The Australian Federal Police Commissioner Tony Negus has confirmed that up to five MPs have had their call records reviewed by law enforcement officers in the AFP, but has refused to say whether any MPs have had their calls tapped.
Law enforcement authorities in Australia can gain access to so-called metadata from telecommunications companies through internal authorisation, which does not require judicial oversight. The metadata can contain the phone numbers, times of calls, and information on the location the call was made.
Under questioning from Independent Senator Nick Xenophon on Monday, Negus initially refused to say the number of MPs that have their own records accessed by the AFP stating it was "operational details" but then clarified that it was less than five MPs.
He also refused to state whether any MPs' phone calls were currently, or had previously been intercepted by the AFP.
"If I tell you that one person may have been or is currently being then that one person may well be alerted to what is actually occurring in the context of committing a criminal offence," he said.
"As you well know, there are significant thresholds and safety nets here. The AFP must apply to a judicial authority to get permission for a warrant. These are very high and very well protected thresholds. There has to be sufficient information that can convince a judge or member of the AAT [Administrative Appeals Tribunal] that have sufficient grounds to issue what is a quite intrusive power. As I said, those thresholds are well understood and all contained in the telecommunications act."
Although Negus would not disclose who it had investigate, it is public knowledge that in the 43rd Parliament, the AFP was called in to investigate the leak of an embarrassing video of the former Prime Minister Kevin Rudd, as well as controversies surrounding former Labor MP Craig Thomson, and the former speaker Peter Slipper.
The access of metadata by government agencies without judicial oversight has been increasingly controversial, after agencies had sought to force telecommunications providers to keep the data for up to two years. The former government had not yet acted on recommendations of a parliamentary review of the proposal, and Attorney-General George Brandis would not confirm prior to the election whether the party would seek to bring in new mandatory data retention laws.
For the 2011-2012 financial year, over 40 government agencies made 293,501 requests for metadata from ISPs. The Attorney-General's Department has not yet published the data for the 2012-2013 financial year, but ZDNet has sought access to the Telecommunications Interception Act report.
The AFP confirmed in the Estimates hearing this week that it made 56,898 requests for the 2012-2013 financial year, and received 25,726 authorisations. This was up from 43,362 requests, and 23,000 authorisations in the 2011-2012 financial year.
It comes as Prime Minister Tony Abbott is facing increasing pressure from the Indonesian government to apologise for the Australian Signals Directorate allegedly tapping the phones of Indonesian President Susilo Bambang Yudhoyono and a number of members of the Indonesian government in 2009.
Abbott told the Parliament that he regrets the embarrassment that the release of the information has caused, but declined to apologise to the Indonesian government.
"Australia should not be expected to apologise for the steps we take to protect our country now or in the past, any more than other governments should be expected to apologise for the similar steps that they have taken," he said.