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Cook Islands Sessional Legislation |
COOK ISLANDS
FINANCIAL SUPERVISORY COMMISSION ACT 2003
ANALYSIS
1. Short Title and
commencement
2.
Interpretation
PART
1
FINANCIAL
SUPERVISORY COMMISSION
3. Financial Supervisory
Commission
4. Board
members
5. Term of office and
remuneration of Board members
6.
Extraordinary vacancies
7. Meetings of
Board
8. Minutes of
meetings
9. Disclosure of conflict of
interest
10. Conflicts of
interest
11. Board may refer matters
for investigation
12. Delegation of
powers of Board
13. Commissioner,
other employees
14. Personal
liability
PART
2
DUTIES,
FUNCTIONS AND POWERS
15. Duties of the
Commission
16. Functions of the
Commission
17. Condition that licensed
financial institution must have Compliance
Officer
18. Powers of the
Commission
19. Government
policy
PART
3
DISCLOSURE
OF INFORMATION
20. Disclosure to the
Commission
21. Offence to supply false
information
22.
Confidentiality
PART
4
ACCOUNTABILITY
23. Disclosure to overseas
regulatory authority
24. Funds of the
Commission
25. The Commission
account
26. Financial reporting and
fiscal updates
27. Statement of
corporate intent
28. Annual
report
29. Application of Ministry of
Finance and Economic Management
Act
30. Office of the Public
Expenditure Review Committee and
Audit
to be auditor of the
Commission
PART
5
MISCELLANEOUS
31. Protection from
disclosure of sensitive
information
32.
Seal
33. Act binding on
Crown
34.
Regulations
35.
Transitional
36.
Savings
37. Consequential
amendments
38. Repeal
Schedules
-------------------------------------------------
2003, No. 11
An Act to establish the Financial Supervisory Commission and to set out its functions and powers
(7 May 2003
BE IT
ENACTED by the Parliament of the Cook
Islands in Session assembled, and by the authority of the same, as
follows:
1.
Short Title
and commencement - (1) This Act may be
cited as the Financial Supervisory Commission Act
2003.
(2) This Act shall come into
force on a date to be determined by the Queen's Representative by Order in
Executive Council.
(3)
Notwithstanding subsection (2), and without limiting the application of section
12 of the Acts Interpretation Act 1924, upon the
passing of this Act, the powers
to appoint Board members, the Commissioner, Registrars and other officers and
employees of the Financial
Supervisory Commission may be exercised prior to the
date of this Act coming into force for the purpose of bringing this Act into
operation on the date of its coming into
force.
2.
Interpretation
- (1) In this Act, unless the context otherwise requires -
"Board" means the Board of the Financial Supervisory Commission appointed pursuant to section 4;
"Commission" means the Financial Supervisory Commission established by this Act;
"Commissioner" means the person appointed as Commissioner pursuant to section 13;
"financial year" means a year ending on the 30th June;
"licensed financial institution" means a licensee licensed pursuant to the Banking Act 2003 to carry on banking business, a Trustee Company licensed pursuant to the Trustee Companies Act 1981-82, an Offshore Insurance Company licensed pursuant to the Offshore Insurance Act 1981-82, and a person carrying on "insurance business" as defined in the Insurance Companies Deposits Act 1970-71;
"Minister" means the Minister responsible for Finance;
PART
1
FINANCIAL
SUPERVISORY COMMISSION
3.
Financial
Supervisory Commission- (1) There is
established a statutory body, to be called the Financial Supervisory
Commission.
(2) The Commission
shall be a body corporate with perpetual succession and a common seal and shall
be capable of acquiring holding
and disposing of real and personal property, of
suing and being sued and of doing and suffering all such acts and things as
bodies
corporate may lawfully do and
suffer.
4.
Board
members - (1) There shall be a Board of
the Commission which shall, subject to the provisions of this Act, have overall
control of the Commission
and which shall exercise the duties, functions and
powers of the Commission.
(2) The
Board shall comprise 5 members appointed by the Minister, all of whom must have
qualifications and experience in, and have
shown capacity in financial or
commercial matters, law or
accounting.
(3) No person who is
-
(a) a member of Parliament; or
(b) employed in the service of the Crown or any agency of the Crown; or
(c) a director, legal or beneficial shareholder or employee of a licensed financial institution, or the spouse or immediate family of any such person,
shall
be eligible for appointment as a member of the
Board.
(4) The Minister shall,
from amongst all persons appointed as Board members, appoint one of them as
Chairperson of the Board.
5.
Term of
office and remuneration of Board members
- (1) Except as provided in subsection (2), every Board member shall hold office
for a term of two years but may from time to time
be
re-appointed.
(2) Three of the
first Board members appointed pursuant to section 4(2), shall be appointed for a
term of 3 years, but thereafter
every Board member succeeding in office to those
Board members shall be appointed for a term of 2
years.
(3) Notwithstanding
anything in this section, every Board member whose office is terminated by
effluxion of time shall continue to
hold office until that Board member's
successor comes into office.
(4)
The Board members shall be paid out of the funds of the Commission such
remuneration and allowances as shall from time to time
be determined by the
Queen's Representative by Order in Executive
Council.
6.
Extraordinary
vacancies - (1) A Board member may resign
at any time by written notice to the
Minister.
(2) The Minister shall
terminate the appointment of any Board member who -
(a) becomes of unsound mind or incapable of carrying out his or her duties;
(b) becomes bankrupt, suspends payment to or compounds with his or her creditors;
(c) is convicted in any jurisdiction of an offence involving dishonesty or fraud;
(d) is guilty of serious misconduct in relation to his or her duties;
(e) is absent, without leave of the chairperson from three consecutive meetings of the Board; or
(f) fails in the opinion of the Minister to have complied with his or her obligations under section 9; or
(g) is convicted of any offence under this Act.
(3)
A person whose appointment is terminated pursuant to subsection (2) shall not be
eligible for reappointment.
(4) If
the appointment of a Board member is terminated, the vacancy shall be deemed to
be an extraordinary vacancy.
(5)
In the case of an extraordinary vacancy the Minister shall subject to sections
4(2) and 4 (3) appoint a person to fill that
vacancy.
(6) A Board member
appointed to fill an extraordinary vacancy shall hold office only for the
unexpired portion of the term of office
of that Board member's predecessor, but
may be re-appointed.
(7) The
powers of the Board shall not be affected by an extraordinary vacancy in its
membership.
7.
Meetings of
Board - (1) The first meeting of the
Board shall be held on a day to be appointed by the Chairperson, such day to be
in any event not later
than one month after the coming into force of this
Act.
(2) Subsequent meetings shall
be held at such times and places as the Chairperson may from time to time
appoint.
(3) The Chairperson or
any three other Board members may at any time by notice in writing to all Board
members call a special meeting
of the
Board.
(4) At all meetings three
Board members shall constitute a
quorum.
(5) The Chairperson shall
preside at all meetings at which the Chairperson is present. In the absence of
the Chairperson from any
meeting, the Board members present shall appoint one of
their number to be Chairperson of that
meeting.
(6) At any meeting the
Chairperson shall have a deliberative vote and in the cast of an equality of
votes, a casting vote.
(7) All
questions arising at any meeting shall be decided by a majority of the votes of
Board members recorded
thereon.
(8) The Commissioner
shall, unless excused by the Board, attend all meetings of the Board and shall
be entitled to be heard in respect
of any matter being considered by the Board,
but shall not be entitled to
vote.
(9) Subject to the
provisions of this Act and of any regulations made hereunder, the Board may
regulate its procedure in such manner
as it thinks
fit.
8.
Minutes of
meeting - (1) The Board shall cause
minutes to be kept in a book provided for the purpose, of all resolutions and
proceedings of its meetings.
(2)
The minutes shall be signed by the Chairperson at the next meeting subsequent to
the passing thereof.
(3) A copy of
the minutes of every meeting shall be furnished to every Board
member.
9.
Disclosure of
conflicting interest - (1) If a Board
member has any pecuniary interest, direct or indirect, in any contract, proposed
contract, licence or other matter
and is present at a meeting of the Board at
which the contract, proposed contract, licence or other matter is the subject of
consideration,
that Board member shall at the meeting and as soon as practicable
after its commencement disclose the fact and shall not take part
in the
consideration or discussion of the contract, proposed contract, licence or other
matter, or vote on any question with respect
to it, and shall be excluded from
the meeting for the duration of the consideration, discussion and voting
procedure.
(2) A Board member who
fails to comply with subsection (1) is guilty of an offence and shall be liable
on conviction to a fine not
exceeding $10,000 and to imprisonment for a term not
exceeding one year unless the Board member proves that he did not know that
the
contract, proposed contract, licence or other matter in which he had a pecuniary
interest was the subject of consideration at
that
meeting.
(3) A disclosure under
subsection (1) shall be recorded in the minutes of the
Board.
(4) No act or proceeding of
the Board shall be questioned on the ground that a Board member has contravened
this section.
10.
Conflicts of
interest - (1) For the purposes of
section 9 a Board member shall be treated, subject to subsections (2) and (3) as
having a pecuniary interest,
direct or indirect, in a contract, proposed
contract, licence or other matter if -
(a) he or she or any nominee of that Board member, is a member of a company or other body with which the contract was made or is proposed to be made or which has a direct pecuniary interest in the licence or other matter under consideration;
(b) he or she is a partner, or is in the employment of a person with whom the contract was made or is proposed to be made, or who has a direct pecuniary interest in the licence or other matter under consideration; or
(c) he or she or any partner of that Board member is a professional adviser to a person who has a direct or indirect pecuniary interest in a contract, proposed contract, licence or other matter.
(2)
Subsection (1) shall not apply to membership of or employment under any public
body.
(3) In the case of married
persons the pecuniary interest of one spouse shall be deemed for the purpose of
section 9 to be also the
interest of the
other.
11.
Board may
refer matters for investigation - (1) The
Board may from time to time appoint one or more of its members or any other
person or persons having appropriate qualifications
or experience to investigate
and report to the Board on such matters as are referred to him or them by the
Board, for the purpose
of the proper exercise of the Board's powers or its
duties or functions under this
Act.
(2) Without limiting the
generality of subsection (1), the Board shall establish and maintain a
sub-committee for the purpose of informing
the Board of international
developments generally affecting or relating to the regulation and supervision
of institutions having
functions similar to licensed financial
institutions.
(3) Notwithstanding
subsection (3) of section 4, a person who is otherwise disqualified pursuant to
paragraph (c) of that subsection
shall be eligible for appointment to the
subcommittee established pursuant to subsection (2) for the purposes only of
that sub-committee.
Any such person shall be deemed not to have a direct or
indirect pecuniary interest in any matter by reason alone of participating
in
discussion on any matter relating to international developments being considered
by the sub-committee.
12.
Delegation of
powers of Board - (1) The Board may from
time to time delegate to any Board member, the Commissioner, any officer or
employee of the Commission,
any of the powers or functions of the Board,
including, subject to such limitations as may be imposed by the Board, the power
of
delegation conferred by this
section.
(2) Subject to any
general or special directions given or conditions imposed by the Board or person
to whom any powers are delegated
pursuant to this section, the person to whom
any powers are so delegated may exercise those powers in the same manner and
with the
same effect as if they had been conferred directly by this Act and not
by delegation.
(3) Every person
purporting to act pursuant to any delegation under this section shall be
presumed to be acting in accordance with
the terms of the delegation in the
absence of proof to the
contrary.
(4) Any delegation under
this section may be made to a specified person onto persons of a specified
class, or may be made to the holder
for the time being of a specified office or
appointment, or to the holders of offices or appointments of a specified
class.
(5) Any delegation under
this section may be revoked at any
time.
(6) The delegation of any
power by the Board or by any person shall not prevent the exercise of that power
by the Board or, as the
case may require, by the person by whom the delegation
is made.
13.
Commissioner,
other employees - (1) The Board shall
appoint as the administrative head of the Commission, a Commissioner on such
terms and conditions as may be
determined by the Board, and such registrars as
are required to administer the enactments set out in the First
Schedule.
(2) The Commissioner
shall be responsible to the Board for the proper and efficient administration of
the Commission and for its compliance
with the provisions of this
Act.
(3) A person appointed as
Commissioner shall have qualifications and experience in, and shall have shown
capacity in financial or
commercial matters, law or
accounting.
(4) The Commissioner
may from time to time, within policy guidelines established by the Board,
appoint such other officers and employees
of the Commission including acting or
temporary or casual officers and employees, as are necessary for the efficient
exercise of
the duties, functions and powers of the
Commission.
(5) No person who is
-
(a) a member of Parliament; or
(b) employed in the service of the Crown or any agency of the Crown; or
(c) a director, legal or beneficial shareholder or employee of a licensed financial institution, or the spouse or immediate family of any such person,
shall
be eligible for appointment as the
Commissioner.
14.
Personal
liability - No Board member,
Commissioner, employee, officer, registrar or other person acting under the
authority of the Commission, shall
be personally liable for any act or default
done or omitted to be done in that capacity in good faith.
PART
2
DUTIES,
FUNCTIONS AND POWERS
15.
Duties of the
Commission - (1) It shall be the duty of
the Commission to administer this Act and the enactments set out in the First
Schedule (which shall
include for the purposes of this Act, regulations and
orders made thereunder) and to regulate licensed financial institutions in
the
Cook Islands in a manner which is to internationally accepted
standards.
(2) Without limiting
subsection (1), the Commission is charged with the following duties
-
(a) to keep under review, the operation of the Cook Islands legislation relating to licensed financial institutions and the effectiveness of supervision of licensed financial institutions;
(b) to continually monitor the extent to which Cook Islands legislation and the supervision of licensed financial institutions comply with internationally accepted standards;
16.
Functions of
the Commission - (1) In the carrying out
of its duties, the Commission shall have the following functions
-
(a) to administer the enactments set out in the First Schedule;
(b) to licence licensed financial institutions and monitor their compliance with their obligations under the enactments set out in the First Schedule and any conditions that may be imposed on licensed financial institutions by those or any other enactment, or imposed by any licence granted pursuant to those enactments;
(c) from time to time to recommend to the Minister legislative, administrative or other action that will -
(i) better facilitate the responsible provision of services provided by licensed financial institutions;
(ii) ensure better compliance with statutory obligations and licensing or administrative conditions imposed upon licensed financial institutions;
(iii) ensure better compliance with conditions imposed upon the grant of any exemptions under the enactments set out in the First Schedule;
(iv) avoid acts or practices that may be detrimental to the reputation of the Cook Islands or inconsistent with the responsible provision of services by licensed financial institutions;
(d) monitor the effectiveness of the enactments set out in the First Schedule in providing for the supervision and regulation of services provided by licensed financial institutions to internationally accepted standards;
(e) to make recommendations to the Minister on such amendments or revisions to existing legislation or new legislation relating to licensed financial institutions as the Commission considers necessary or appropriate in developing and regulating the integrity of licensed financial institutions;
(f) to provide the Minister with periodic reports, advice and assistance on policy matters relevant to the administration of this Act;
(g) to consult with, develop and maintain regular contact with licensed financial institutions with a view to -
(i) encouraging the development of high professional standards within licensed financial institutions; and
(ii) initiating, promoting and maintaining codes of conduct for licensed financial institutions;
(iii) developing and maintaining for persons engaged by licensed financial institutions, a system of continuing education in respect of issues relating to financial crime and money laundering;
(h) to develop such measures as may be necessary to appropriately inform the general public regarding its functions and regarding matters relating to or affecting licensed financial institutions.
(2)
In the exercise of its functions under paragraphs (c) and (e) of subsection (1),
the Commission shall, before making recommendations
to the Minister, consult
with licensed financial
institutions.
17.
Condition
that licensed financial institution must have Compliance
Officer - (1) It shall be a condition of
every licence issued to a licensed financial institution that the licensed
financial institution
must have a person appointed and holding office as a
Compliance Officer in accordance with qualifications and criteria prescribed
by
regulation.
(2) A Compliance
Officer shall be responsible for ensuring that the licensed financial
institution by whom that Compliance Officer
is employed shall establish and
maintain such office and accounting procedures as shall enable the financial
institution to meet
its obligations under any enactment applicable to it, in
respect of-
(a) customer identification;
(b) record keeping and retention; and
(c) any other matters as may be prescribed by regulation.
18.
Powers of the
Commission - (1) The Commission shall
have all the powers reasonably necessary for the effective performance of its
functions.
(2) Without limiting
the generality of subsection (1), the Commission or any suitably qualified
person authorised by the Commission
may for the purpose of ensuring compliance
with this Act or any regulations made thereunder -
(a) on an annual basis and at any reasonable time, enter any premises, in which the Commission believes, on reasonable grounds, that there are records relevant to ensuring compliance with this Act;
(b) require a financial institution or any officer, employee or agent of a licensed financial institution to supply such information or explanation as the Commission may reasonably require for the purpose of enabling the Commission to perform its functions under this Act;
(c) use or cause to be used any computer system or data processing system in the premises to examine any data contained in or available to the system;
(d) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible output and remove the printout or other output for examination or copying; and
(e) use or cause to be used any copying equipment in the premises to make copies of any record;
(f) direct a licensed financial institution that has without reasonable excuse failed to comply in whole or in part with any obligations under this Act or any licence issued under this Act to implement any action plan to ensure compliance with those obligations.
(3)
Any person who wilfully obstructs or hinders or fails to co-operate with the
Commissioner or any authorised person in the lawful
exercise of the powers under
subsection (2) commits an offence punishable by -
(a) in the case of an individual, to a fine of up to $20,000, or a term of imprisonment not exceeding 2 years; or both;
(b) in the case of a body corporate, to a fine of up to $150,000.
19.
Government
policy - (1) In the exercise of its
duties, functions and powers and in the preparation of its statement of
corporate intent, the Commission
shall have regard to any written policy
directions conveyed to it by the Minister in writing and which are not
inconsistent with
the duties, functions or powers of the
Commission.
(2) A copy of every
written policy direction given by the Minister pursuant to subsection (1) shall
be included in the next ensuing
annual report of the Commission.
PART
3
DISCLOSURE
OF INFORMATION
20.
Disclosure to
the Commission - (1) The Commission may
require any licensed financial institution, or any director, other officer or
employee of such licensed
financial institution, to supply to the Commission in
such form and within such time as the Commission may determine, such information
as the Commission considers necessary to enable it to carry out its
functions.
(2) The Commission may
at all reasonable times by notice in writing given to any person reasonably
believed to have information relevant
to an enquiry by the Commission, require
that person to -
(a) provide specified information or information of a specified description; or
(b) produce specified documents or documents of a specified description,
as
it may reasonably require in connection with the exercise by the Commission of
functions conferred on it by this Act or by any
other enactment administered by
the Commission.
(3) Where, in
accordance with section 23 the Commission is satisfied that assistance should be
provided in response to a request by
an overseas regulatory authority, it may in
writing direct any person reasonably believed to have information relevant to
enquiries
to which the request relates, within a stated time, to
-
(a) provide the Commission with specified information or information of a specified description with respect to any matter relevant to the inquiry to which the request relates;
(b) produce specified documents or documents of a specified description relevant to that inquiry; or
(c) give to the Commission such assistance in connection with that inquiry as the Commission may specify in writing.
(4)
Where a person fails to comply with a. requirement under subsection (2) or a
direction given under subsection (3) within seven
days of the date of the
requirement or direction, or such longer period as the Commission may permit,
the Commission may apply to
a Judge of the High Court for an order requiring
that person to comply with the requirement or
direction.
(5) Where, in
connection with a requirement under subsection (2) or a direction given under
subsection (3), the Commission considers
it necessary to examine a person on
oath, the Commission may apply to a Judge of the High Court to have that person
examined by the
court and to have the results of that examination sent to the
Commission.
(6) The court shall
process an application under subsection (5) as soon as practicable and shall
send the result of the examination
to the Commission within fourteen days of the
examination.
(7) Where documents
are produced pursuant to subsection (2) or (3) the Commission may take copies of
them or extracts from them.
(8) A
person shall not be required under this section to disclose information or to
produce a document which that person would be
entitled to refuse to disclose or
to produce on the grounds of legal professional privilege in civil or criminal
proceedings in the
High Court.
(9)
Where a person claims a lien on a document, its production under this section
shall be without prejudice to that
lien.
(10) In this section
"document" includes information recorded in any form and, in relation to
information recorded otherwise than
in legible form, the power to require its
production includes power to require the production of a copy of it in legible
and intelligible
form.
(11) For
the purpose of this section, but subject to subsection (12), any information or
other matter is deemed to have come to a
professional legal adviser in
privileged circumstances if it is communicated or given to him -
(a) by or by a representative of a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by or by a representative of a person seeking legal advice from the adviser; or
(c) by any person -
(i) in contemplation of or in connection with legal proceedings; and
(ii) for the purpose of those proceedings.
(12)
No information or other matter shall be deemed to have come to a professional
legal adviser in privileged circumstances if it
is communicated or given with a
view to furthering any criminal
purpose.
(13) A person who without
reasonable cause -
(a) fails to comply with a requirement of the Commission under subsection (2) or a direction of the Commission under subsection (3); or
(b) with intent to avoid the provisions of subsections (2) or (3) destroys, mutilates, defaces, hides or removes a document; or
(c) wilfully obstructs an inquiry by the Commission made in accordance with the provisions or subsection (2) or (3),
shall
be guilty of an offence and shall be liable on conviction to a fine not
exceeding $20,000 or to imprisonment for a term not
exceeding two years and in
the case of a continuing offence to a fine not exceeding $1,000 for each day
during which the offence
continues.
(14) Where
-
(a) an offence under this section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, or other similar officer of the body corporate, or any person purporting to act in any such capacity, that person, as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly;
(b) the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with that member's functions of management as if that member were a director of the body corporate.
21.
Offence to
supply false information - Any person who
supplies or is concerned in supplying to the Minister or the Commission or any
other person any statement, account,
report or other information pursuant to
this Act or any purpose for which any such statement, account, report or
information is lawfully
required thereunder, knowing the same to be false in a
material particular, shall be guilty of an offence and shall be liable on
conviction thereof to a fine not exceeding $20,000 or to imprisonment for a term
not exceeding two years.
22.
Confidentiality
- (1) Subject to subsection (2), any person who is a Board member, the
Commissioner, a registrar or other officer, employee, agent
or adviser of the
Commission and who discloses any information relating to -
(a) the affairs of the Commission;
(b) any application made to the Commission;
(c) the affairs of a licensed financial institution; or
(d) the affairs of a customer, client or policyholder of, or a company or fund managed by a licensed financial institution,
that
he has acquired in the course of his or her duties or in the exercise of the
Commission's functions under this or any other enactment,
is guilty of an
offence and shall be liable on conviction to a fine not exceeding $20,000 or to
imprisonment for a term not exceeding
two
years.
(2) Subsection (1) shall
not apply to a disclosure -
(a) lawfully required or permitted by Cook Islands law;
(b) for the purpose of assisting the Commission in the exercise of any of the functions conferred on it by this Act or by any other enactment;
(c) in respect of the affairs of a licensed financial institution or of a customer, client, policyholder of, or a company or fund managed by a financial institution, with the authority of the licensed financial institution, customer, client, policyholder, company or fund as the case may be (which consent has been voluntarily given);
(d) if the information disclosed is or has been available to the public from any other source;
(e) where the information disclosed is in a manner that does not enable the identity of any licensed financial institution or of any customer, client, or policyholder of, or company or fund managed by a licensed financial institution to which the information relates to be ascertained;
(f) to a person with a view to the commencement of, or for the purpose of –
(i) criminal proceedings;
(ii) disciplinary proceedings, whether within or outside the Cook Islands, relating to the exercise by a barrister or solicitor, auditor, accountant, valuer or actuary of his or her professional duties; or
(iii) disciplinary proceedings relating to the discharge by a public officer, or a member or employee of the Commission of his or her duties; or
(g) for the purposes of any legal proceedings in connection with -
(i) the winding-up or dissolution of a licensed financial institution; or
(ii) the appointment or duties of a receiver of a licensed financial institution.
23.
Disclosure to
overseas regulatory authority - (1)
Subject to subsection (4), the Commission may disclose to an overseas regulatory
authority, information including the conduct
of civil or administrative
investigations and proceedings to enforce laws, regulations and rules
administered by that
authority.
(2) In deciding whether
or not to exercise its power under subsection (1), the Commission may take into
account -
(a) whether the inquiry relates to the possible breach of a law or other requirement which has no close parallel in the Cook Islands or involves the assertion of a jurisdiction not recognised by the Cook Islands;
(b) the seriousness of the matter to which the inquiry relates; and
(c) the importance to the inquiry of the information sought in the Cook Islands.
(3)
The Commission may decline to exercise its powers under subsection (1) unless
the overseas regulatory authority undertakes to
pay the Commission for its costs
of the exercise in such amount as the Commission considers
reasonable.
(4) Nothing in
subsection (1) shall authorise a disclosure by the Commission unless
-
(a) the Commission has satisfied itself that the intended recipient authority is subject to adequate legal restrictions on further disclosures which shall include the provision of an undertaking of confidentiality; or
(b) the Commission has been given an undertaking by the recipient authority to not, without the consent of the Commission, disclose the information provided; and
(c) the Commission is satisfied that the assistance requested by the overseas regulatory authority is required for the purposes of the overseas regulatory authority's lawful regulatory functions including the conduct of civil or administrative investigations or proceedings to enforce laws administered by that authority; and
(d) the Commission is satisfied that information provided pursuant to the exercise of its powers under subsection (3) will not be used in criminal or other proceedings against the Commission or any other person providing the information.
(5)
Where in the opinion of the Commission it appears necessary in relation to any
request for assistance received from an overseas
regulatory authority to invoke
the jurisdiction of a Judge of the High Court in the manner contemplated by
subsections (4) and (5)
of section 20, the Commission shall immediately notify
the Solicitor-General with particulars of the request, and shall send the
Solicitor-General copies of all documents relating to the request, and the
Solicitor-General shall be entitled, in a manner analogous
to amicus curiae, to
appear or take part in any proceedings in the Cook Islands or in any appeal from
such proceedings, arising directly
or indirectly from any such
request.
PART
4
ACCOUNTABILITY
24.
Funds of the
Commission - (1) The funds of the
Commission shall comprise -
(a) all license fees and registration fees payable under the enactments set out in the First Schedule which, without further authority than this section, shall be and are appropriated to the Commission for the lawful carrying out of its functions and powers under this Act;
(b) any other monies appropriated by Parliament for the purposes of the Commission;
(c) monies donated to the Commission or to the Government of the Cook Islands for the purposes of the Commission, by any regional or international agency or by any foreign Government.
(2)
Where in any financial year the Board is of the opinion that the funds of the
Commission will be in excess of the amount which
the Board considers will be
sufficient to enable the Commission to carry out its functions, the Board shall
authorise the excess
to be paid to the Cook Islands Government
Account.
25.
The
Commission account - (1) Notwithstanding
section 43 of the Ministry of Finance and Economic Act 1995-96, the Commission
may with the approval of the
Minister keep such bank account or accounts as may
from time to time be approved by the
Board.
(2) No money shall be
withdrawn from any bank account except by cheque or other instrument signed by
such person or persons in such
manner as the Board may from time to time
determine.
26.
Financial
reporting and fiscal updates - The
Commission shall deliver to the Ministry of Finance and Economic Management,
financial reports and fiscal updates in accordance
with Parts II and V of the
Ministry of Finance and Economic Management Act 1995-96, as if the Commission
was a government department
as defined in that
Act.
27.
Statement of
corporate intent - (1) The Board will on
behalf of the Commission deliver to the Minister not later than 3 months before
the commencement of each
financial year, a statement of corporate intent, the
first statement to be delivered within 45 days of the date of this Act coming
into force, or such longer period as the Minister may
allow.
(2) The statement of
corporate intent shall each year contain Government's policy as it affects the
Commission and in addition specify
in respect of the next financial year, and
insofar as is practicable, for the next immediately succeeding financial year,
the following
information -
(a) the objectives of the Commission;
(b) the nature and scope of the activity to be undertaken;
(c) the performance targets and other measures by which the performance of the Commission may be judged in relation to it objectives;
(d) the financial resources required to achieve performance targets;
(e) the costs, if any, to the Commission in recognising Government's policies;
(f) the accounting policies of the Commission;
(g) such other matters as are agreed between the Minister and the Commission.
(3)
The statement of corporate intent may from time to time be revised by agreement
between the Board and the
Minister.
(4) The statement of
corporate intent and any revised statement of corporate intent agreed on
pursuant to subsection (3) shall be
printed and made available to the public at
a fee calculated to recover the cost of printing, within 14 days of being
approved by
the Board.
28.
Annual
report - (1) Within 3 months after the
end of each financial year the Board shall deliver to the Minister a report of
the operations of
the Commission during that financial year, including
statements of -
(a) financial position;
(b) financial performance;
(c) cashflows;
(d) commitments;
(e) specific fiscal risks;
(f) accounting policies;
(g) outputs and outcomes actually achieved,
together
with such other statements as are consistent with generally accepted accounting
practice.
(2) The annual report
made under subsection (1) shall state the information necessary to enable an
informed assessment of the operations
of the Commission including a comparison
of the performance of the Commission with the statement of corporate
intent.
(3) The Minister shall, as
soon as an annual report is received by him, table a copy in Parliament if
Parliament is then in Session
and if Parliament is not then in Session, shall
table the report at the commencement of the next ensuing
Session.
29.
Application
of Ministry of Finance and Economic Management
Act - Notwithstanding the provisions of
section 68 of the Ministry of Finance and Economic Management Act 1995-96, the
provisions of
that Act shall apply to the Commission except to the extent that
those provisions are inconsistent with this
Act.
30.
Office of the
Public Expenditure Review Committee and Audit to be auditor of the
Commission - (1) The Office of the Public
Expenditure Review Committee shall be the auditor of the Commission, which
office will have and may
exercise the functions, duties and powers it has under
the Public Expenditure Review Committee and Audit Act
1995-96.
(2) Without limiting
subsection (1); the Board may with the agreement of the Office of Public
Expenditure Review Committee and Audit;
appoint a person or a firm to conduct
audits of the Commission.
31.
Protection
from disclosure of sensitive information
- Nothing in this Act shall be construed as requiring the inclusion in any
report required under this Act, any information that could
be properly withheld
if it would otherwise damage the national interests of the Cook Islands or the
commercial interests of licensed
financial institutions, or any person who is a
member, director or other officer, or an employee of a licensed financial
institution,
or is information that may be withheld under any Act in force
concerning the disclosure of information.
PART
5
MISCELLANEOUS
32.
Seal
- (1) The Commission shall have a seal which shall be kept in the custody of the
Commissioner and shall be used only pursuant to
a resolution of the
Board.
(2) The Commissioner shall
be responsible for keeping a record of every occasion on which the seal is
used.
33.
Act binding
on Crown - This Act shall bind the
Crown.
34.
Regulations
- (1) The Queen's Representative may from time to time by Order in Executive
Council promulgate such regulations as may be necessary
or expedient for giving
effect to the provisions of this Act and for the due administration
thereof.
(2) All such regulations
shall be laid before Parliament within fourteen days after the date of making
thereof if Parliament is then
in Session, and if Parliament is not then in
Session, shall be laid before Parliament at the commencement of the next ensuing
Session.
35.
Transitional
- (1) Upon the date of coming into force of this Act, all assets and liabilities
of the Office of the Commissioner for Offshore Financial
Services established by
the Offshore Financial Services Act 1998 shall be transferred to and vest in the
Commission without further
assurance than this section and the Commission shall
have all powers necessary to take possession of recover and deal with such
assets
and discharge such
liabilities.
(2) Subject to
subsection (5) -
(a) all assets and liabilities of the Office of the Money Laundering Authority established by the Money Laundering Prevention Act 2000, shall be transferred to and vest in the Commission without further assurance than this section and the Commission shall have all powers necessary to take possession of recover and deal with such assets and discharge such liabilities; and
(b) all monies appropriated by Parliament for the year ending 30th June during which this Act comes into force for the purposes of the Office of the Commissioner for Offshore Financial Services and the Money Laundering Authority shall, without further authority than this subsection, be appropriated to the Commission.
(3)
The Commissioner for Offshore Financial Services appointed pursuant to the
Offshore Financial Services Act 1998 and every Registrar
appointed before the
coming into force of this Act by the Commissioner for Offshore Financial
Services under any of the enactments
set out in the First Schedule shall hold
office as Commissioner of the Financial Supervisory Commission and as Registrars
respectively
for such period and upon such terms and conditions as to
remuneration or otherwise as shall be determined by the Commission, but
in all
other respects as if their appointments were made by the Commission or the
Commissioner as the case may be, under section
13 of this
Act.
(4) Any assets and
liabilities held by the Financial Intelligence Unit set up by the Money
Laundering Authority for the purposes of
meeting certain of its obligations
under the Money Laundering Prevention Act 2000, or any funds appropriated to the
Financial Intelligence
Unit for the financial year in which this Act comes into
force, shall not be transferred to, vest in, or be appropriated to the
Commission.
36.
Savings
- Notwithstanding the repeal by this Act of the Offshore Financial Services Act
1998-
(a) every licence issued by the Commissioner for Offshore Financial Services pursuant to the provisions of the Trustee Companies Act 1981 shall continue in force according to its tenor and shall be deemed to have been issued by the Commission;
(b) every Offshore Insurance Licence issued by the Commissioner for Offshore Financial Services pursuant to the Offshore Insurance Act 1981 shall continue in force according to its tenor and shall be deemed to have been issued by the Commission.
37.
Consequential
amendments - The enactments and the
provisions of those enactments set out in the first column of the Second
Schedule are amended in the manner
set out in the second column to that
Schedule.
38.
Repeal
- The Offshore Financial Services Act 1998 is repealed.
------------------------------------
This Act is administered by the Financial Supervisory Commission.
FIRST SCHEDULE
Enactments administered by the Commission
Banking Act
2003
Trustee Companies Act
1981-82
Offshore Insurance Act
1981-82
Financial Transactions
Reporting Act 2003
Insurance
Companies' Deposits Act
1970-71
International Companies Act
1981-82
International Trusts Act
1984
International Partnerships Act
1984
SECOND SCHEDULE
Consequential Amendments
International
Trusts Act 1984
Schedule By deleting the reference to the Offshore Financial Services Act 1998 and inserting the following Acts-
"Financial Supervisory Commission Act 2003", Financial Transactions Reporting Act 2003".
International
Partnership Act 1984
Section 72(1) By deleting the words "the Offshore Financial Services Act 1998" and substituting the words "Financial Supervisory Commission Act 2003, the Financial Transactions Reporting Act 2003."
International
Companies Act 1981-82
Section
2(1) By deleting the definition of "Commissioner";
By inserting in alphabetical order the following definition:
""Commission" means the Financial Supervisory Commission established by the Financial Supervisory Commission Act 2003;"
Section 8(1) By deleting the words "Offshore Financial Services Act 1998" and substituting the words "Financial Supervisory Commission Act 2003"
Section 224 By deleting the word "Commissioner" and substituting the word "Commission";
Section 249(2) By deleting the words "the Offshore Financial Services Act 1998", and substituting the words "the Financial Supervisory Commission Act 2003, the Financial Transactions Reporting Act 2003";
Section 249A(3)(b) By deleting the word "Commissioner" and substituting the word "Commission".
Offshore
Insurance Act 1981-82
Section
2 By deleting the definition of "Commissioner";
By inserting in alphabetical order the following definition:
"" Commission" means the Financial Supervisory Commission established by the Financial Supervisory Commission Act;"
Section 5 By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 6 By deleting from the heading the word "Commissioner" and substituting the word "Commission";
(1) By deleting the words "to the Commissioner, the Commissioner shall", and substituting the words "to the Commission, the Commission shall";
(2) By deleting the words "In making a decision under subsection (1), the Commissioner", and substituting the words "In making a decision under subsection (1), the Commission";
(3) By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 7(1) By deleting the words "Commissioner grants a licence, the Commissioner", and substituting the words Commission grants a licence, the Commission";
By deleting the words "as the Commissioner thinks fit" and substituting the words "as the Commission thinks fit";
(2) By deleting the word "Commissioner" and substituting the word "Commission";
Section 9 By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 11(1) By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
(1)(b) By deleting the word "Commissioner" and substituting the word "Commission";
(2) By deleting the words "Commissioner intends to suspend or cancel a licence under subsection (1), the Commissioner", and substituting the words "Commission intends to suspend or cancel a licence under subsection (1), the Commission";
(3) and (4) By deleting the word "his" wherever it appears and substituting the word "its";
Section 14 By deleting the word "Commissioner" and substituting the word "Commission";
Section 16(b), 17, 19 and 20 By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 21 By deleting from the heading the word "Commissioner" and substituting the word "Commission";
By deleting the words By deleting the words "The Commissioner, a member of the staff of the Commissioner and an Inspector appointed under section 28 shall not", and substituting the words "A member of the Board of the Commission, the Commissioner and other employees or agents of the Commission shall not''';
Section 22(3)(a) By deleting the word "Commissioner" and substituting the word "Commission";
Section 23A By deleting the words "Commissioner" and substituting the word "Commission"".
Trustee Companies Act 1981-82 By deleting the definition of "Commissioner";
Section 2 By inserting in alphabetical order the following definition:
""Commission" means the Financial Supervisory Commission established by the Financial Supervisory Commission Act 2003;"
Section 5(1) By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
(2) By deleting the words "and the Commissioner may" and substituting the words "and the Commission may";
By deleting the words "as the Commissioner, in the Commissioner's discretion" and substituting the words "as the Commission, in the Commission's discretion,";
(3) By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 5B and 5C By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 5D By deleting the word "Board" wherever it appears and substituting the word "Commissioner";
(1) By deleting the words "or on the Commissioner's own motion" and substituting the words "or on the Commission's own motion";
Sections 5E and 6 By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
Section 7 By deleting the word "Commissioner" and substituting the word "Commission";
Section 8 By deleting the word "Commissioner" wherever it appears and substituting the word "Commission";
By deleting from subsection (1) the words "the Commissioner shall notify the company of that opinion", and substituting the words "the Commission shall notify the company of that opinion";
By deleting from subsection (4) the word "Commissioner's" and substituting the word "Commission's";
Section 9(1) By deleting the words "The Commissioner may in the Commissioner's discretion", and substituting the words "The Commission may in the Commission's discretion";
Section 10(1) By deleting the words "application is made to the Commissioner and the Commissioner's is first obtained", and the substituting words "application is made to the Commission and the Commission's approval is first obtained";
(3) By deleting the words "the Commissioner in considering whether approval should be granted" and substituting the words "the Commission in considering whether approval should be granted";
(4) By deleting the words "the Commissioner may" and substituting the words "the Commission may";
By deleting the words "the Commissioner may in the Commissioner's discretion", and substituting the words "the Commission may in the Commission's discretion";
By deleting the words "approval by the Commissioner" and substituting the words "approval by the Commission";
Section 27(1) and (2) By deleting the word "Commissioner" wherever it appears and substituting the words "Commission";
Section 28(2) By deleting the word "Commissioner" and substituting the word "Commission";
Section 37(1) and 39 By deleting the word "Commissioner" and substituting the word "Commission";
Section 43(5) By deleting the word "Commissioner" and substituting the word "Commission";
(6) By deleting the words "Commissioner" and substituting the word "Commission";
By deleting the word "as the Commissioner may approve" and substituting the words "as the Commission may approve";
(9) By deleting the word "Commissioner" and substituting the word "Commission";
Section 45 By deleting the word "Commissioner" and substituting the word "Commission".
Cook
Islands Monetary Board Act
1981
Section 18 By deleting
section 18
Insurance Companies Deposits Act 1970-71 By deleting the definition of "Financial Secretary";
Section 2 By inserting in alphabetical order, the following definition -
""Commission" means the Financial Supervisory Commission established by the Financial Supervisory Commission Act 2003".
Section 3 By deleting the words "Financial Secretary" and substituting the word "Commission".
Section 7(1) By deleting the words "Financial Secretary" and substituting the word "Commission".
(2) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 8(1) By deleting the word "Financial Secretary" and substituting the word "Commission".
(2) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 9(1) By deleting the word "Financial Secretary" and substituting the word "Commission".
(2) By deleting the word "Financial Secretary" and substituting the word "Commission".
(3) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 10 By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 11(1) By deleting the word "Financial Secretary" and substituting the word "Commission".
(3) By deleting the word "Financial Secretary" and substituting the word "Commission".
(4) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 14(1) By deleting the word "Financial Secretary" and substituting the word "Commission".
(2) By deleting the word "Financial Secretary" and substituting the word "Commission".
(4) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 16(1) By deleting the word "Financial Secretary" and substituting the word "Commission".
(3) By deleting the word "Financial Secretary" and substituting the word "Commission".
Section 21 By deleting the word "Financial Secretary" (including in the heading to that section) and substituting the word "Commission".
By deleting the word "remuneration" and substituting the word "fee".
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