Prime Minister Christopher Luxon and former press secretary Michael Forbes (left). Photo / Mark Mitchell
Prime Minister Christopher Luxon and former press secretary Michael Forbes (left). Photo / Mark Mitchell
Opinion by Thomas Coughlan
Thomas Coughlan, Political Editor at the New Zealand Herald, loves applying a political lens to people's stories and explaining the way things like transport and finance touch our lives.
A Stuff investigation found the Prime Minister’s former deputy chief press secretary Michael Forbes allegedly recorded audio of multiple sessions with Wellington sex workers.
Christopher Luxon said the Department of Internal Affairs will do a ‘deep dive’ to see what can be done to improve process.
Forbes resigned on Wednesday.
Prime Minister Christopher Luxon was understandably fuming yesterday when he fronted up to media about his former deputy chief press secretary Michael Forbes.
He announced there would be a “deep dive” investigation led by the Department of Internal Affairs into the “inter-agency” questions raisedby the scandal, and whether there should be any changes to the way people maintain their security clearance.
The issues raised by the case can only be got at by a summary of the facts:
According to a Stuff investigation, Forbes allegedly recorded audio of multiple sessions with Wellington sex workers, and amassed a gallery of women working out at the gym, shopping, and filmed through a window getting ready to go out.
Last July, police received a complaint from a Wellington brothel after images were found on a client’s phone.
Police interviewed Forbes as part of the investigation, but decided the case did not meet the threshold for prosecution.
And there things ultimately stayed until women at the heart of the case spoke to Stuff, bringing the story into the public domain and triggering Forbes’ resignation on Wednesday.
There are two obvious bureaucratic failings here: the first is to do with Forbes’ security clearance, the second is to do with the operation of the ‘no surprises’ convention.
The issue of Forbes’ security clearance is by far the more serious.
Many (maybe most) staff working in Beehive offices are required to get a security clearance in order to work there.
These staff handle highly sensitive documents daily and it is prudent to ensure that they can be trusted to do so.
The clearance checks are undertaken by the NZSIS, which provides them to “customers” (agencies) from across the public service, including the likes of MFAT, and the Department of Internal Affairs, the Ministry that is responsible for employing staff like Forbes in ministerial offices.
The NZSIS will recommend a clearance (or not) to someone’s agency, but it is the agency itself which decides whether to grant it.
There are four levels of clearance: confidential, secret, top secret, and top secret special.
The agency will decide what level of clearance it thinks is required, but the level is typically kept secret. Not even colleagues will necessarily know each others’ security clearance.
If you’re in your mid-20s or older and living in Wellington, security clearance is likely to be the bane of your life, or the bane of someone that you know.
Michael Forbes pictured during Christopher Luxon's visit to India. Photo / Marika Khabazi, RNZ
The clearances cover not just the people working in the Beehive, but a good number of people at other sensitive agencies like DPMC, too.
Clearance requires filling out a long and invasive questionnaire (four to five hours for top secret) detailing both the very innocuous and the very personal (detailing things like whether you’ve ever smoked a joint? - plenty of people have, but do they all want to disclose it to the spooks?).
Depending on the level of clearance, the process takes in flatmates and other acquaintances.
As many young political staff are not living on their own, but in large houses with a large number of flatmates, the process can require disclosing a lot about yourself, the many people you know and live with, and occasionally getting those people to disclose a lot too.
One of the main reasons that this sort of stuff is requested and disclosed is not because having a few joints during your university days automatically turns you into a Russian agent, but that untidy aspects of someone’s personal life can make them vulnerable to blackmail.
That could turn a reliable person into a potential security risk (there is no evidence that is the case here).
The investigations can take months, particularly when there is a change of government and a whole lot of new political staff require vetting. The median time for a top secret clearance was 52 days in the 2023/24 year.
According to Luxon’s comments yesterday, Forbes was vetted when he first went to work in the Beehive, for Social Development Minister Louise Upston. But he does not appear to have been vetted again upon going into the Prime Minister’s office. His level of clearance is not known.
Clearances when granted don’t simply stay granted, however. They are typically reviewed every five years (unless the NZSIS has cause to intervene earlier). That interval appears to have been too long in this case.
The NZSIS does not continuously investigate people, instead they require continuous disclosure from people with clearance.
In plain English, continuous disclosure means that as your circumstances change, you are required to continuously disclose those changes to the agencies.
If you take out a mortgage, if you get a new flatmate, if your sibling moves to a foreign country, and yes, if you are investigated by the police, you must disclose it to the agencies.
You even need to disclose your holiday travel plans (if you’ve ever thought about holidaying in China, do it before getting clearance).
None of these things automatically preclude you from keeping your clearance, but they need to be disclosed so that they can be managed.
Luxon’s remarks that Forbes did not disclose the police investigation “to us [the Government]” suggests he did not disclose the investigation as part of maintaining his clearance.
This would itself be a breach of the conditions of keeping his clearance, but of course no one knew about it so no one did anything.
Prime Minister Christopher Luxon speaking about Michael Forbes. Photo / Mark Mitchell
A spokesperson for the NZSIS described the process to the Herald saying: “[t]here are clear obligations on security clearance holders to report to their sponsoring agency any information which may be relevant to their ongoing suitability to hold a clearance, and to allow any risks to be managed”.
“Sponsoring agencies also have responsibilities to ensure their clearance holders adhere to the obligations of holding that clearance,” they said.
There is absolutely no evidence that anything problematic relating to Forbes’ clearance happened in this case, but Luxon is probably right to express exasperation, because the case has exposed an obvious and potentially dangerous flaw in the system.
The agencies need to know about issues like this because these issues make people with access to sensitive information vulnerable to potential influence.
What could be done to fix it is not immediately clear.
Requiring the NZSIS to constantly monitor and investigate staff with clearance is not just impractical, it’s unethical and possibly unconstitutional. No one wants to turn the NZSIS into a KGB.
There’s one obvious area for change.
Luxon spoke of fixing the “interagency processes”, which both respect the independence of police, but strengthen the clearance process.
An obvious question to ask is whether a police investigation of someone with a security clearance can or should automatically get flagged at the NZSIS.
That’s probably easier said than done.
Do you want the police to have knowledge of everyone with a clearance in order to raise a red flag whenever someone crosses their path?
Or does the NZSIS need to have knowledge of every complaint laid with the police to ensure they don’t relate to someone with clearance?
Neither option seems practical and the latter raises some ethical questions.
Changes are probably wise and inevitable, but they won’t be simple.
A much easier issue is the apparent ‘no surprises’ breach.
Neither the current nor the former police commissioner (who was commissioner at the time of the complaint) knew about the investigation, but it was known to the police executive.
The executive should have flagged that further, telling ministers under the ‘no surprises’ issue.
The ‘no surprises’ rule is pretty simple. It requires officials to tell ministers about significant or controversial matters in their portfolios.
This was clearly such a matter and the ministers deserved to be informed.
In fact, Chambers acknowledged this by deciding to elevate it to the Police Minister as soon as he found out this week.
In a statement to the Herald, Chambers said he was “first made aware of the issue late on Tuesday afternoon after a media inquiry”.
“I immediately contacted the Department of Prime Minister and Cabinet and subsequently informed the Police Minister under the ‘no-surprises’ practice.
“It was raised with the police executive in July 2024, during the investigation into the complaint. It was not brought to the attention of ministers or Ministerial Services at the time.”
