Login
‘Not a substitute’: Chief Justice responds to criticisms of GenAI ban
The NSW Supreme Court outlawed certain uses of generative artificial intelligence in courtrooms to prevent inaccuracies and “laziness” from entering the legal profession, Chief Justice Andrew Bell has said.
Naomi Neilson
From the start of 2025’s first law term, legal practitioners caught using generative artificial intelligence (GenAI) in affidavits, witness statements, and other evidentiary documents could be held in contempt of court and will have the material tossed out.
During a briefing on the court’s new practice note, introduced late last month, Chief Justice Bell said he was most concerned with ensuring that “hallucinations” – being the generation of apparently plausible but inaccurate references – are kept out of courtrooms.
“We simply can’t have inaccuracy, and dare I say laziness, enter the profession. It is not satisfactory, and it won’t be tolerated by the Supreme Court,” Chief Justice Bell said on Monday (2 December).
“Judges are entitled to expect counsel and solicitor advocates to only present cases [that] are relevant and in fact exist, so we’re making no apologies for that, and I don’t think anyone should think we should.”
The use of GenAI to scour documents subject to non-publication and suppression orders has been completely prohibited.
Expert reports can still utilise these programs, but legal practitioners must first be given leave of the court. Similarly, written submissions will need to have their accuracies verified, and practitioners will be held accountable for any professional or ethical breaches.
Chief Justice Bell said that while there are “many, many advantages and benefits” to GenAI, this stage of its maturity means there are also real risks and limitations that could impact a legal practitioner’s critical thinking, ethical restraints and obligations.
“People can get excited by the technology … but it is not a substitute for people who are given the title of lawyer and are admitted to practice, bringing their own independent mind to what they do and their own moral commitment to abide by the undertakings they make when they are admitted to practice,” Chief Justice Bell said.
Most of the controversy has been around the practice note’s ban on closed-source language models, where the user can ensure any information inputted into the dataset cannot be uploaded onto large language model databases that can be accessed by anyone.
While Chief Justice Bell said there were some benefits in closed-source models – and specifically when it comes to scouring large volumes of documents for information – there was no guarantee that information from one proceeding would not be shared with another.
For example, Chief Justice Bell said he was concerned one lawyer would use the closed-source model for their particular proceedings and that information would be within the dataset when the next lawyer used the source for an entirely separate proceeding.
“I am certainly open to persuasion about this,” Chief Justice Bell said.
“It may be the ability exists to ensure the quarantining of data for the use only in the particular proceedings and there are mechanisms in place to prevent it from being added to the underlying library of data, and there are effective quality assurances there. Then there can be no objection to the generative AI in that context.”
Chief Justice Bell said the rule of law was at the forefront of the ban, and it was critical that legal practitioners and judges continue to bring their own human minds to the administration of justice.
“There is a potential slippery slope with GenAI. I’m not a dinosaur, I don’t think of myself as a dinosaur, but I am cautious and conservative about this,” Chief Justice Bell said.
“The element of the human being in the administration of justice is a very, very fundamental consideration, and that’s why I prefer to err on the conservative side.”
Due to the “rapidly developing nature” of GenAI, Chief Justice Bell said the practice note would be reviewed often.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
