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AI ban in NSW courtrooms bends to pressure
With just under a week before the NSW Supreme Court’s GenAI ban comes into effect, the Chief Justice has issued an amendment that has addressed some criticism raised by the state’s legal practitioners.
Naomi Neilson
At a briefing last December, legal practitioners questioned Chief Justice Andrew Bell about a section of the generative AI (GenAI) practice note that placed a blanket ban on using open- or closed-sourced programs to scour material that falls under a non-publication or suppression order.
Chief Justice Bell was concerned that suppressed material could be used to train large language models or would not be confined to a proceeding. For example, a law firm’s closed-source program may not be able to quarantine material, allowing information to transfer between matters.
However, Chief Justice Bell said he was “open to persuasion”.
Following issues raised with him “both in writing and at the briefing”, Chief Justice Bell has released an amendment to the practice note that would allow the suppressed material to be uploaded onto a GenAI program, provided certain conditions have been met.
The legal practitioner “or person responsible for the conduct of the proceeding” must be satisfied the material would remain “within the controlled environment of the technological platform” and is subject to confidentiality restrictions to ensure data is not made publicly available.
The material must also be used “only in connection with that proceeding” – but this would not apply if the material is required or permitted by law to be disclosed or reviewed by law enforcement.
For the “avoidance of doubt”, the amended practice note sets out a GenAI program can be used for the generation of chronologies, indexes, and witness lists; preparation of briefs or draft Crown case statements; to summarise or review documents and transcripts; and to prepare written submissions or summaries of arguments.
The latter is subject to verification to ensure all citations are accurate.
“The Chief Justice is grateful to members of the profession for their interest in and contribution to the development of this practice note,” the Chief Justice said in a statement released earlier this week.
Wotton Kearney’s managing partner of causality and operations, Charles Simon, said the practice note “strikes the right balance between delivering efficiency and ensuring privacy and integrity”.
“By ensuring private AI solutions are used for certain tasks, the court’s message is clear: enhanced security to protect privacy is paramount as is the role of the lawyer in the process to verify the output and maintain the integrity of legal process,” Simon said.
When the practice note was first issued late last year, the immediate past president of the Law Society of NSW, Brett McGrath, said it was “a historic step” for the court in addressing the integration of AI.
“The obligations imposed by the practice note will help protect litigants, the broader community and the justice system itself from the limitations of AI tech,” McGrath said.
Barrister Elarya George also told Lawyers Weekly that the practice note would not be a complete ban of AI in NSW courtrooms, but would allow for the law to maintain its integrity.
“The advocate or self-represented litigant can use AI to assist them with research. However, they should verify the information that is being relied on to assist the court [in] determining the matter,” George said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
