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Following the NSW Supreme Court’s GenAI practice note, which initially drew criticism from members of the profession, the Land and Environment Court has reissued its own set of guidelines.
The Land and Environment Court (LEC) recently updated a November 2024 practice note to acknowledge the various benefits of generative artificial intelligence (GenAI) in preparing for proceedings.
Much like the NSW Supreme Court’s new practice note, the LEC has noted GenAI can be used for the generation of chronologies, indexes, and witness lists and may be a useful tool for summarising and preparing briefs or other written submissions.
However, where this has occurred, the author “must verify in the body of the submissions, summaries or skeleton that all citations, legal and academic authority and case law and legislative references” exist, are accurate, and are relevant to the proceedings.
Using GenAI also “does not … absolve the author(s) of any professional or ethical obligations to the court or administration of justice”.
The practice note has prohibited GenAI’s use of information that is subject to the Harman undertaking, or non-publication and suppression orders. It must also not be used to generate the content of affidavits, character references, or witness statements.
As for expert witnesses, GenAI must not be used to draft or prepare any part of the report without prior leave of the court.
Last December, NSW Chief Justice Andrew Bell warned against having inaccuracy or “laziness” enter the legal profession.
He was particularly concerned about “hallucinations”, being the generation of apparently plausible, authoritative and coherent responses “but which are in fact inaccurate or fictitious”.
“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,” he said.
In the original practice note, the NSW Supreme Court prohibited the use of open- and closed-source language models, even where firms have invested in building their own.
Chief Justice Bell was concerned that suppressed material could be used to train large language models and would not be confined appropriately.
However, following some criticisms, Chief Justice Bell released an amendment shortly afterwards to allow suppressed material to be uploaded onto a closed program, provided certain conditions were met.
“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.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
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