)    BIOSECURITY
  15.)    AVIATION SECURITY
  16.)    TRANSPORT AMENDMENT (NO3)
  17.)    2009 PACIFIC MINI GAMES (TAX EXEMPTION)


          FURTHER BILLS TO BE TABLED IN
          NOVEMBER 2008

  18.)    CONSUMER GUARANTEES
  19.)    FAIR TRADING
  20.)    SMALL CLAIM TRIBUNAL
  21.)    DEVELOPMENT INVESTMENT BOARD
          AMENDMENT
  22.)    ARBITRATION
  23.)    LAND AGENTS REGISTRATION
  24.)    JUDICATURE
  25.)    PERCA




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