AFP says data from raid on journalist could be used despite High Court decision

While the data taken during the raid had been quarantined, the force was seeking legal advice on whether it could be used to prosecute journalist Annika Smethurst, Commissioner Kershaw said.

"Speculating on that wouldn't be right. But there's a difference between, I guess, illegally obtaining evidence and admissible evidence and that's a question we have asked our in-house legal team."

While the full bench of the High Court on Wednesday found the search warrant wasn't valid and should be quashed, the judges were torn on whether the Australian Federal Police should have to destroy material seized during the search.

Two justices argued the police should have to destroy the data and therefore not use it.

But the majority disagreed, saying the data could disclose criminal conduct and no specific right would be protected by doing so.

An internal board set up to review sensitive cases is set to report back in weeks whether cases against Ms Smethurst and a separate matter against journalists at the ABC should continue.

Commissioner Kershaw said it was unlikely the Federal Police would execute a search warrant under the same offence again.

"We have added additional measurements and governance in relation to these matters, given the fact they carry a national security implication and they're sensitive matters," he said.

The raid on the home of Ms Smethurst was part of an investigation into the source for a newspaper article published in April 2018 about plans to expand the powers of the Australian Signals Directorate to include Australian citizens as targets.

The judgment by the full bench unanimously held that the warrant for the raid misstated the substance of the relevant section of the Crimes Act, and that it did not state the offence to which it related with sufficient precision.

Smethurst and her employer News Corp took the case to the High Court, asking the warrant be declared invalid and also that the material taken during the raid on June 4 last year be ordered to be deleted.

The court did not consider whether the Australian Federal Police raid infringed on implied freedom of political communication.

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The news article cited memos classified "secret" and "top secret".

Home Affairs secretary Mike Pezzullo said in a parliamentary hearing the information had been leaked as part of a "Canberra game" and the person responsible should go to jail.

In a statement News Corp executive chairman Michael Miller said the High Court's ruling sends an indisputable message.

"All Australians should be extremely concerned that a journalist's home can be raided illegally," he said.

"It's now vital that the federal government must allow media organisations to contest warrants against journalists to avoid debacles like this one occurring again."

Communications Minister Paul Fletcher said the decision shows all governments are subject to the rule of law.

"In executing a search warrant, the Australian Federal Police need to comply with the rule of law and they are ultimately subject to the oversight of the courts,"he said.

"That's a key element of the way that our liberal democracy operates. It is a key element of the press being able to do their jobs."

Shadow attorney general Mark Dreyfus called for the government to rule out prosecuting Ms Smethurst and ABC journalists also under investigation.

The AFP has been ordered to pay court costs.

- With AAP