This is not Legal Advice to anyone – it is simply an outline of what the current laws state.

ALL BELOW RELATES TO NEW ZEALAND CITIZENS

In brief:

• You can board a commercial aircraft without a voucher if transiting New Zealand.
• Simply go to Air New Zealand and look at a flight from Australia to New Zealand and it
says in red writing that a voucher is not required if transiting.
• If someone had a connecting flight within 24 hours of landing in New Zealand and
‘intended’ to take another flight they are a transit passenger (meaning staying airside)
• However if someone landed in New Zealand and for whatever reason changed their
mind and decided they no longer wanted to continue their journey, there is no legal way
to stop you going to immigration and entering.
• They can’t deport a New Zealand citizen or force someone onto a plane.
• When a person changes their mind and decides to enter they are then in Breach of the
COVID-19 Public Health Response (Air Border) Order (No 2) 2020 as they don’t have an
MIQ slot.
• The penalty is an infringement notice (on the spot fine) of $1000
• This is not a ‘conviction’ as it is an infringement notice (like a speeding ticket).
• They do then have the power to direct you to an MIQ as if you were a regular arriving
passenger.

What the law says about entering New Zealand: (all bold in the legislation is by me to clarify
relevant provisions within a wider section)

1 At the Airport offshore

1.1 At the airport – the Airline needs to reasonably check you have a voucher for MIQ
unless you are exempt.

COVID-19 Public Health Response (Air Border) Order (No 2) 2020

7A Steps to be taken to obtain evidence of confirmed allocation1

https://www.legislation.govt.nz/regulation/public/2020/0239/latest/LMS422286.html?search=qs_act%40bill%40regulation%40
deemedreg_Covid+border+_resel_25_h&p=1
 (1) An air carrier must not cause an aircraft to arrive in New Zealand unless
it has taken reasonable steps to ensure that each person on board the
aircraft (other than an exempt person) has evidence of a confirmed
allocation.

(2) In this clause, exempt person means a person who is exempt

from clause 8(2A) by or under this order.

1.2 Section 8(2A)2 is the requirement to have a voucher. It reads:

(2A) The person must—

(a) have a confirmed allocation; and

(b) produce evidence of a confirmed allocation when requested by 1 or

more of the following:

(i) a health protection officer or a medical officer of health:

(ii) a staff member or representative of the relevant air carrier:

(iii) an immigration officer.

2 Exemption

2.1 The ‘exemption’ is found at Section 10(2) which reads:

10 Arrivals remaining airside until departure from New Zealand3

(1) A person arriving in New Zealand is exempt from clause 8 if, until they
depart from New Zealand, they remain on the airside of—

(a) the airport at which they arrive in New Zealand; and

https://www.legislation.govt.nz/regulation/public/2020/0239/latest/LMS403374.html?search=qs_act%40bill%40r
egulation%40deemedreg_Covid+border+_resel_25_h&p=1#LMS403374
3

https://www.legislation.govt.nz/regulation/public/2020/0239/latest/LMS439165.html?search=sw_096be8ed81b6
8e75_transit_25_se&p=1&sr=2
 (b) any other airport through which they transit.

(2) Without limiting subclause (1), any transit passenger is exempt

from clause 8.

(3) However, this clause does not exempt a transit passenger from clause
8 who is granted permission, in accordance with the Immigration Act 2009,
to enter New Zealand.

(4) In this clause,—transit passenger has the meaning given by section 4 of

the Immigration Act 2009.

2.2 As such a transit passenger is exempt. Note – a person can transit New Zealand within
24 hours. An exemption is required for transit longer than 24 hours on application to
MBIE4.

2.3 A ‘transit passenger’ is defined in Section 4 of the Immigration Act 20095 as:

transit passenger means a person who arrives in New Zealand from another
country while in transit to another overseas destination, not intending to enter or
remain in New Zealand

2.4 However once someone arrives in New Zealand it is entirely possible they may change
their intention.

2.5 As New Zealand citizens cannot be denied entry to their own country an excuse isn’t
even necessary.

3 What is a transit ticket

3.1 For instance a ticket from Sydney to Auckland to Los Angeles is a ticket transiting in
Auckland.

4
https://www.miq.govt.nz/being-in-managed-isolation/exemptions-from-isolation/exemption-from-transiting-
new-zealand/
5

https://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440311.html?search=sw_096be8ed81b47d9b_
transit_25_se&p=1#DLM1440311
3.2 A ticket to Auckland with a separate ticket to another destination is also a transit ticket.

3.3 On landing at Auckland transit passengers are asked to disembark first for simplicity.

3.4 If someone has changed their mind and is not transiting then they should wait until the
rest of the plane is called.

3.5 To check in for the first flight the entry requirements for the entire journey will likely be
confirmed. As such a traveller checking in at Sydney Airport en route to USA would need
to show an Esta, vaccination certificate etc..

4 Entering New Zealand

4.1 A person who has simply changed their mind (their intention) about continuing travel,
can then enter New Zealand.

4.2 Section 10(3) above refers to ‘permission’ to enter New Zealand under the Immigration
Act 2009. However this doesn’t apply to citizens as stated at Section 13(4).

4.3 Section 13 of the Immigration Act 20096 states:

13 New Zealand citizens may enter and be in New Zealand at any time

(1) For the purposes of this Act, every New Zealand citizen has, by virtue of
his or her citizenship, the right to enter and be in New Zealand at any time.

(2) However, to establish his or her right to enter New Zealand, a New
Zealand citizen must prove his or her citizenship and establish his or her
identity by complying with border requirements.

(3) Nothing in this Act (other than subsection (2)) abrogates the right
declared in subsection (1), and—

(a) no provision of this Act that is inconsistent with that right applies to
a New Zealand citizen; and

https://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440595.html?search=sw_096be8ed81b47d9b_
transit_25_se&p=1
 (b) no New Zealand citizen is liable under this Act to deportation from
New Zealand in any circumstances.

(4) Without limiting subsection (3), no New Zealand citizen—

(a) requires a visa or entry permission; or

(b) may hold a visa, or be granted entry permission, except a New

Zealand citizen who—

(i) is a national of 1 or more other countries; and

(ii) wishes to enter New Zealand other than as a New Zealand

citizen; and

(iii) has not been granted New Zealand citizenship, been

registered as a New Zealand citizen by descent under section
7(2) of the Citizenship Act 1977, or been issued with an
evidentiary certificate under section 21 of the Citizenship Act
1977 confirming that he or she is a New Zealand citizen.

4.4 In brief – a New Zealand citizen has the right

• to enter anytime

• doesn’t require any permission to enter

• cannot be deported

And therein lies the explanation of how the Government ran the entire system – by
using commercial operators to prevent being boarding in the first place – full well
knowing that if they did get to New Zealand they can’t be stopped coming in.

5 MIQ Requirements

5.1 The existence of Section 10(3) above clearly anticipates the possibility a ‘transit
passenger’ enters New Zealand.

5.2 If they do then Section 8, and the requirements for MIQ, are essentially ‘un’exempted.
5.3 That means a citizen no longer transiting and enters New Zealand is then in breach of
Section 8(2A) of the COVID-19 Public Health Response (Air Border) Order (No 2) 2020
because they don’t have an allocation.

5.4 The seriousness of not having an allocation is deemed ‘medium risk’ at Section 28 2(b)
of that Order7.

5.5 This states:

clause 8(2A) or (2B)(a) or 8B(1) or (2) is a medium risk offence:

5.6 The consequence of a ‘medium risk’ infringement is outlined in Section 5(2) of the
COVID-19 Public Health Response (Infringement Offences) Regulations 20218

5.7 This states the penalty is an infringement of $1000 for an individual.

5.8 It further states the maximum fine for a medium risk offence is $4000.

5.9 To understand the difference – as stated on the Police website9:

When you are issued a ticket (an 'infringement notice') the monetary penalty
recorded on it is called an 'infringement fee'. If the infringement fee is not paid in
full by the due date it is referred to the Ministry of Justice for enforcement, when it
becomes a 'fine'

5.10 An infringement is essentially an on the spot fine. Like bringing in fruit and getting
caught at customs.

5.11 If you pay it that is it. If you don’t pay it then it is referred to Court and can be increased.

5.12 You also have the option to seek it taken to Court and disputing the $1000 in the first
place.

https://www.legislation.govt.nz/regulation/public/2020/0239/latest/LMS612946.html?search=sw_096be8ed81b9
cf2f_infringement_25_se&p=1
8
https://www.legislation.govt.nz/regulation/public/2021/0393/latest/LMS600702.html
9
https://www.police.govt.nz/faq/whats-difference-between-infringement-fee-and-fine
5.13 For instance to say you may with to argue that you don’t understand why you are being
fined for entering your own country – when a foreign DJ can enter, break isolation rules,
and not be prosecuted.

5.14 An article on the Auckland District Law Society pages explains infringements here:

https://adls.org.nz/Story?Action=View&Story_id=423

5.15 A person does not need to appear in person on infringements they can have a lawyer
appear for them in their absence.

6 Is the New Zealand citizen returning home now a criminal?

6.1 No.

6.2 Of course not. It’s your country.

6.3 Convictions are not entered pursuant to Section 375(1)(a) of the Criminal Procedure Act
201110

375 Conviction not to be recorded for infringement offences

(1) If a defendant is found guilty of, or pleads guilty to,

an infringement offence (whether or not an infringement notice has been
issued), the court—

(a) must not convict the defendant; but

(b) may order the defendant to pay any fine and costs and may make any
other order that the court would be authorised to order or make as if the
court were able to convict a defendant of the offence.

(2) Every reference in this or any other Act, or in any secondary legislation, to a
conviction for an offence is, in relation to an infringement offence, deemed to
be a reference to—

10

https://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360592.html?search=sw_096be8ed81b66a95_
infringement_25_se&p=1&sr=7
 (a) an order that the defendant pay a fine and costs under subsection
(1)(b); or

(b) a deemed order that the defendant pay a fine and costs
under section 21(5) or (5A) of the Summary Proceedings Act 1957.

(3) However, sections 229, 244, and 246 do not apply to any deemed order
that the defendant pay a fine and costs under section 21(5) or (5A) of the
Summary Proceedings Act 1957.

(3A) This section applies to every infringement offence whether or not

there is an express reference to a conviction in the infringement offence
provision or in any provision specifying the penalty for
the infringement offence.

(4) Subsection (1) overrides any other provision of this Act or any other Act.

7 Is the traveller going to get roughed up

7.1 Immigration have no power to detain or arrest a person in these circumstances.

7.2 Immigration can only do so for the purposes of deporting someone pursuant to Section
310 of the Immigration Act 200911.

7.3 Regardless there is specific provision in the law for when a transit passenger changes
into a person entering New Zealand as above so that is what applies.

8 But isn’t MIQ full?

8.1 Of course it isn’t. They are still flying in foreign DJ’s in January so there is plenty of space
for Kiwis.

9 Disclaimer

9.1 The law is changing often. It is best to seek independent legal advice if you think you
may change your mind on your flight via New Zealand.

11

https://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1441101.html?search=sw_096be8ed81b47d9b_
detain_25_se&p=1