Press secretary case raises questions for police and officials
The disturbing allegations have sparked a review of vetting processes and questions about the adequacy of our laws, writes Catherine McGregor in today's extract from The Bulletin.
Allegations prompt questions about police, Beehive processes
The fallout from serious allegations against Michael Forbes, the prime minister's now-former deputy chief press secretary, continued on Thursday, following a damning Stuff investigation released the night before. Forbes resigned on Wednesday after journalist Paula Penfold put to him allegations that he had taken non-consensual recordings and photos of women, including sex workers, in various settings. His phone reportedly contained covert recordings of sexual encounters, images of women at the gym and supermarket, and photos taken through windows – including one of an unclothed, unconscious or asleep woman. Forbes apologised for his actions and said he had sought professional help last year.
The allegations have sparked widespread concern, with questions raised about the adequacy of the law, the Beehive's vetting processes, and why no criminal charges were laid.
Legal grey areas highlighted by lack of charges
Despite the disturbing nature of the allegations, police concluded the behaviour did not meet the threshold for prosecution. On the allegation involving an image of an unclothed, unconscious woman, AUT law lecturer Paulette Benton-Greig told Checkpoint it 'certainly seems to me that [it] could have been chargeable' under existing laws about intimate visual recordings taken without the subject's consent.
But as legal academic Cassandra Mudgway explained in the Conversation, republished on The Spinoff, current law does not cover covert audio recordings, nor most intrusive photographs taken in public spaces. This gap in legal protections has prompted calls for reform, including from the sex workers who brought Forbes' behaviour to public attention. Justice minister Paul Goldsmith said the discussion could be had, but he 'wouldn't underestimate that that's a big change' to what is settled law.
Vetting processes under review
The investigation into Forbes' behaviour began in July 2024, months after he had been vetted for his job with minister Louise Upston, and before he was later appointed to the PM's press team, report The Post's Thomas Manch and Kelly Dennett (paywalled). Despite having a security clearance that required disclosure of any subsequent police contact, Forbes did not tell his superiors about the investigation. 'That didn't happen,' Luxon said on Thursday, describing himself as 'incredibly concerned' about the revelations and acknowledging the 'distress' among Beehive staff.
The Department of Internal Affairs has launched an urgent review into the vetting processes and whether inter-agency systems failed. Luxon, while emphasising the importance of police independence, called it a 'fair' question to ask how such a case could go unnoticed by senior officials and decision-makers.
Why didn't police inform the Beehive?
That question has taken on new urgency amid confusion over why the police never alerted the Beehive. Police seized Forbes' phones and interviewed him, but ultimately decided no offence had been committed, report Manch and Dennett in a separate story (paywalled). Commissioner Richard Chambers said under the 'no surprises' convention with ministers, it is up to the commissioner of the day to decide what to escalate. However Andrew Coster, who was commissioner at the time, said he was never informed of the case.
Chambers first learned of the matter only this week when approached by Stuff, at which point he alerted the Department of Prime Minister and Cabinet. It seems that someone senior in the police may have dropped the ball, but Chambers wouldn't name names, only observing that 'it is important that police executive members alert their Commissioner to matters that may need consideration.'
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If that happens, there are several key areas to consider. Are covert audio recordings illegal? New Zealand law prohibits the non-consensual creation, possession and distribution of intimate visual recordings under sections 216H to 216J of the Crimes Act 1961. These provisions aim to protect individuals' privacy and bodily autonomy in situations where they have a reasonable expectation of privacy. The definition of 'intimate visual recording' under these sections is limited to visual material, such as photographs, video or digital images, and does not extend to audio-only recordings. As a result, covert audio recordings of sex workers engaged in sexual activity would fall outside the scope of these offences, even though the harm caused is similar. If such audio or video recordings were ever shared with others or posted online, that may be a criminal offence under the Harmful Digital Communications Act 2015 – if it can be proved this was done with the intention to cause serious emotional distress. What about covert filming of women in public places? Covert recording of women working out or walking down a road, including extreme closeups of clothed body parts, would unlikely meet the definition of 'intimate visual recording'. That is because they do not typically involve nudity, undergarments or private bodily activities, and they often occur in public places where there is no reasonable expectation of privacy. Even extreme closeups may not meet the threshold unless they are taken from beneath or through clothing in a way that targets the genitals, buttocks or breasts. While they are invasive and degrading, they may remain lawful. By contrast, it is more likely that covert filming of women dressing or undressing through a window would satisfy the definition, depending on where the women were. For example, were they in a place where they would have a reasonable expectation of privacy? If the non-consensual recording captures a person in a state of undress, then the creation of such images or videos could be considered a crime. Are any of these behaviours 'harassment'? Under the Harassment Act 1997, 'harassment' is defined as a pattern of behaviour directed at a person that involves at least two specified acts within a 12-month period, or a single continuing act. These acts can include following, watching, or any conduct that causes the person to fear for their safety. Although covert filming or audio recording is not expressly referenced, the acts of following and watching within alleged voyeuristic behaviour, if repeated, could fall within the definition. But harassment is only a crime where it is done with the intent or knowledge that the behaviour will likely cause a person to fear for their safety. This is a threshold that might be difficult to prove in voyeurism or similar cases. Covert recording of women's bodies, whether audio or visual, is part of a broader pattern of gender-based violence facilitated by technology. Feminist legal scholars have framed this as 'image-based sexual abuse'. The term captures how non-consensual creation, recording, sharing or threatening to share intimate content violates sexual autonomy and dignity. This form of harm disproportionately affects women and often reflects gender power imbalances rooted in misogyny, surveillance and control. The concept has become more mainstream and is referenced by law and policymakers in Australia and the United Kingdom. Has New Zealand law kept up? Some forms of image-based sexual abuse are criminalised in New Zealand, but others are not. What we know of this case suggests some key gaps remain – largely because law reform has been piecemeal and reactive. For example, the intimate visual recording offences in the Crimes Act were introduced in 2006 when wider access to digital cameras led to an upswing in covert filming (of women showering or 'upskirting', for example). Therefore, the definition is limited to these behaviours. But the law was drafted before later advances in smartphone technology, now owned by many more people than in 2006. Generally, laws are thought of as 'living documents', able to be read in line with the development of new or advanced technology. But when the legislation itself is drafted with certain technology or behaviours in mind, it is not necessarily future-proofed. Where to now? There is a risk to simply adding more offences to plug the gaps (and New Zealand is not alone in having to deal with this challenge). Amending the Crimes Act to include intimate audio recordings might address one issue. But new or advanced technologies will inevitably raise others. Rather than responding to each new form of abuse as it arises, it would be better to take a step back and develop a more principled, future-focused criminal law framework. That would mean defining offences in a technology-neutral way. Grounded in core values such as privacy, autonomy and consent, they would be more capable of adapting to new contexts and tools. Only then can the law provide meaningful protection against the evolving forms of gendered harm facilitated by digital technologies.
