Background
On November 21, 2024, Chief Justice A.S. Bell of New South Wales issued Practice Note SC Gen 23, providing specific directives and regulations on the use of generative artificial intelligence (Gen AI) in legal proceedings within New South Wales. This Practice Note took effect on February 3, 2025, aiming to regulate the use of AI by legal practitioners and self-represented litigants while safeguarding the integrity of judicial processes. Additionally, the Guidelines for NSW Judges in Respect of the Use of Generative AI were released, outlining the requirements for judges in applying AI within judicial practice.
These two guiding documents were developed in consultation with the Law Society of New South Wales and the New South Wales Bar Association, drawing on practices from other jurisdictions regarding AI use. They fully reflect both the opportunities and risks associated with Gen AI in the legal field.
Key Provisions of Practice Note SC Gen 23
- Effective Date and Scope of Application
Practice Note SC Gen 23 applies to all cases in New South Wales courts from February 3, 2025. It regulates the application of both closed-source and open-source large language models (Gen AI) in legal proceedings.
- Definition of AI Tools
Gen AI includes tools capable of creating new content based on training data, such as ChatGPT, Claude, and specialized legal tools like Lexis Advance AI. The Practice Note SC Gen 23 excludes only technical tools that assist with grammar, spelling, formatting, or other non-substantive adjustments.
- General Provisions
Information subject to non-disclosure or suppression orders, materials obtained through compulsory disclosure (including those covered by implied undertakings that cannot be used for purposes unrelated to litigation without court permission), materials provided under subpoena, or any materials subject to statutory non-disclosure provisions must not be input into any Gen AI tool.
- Affidavits, Witness Statements, or Other Evidentiary Materials
Gen AI must not be used to generate affidavits, witness statements, character references, or materials reflecting personal opinions or evidence. Witness statements and affidavits must reflect the witness’s own knowledge. If Gen AI is used in attachments or evidence, prior court approval and disclosure are required.
- Written Submissions and Case Summaries
When using Gen AI, legal practitioners must manually verify the authenticity, accuracy, and relevance of all citations (including legal cases and legislation). Professional and ethical responsibilities remain unchanged, regardless of whether Gen AI is used. Verification tasks cannot rely on Gen AI tools.
- Expert Reports
Expert reports must reflect the independent reasoning of the expert and disclose any use of Gen AI, including details of the tools, prompts, and relevant variables used. If Gen AI-generated content is included in an expert report, prior court approval is required, along with detailed documentation.
Guidelines for NSW Judges in Respect of the Use of Generative AI
- General Provisions
Judges must not use Gen AI to generate judicial decisions, edit documents, or analyze evidence. They must not submit documents or sensitive materials to Gen AI. Secondary research conducted through Gen AI is permitted only with caution and verification.
- Risks Associated with Gen AI
Judges must be aware of the following risks:- Gen AI may produce “hallucinations” or “fabricated outputs,” such as plausible but inaccurate or fictional content, including non-existent citations or incorrect legislation and case law.
- Training data may be biased or limited, potentially leading to results that are outdated or not applicable to the jurisdiction of New South Wales.
- Confidentiality and copyright issues may arise when interacting with Gen AI programs.
- Disclosure Requirements
Judges must require litigants or legal practitioners to disclose the use of Gen AI in submitted documents and ensure that such documents are verified for accuracy.
- Identifying Unsafe or Improper Use of AI
Judges should be alert to the following signs of improper Gen AI use:- Non-existent or inaccurate case law or legal citations.
- Incorrect, inapplicable, or outdated legal analysis or application.
- Use of language or expressions unrelated to the jurisdiction.
- Repetitive language or phrasing.
Summary
The release of these two guiding documents marks a significant step toward integrating AI technology into legal proceedings in New South Wales. They uphold professional legal standards while ensuring judicial fairness in the context of rapidly evolving AI technologies.
This initiative reflects a balanced approach, recognizing the instrumental value of Gen AI in enhancing legal efficiency, reducing costs, and optimizing processes, while also highlighting its limitations and risks, such as generating false information, confidentiality and privacy concerns, and potential copyright infringement.
Practice Note SC Gen 23 emphasizes transparency and accountability, requiring practitioners to disclose the use of Gen AI, particularly in critical legal documents like written submissions and expert reports. It mandates manual verification of all citations to ensure compliance with judicial standards. To preserve the integrity of legal documents and evidence, the Practice Note explicitly prohibits the use of Gen AI in sensitive legal materials, such as affidavits, witness statements, or other documents reflecting personal opinions. This ensures the authenticity of legal documents and evidence remains unaffected by technologically generated content.
By regulating the use of Gen AI, these documents not only promote cautious and professional use of AI technologies among legal practitioners but also provide crucial support in balancing judicial integrity with technological innovation.
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