The NSW Supreme Court Practice Note SC Gen 23 is effective from 3 February 2025. The Practice Note bans the use of Generative AI in the preparation of affidavits, witness statements, character references or other material that is intended to reflect the deponent or witness’ evidence or opinion.
It also bans the entry of any prompt or search terms into a Generative AI that are confidential to the proceedings, as the entry of the prompt is considered a disclosure to a third party.
Any affidavit, witness statement or character reference must contain a disclosure that Generative AI was not used in generating its content.
Further, a recent case in the General Federal Law Division of the Federal Circuit and Family Court of Australia, Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95 (31 January 2025), has highlighted the risks of relying on GenAI in legal submissions.
After reportedly facing time constraints and health issues, a lawyer used ChatGPT to generate an outline of submissions, but made the grave error of failing to verify the AI-produced citations. When errors surfaced, attempts to correct the submissions came too late, leading Judge Rania Skaros to refer the matter to the NSW Legal Services Commissioner. Judge Skaros said,
“The conduct of the ALR, in filing an application and submissions which contained citations to Federal Court of Australia cases which do not exist and alleged quotes from the Tribunal’s decision which do not exist, falls short of the standard of competence and diligence that the applicant in the substantive proceedings was entitled to expect from his legal representative. The conduct also falls short of a legal practitioner’s duty to the Court, including the duty to ensure that the Court is not deceived or mislead, even if unintentionally: r 19.1 of the Conduct Rules” (at [18]).
The submissions were drafted prior to the NSW Supreme Court’s announcement in November 2024 to impose restrictions on the use of Generative AI.
This incident serves as a crucial reminder that while AI tools may boost efficiency, legal professionals must exercise due diligence to ensure accuracy and adhere to established protocols. As generative AI continues to evolve, so too must our strategies for integrating it responsibly into legal practice.
Can we expect bans on the use of GenAI in other jurisdictions?