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NSW’s top judge warns of AI-driven ‘historical revisionism’
As generative AI continues to reshape industries worldwide, the Chief Justice of the NSW Supreme Court has expressed his measured yet cautious perspective on the role of this technology in legal practice.
Grace Robbie
During his compelling address at the NSW Law Society’s Opening of Law Term Dinner, Chief Justice Andrew Bell deliberated on the evolving role of artificial intelligence within the legal profession, highlighting concerns over misinformation and the ethical challenges it presents.
In the same speech, His Honour also professed his grave concern for the “distressing and terrifying rise” in anti-Semitic activities across Australia.
A key issue Bell CJ addressed was the recent controversy surrounding the Chinese-designed generative AI (GenAI) platform DeepSeek and its reported failure to generate responses or provide accurate information on sensitive topics.
“The recently released Chinese-designed GenAI platform DeepSeek has been criticised for the fact that, according to reports, it will not generate any response or accurate response when questioned, for example, about Tiananmen Square or human rights issues which might reflect poorly on China,” His Honour said.
While acknowledging these concerns, His Honour cautioned against assuming that such issues are exclusive to DeepSeek or China. Instead, he highlighted the broader risks of AI-driven “historical revisionism” and the potential for misinformation to flood the databases upon which AI models rely.
“But we should not be so naïve or parochial to think that this particular example is confined to that platform or platforms developed in that country nor that far more insidious control of underlying information may not be used to promote historical revisionism through floods of misinformation and disinformation populating the databases upon which various platforms draw,” Bell CJ said.
Despite these concerns, His Honour acknowledged the significant potential and transformative impact of GenAI across various fields.
“I am not unalive to its great potential as a result of the operation of immense computing power, the ability to search vast tracts of information and its positive potential applications in areas such as medical diagnostics, engineering and other scientific applications,” His Honour said.
Nonetheless, when it comes to its application in the legal profession, Bell CJ has adopted a measured and cautious stance.
“As most of you know, however, I have taken a deliberately cautious and conservative but, I hope, nuanced approach to the use of GenAI by the legal profession in New South Wales,” Bell CJ said.
His Honour reinforced his cautious position by citing recent incidents in Australia where GenAI had been irresponsibly used in legal proceedings.
“There were at least three cases within the last 12 months where GenAI was used by practitioners or litigants in Australia in an entirely unsatisfactory way, including the citation of non-existent fabricated case references and transcript extracts and the artificial generation of a character reference,” His Honour said.
Bell CJ emphasised that legal practitioners must remain a “critical, thinking profession” bound by ethical obligations in how information and evidence are presented in court.
“The legal profession is and should be a critical, thinking profession. Its members are subject to important, well-known ethical constraints and obligations in relation to how information and evidence is presented to courts and deployed in the administration of justice. Any regulation of GenAI must bear those matters uppermost in mind,” His Honour said.
His Honour affirmed that legal practitioners in NSW must strictly adhere to the regulations governing the use of generative AI and warned that the courts will not be lenient towards those who fail to comply.
“The obligations on practitioners in New South Wales with regard to the use of GenAI are clear, and I would not expect the courts to be sympathetic to practitioners who do not abide by clear guidance given in the Practice Note,” Bell CJ said.
