In a pivotal judgment by Chief Justice Keane, the High Court of the Cook Islands delivered a comprehensive decision on the application by Friends of Fiji Inc. challenging specific provisions of the Cook Islands Immigration Regulations 2022. Friends of Fiji was represented by Rokoika Law P.C. while the Attorney General was represented by the Crown Law Office of the Cook Islands. This case revolved around the contention that the residency thresholds for permanent residence, set by the 2022 Regulations, discriminated between New Zealand citizens and other nationals, and were not authorized by the Cook Islands Immigration Act 2021, hence alleging them to be ultra vires and discriminatory under the Cook Islands Constitution.
The Chief Justice meticulously analyzed the relationship between the Cook Islands and New Zealand, focusing on citizenship and residency regulations over the years, leading up to the Immigration Act 2021 and the subsequent Immigration Regulations of 2022 and 2023. The judgment addressed the historic and evolving constitutional relationship between the Cook Islands and New Zealand, highlighting the unique status of Cook Islanders as New Zealand citizens and the preferential treatment accorded to them in terms of residency in the Cook Islands.
The core issues at hand were the legality of the residency thresholds set by the 2022 Regulations and whether they were consistent with the overarching Immigration Act 2021, and, importantly, if they violated the principles of equality and non-discrimination as enshrined in the Cook Islands Constitution.
Chief Justice Keane determined that the preferential treatment of New Zealand citizens regarding residency requirements was not explicitly endorsed by the Immigration Act 2021, nor was it consistent with the Act’s empowering provisions. Furthermore, the judgment held that the executive’s attempt to give effect to these preferences through secondary legislation exceeded the scope of the Act and was thus ultra vires. This conclusion was underscored by a detailed examination of the legislative delegation of power, the principle of separation of powers, and the requirement for primary legislation to give effect to treaty obligations or significant policy shifts.
Additionally, the Chief Justice refrained from making a definitive ruling on whether the residency preferences were unlawfully discriminatory, as the underlying regulation was already found to be invalid. This aspect of the judgment underlines the court’s systematic approach, emphasizing the foundational legal question of legislative authority and scope before addressing constitutional rights and freedoms.
In conclusion, the court’s decision to invalidate the contested residency preferences for New Zealand citizens underscores the importance of adhering to legislative authority, the principles of non-discrimination, and the proper process for enacting changes that affect fundamental rights. This judgment not only reaffirms the constitutional safeguards against discrimination (which the court says did not occur in this instance) but also highlights the procedural obligations of the executive and legislative branches in enacting and implementing immigration policy. The Friends of Fiji Inc. case thus stands as a landmark decision, delineating the boundaries of legislative and executive powers in the Cook Islands and reaffirming legislative delegation of power and the principle of separation of powers. The Chief Justice said,
“I do consider the obligation to accord the New Zealand residence and entry preference, assumed in the 2001 joint declaration, should have been endorsed explicitly by Parliament in the Immigration Act 2021… I grant this application to the extent of the following declaration: the NZ permanent residence preference, expressed in reg 8(2)(d), Immigration Regulations, is invalid because:
- (i) it purports to give effect to a 2001 Joint CI-NZ Centenary Declaration obligation only able to be given domestic legislative effect by Parliament;
- (ii) it is beyond the scope of the Immigration Act 2021.”