NSW Chief Justice Andrew Bell bans AI use for evidence documents

Andrew Bell of NSW has issued a sweeping direction effectively banning lawyers from using artificial intelligence to create crucial evidence papers.

NSW Chief Justice Andrew Bell. Picture: supplied

The top judge of Australia’s largest jurisdiction has issued a sweeping direction effectively banning lawyers from using artificial intelligence to create crucial evidence papers, and requiring them to add a disclaimer declaring they have not used AI to develop the document.

NSW Chief Justice Andrew Bell has also declared judges are not permitted to use AI to formulate reasons for judgments or to edit draft judgments, and has instructed them to remain “astute to identify any undisclosed use of Gen AI in court documents” filed by parties before them.

The Chief Justice made the edicts in two separate practices notes released this week – one for practitioners, and a second for judges. A practice note is a document used to provide directions on particular aspects of how the court expects proceedings to be run.

In the note to practitioners, Chief Justice Bell said artificial intelligence must not be used in generating the contents of affidavits, witness statements, character references or other material that reflects a witness’s evidence or is to be used in cross-examination.

“Affidavits, witness statements, character references should contain and reflect a person’s own knowledge, not AI-generated content,” he said. “Gen AI must not be used for the purpose of altering, embellishing, strengthening or diluting or otherwise rephrasing a witness’s evidence when expressed in written form.”

Australia’s courts have been grappling with the advent of AI over the past 18 months as the technology continues to infiltrate the courtroom.

In February, an ACT Supreme Court judge dealt with the first known case of AI in court, when the brother of a man found guilty used ChatGPT to write a character reference for him.

Last month a Melbourne lawyer was referred to the legal watchdog after he was caught citing fake AI-generated cases in a family court matter, causing a hearing to be adjourned.

In his practice note, Chief Justice Bell said that if AI was used to create written submissions or summaries of an argument, a lawyer must be careful to ensure all citations “exist, are accurate and are relevant to the proceedings”.

NSW is just the latest jurisdiction to release a practice note of this kind, with Victoria and Queensland releasing similar guidelines earlier this year.

In Victoria, parties are required to tell one another of any assistance provided by AI when preparing a case. In Queensland, lawyers are similarly encouraged to disclose any AI involvement.

But Chief Justice Bell will require lawyers to include a disclosure in affidavits, witness statements and character references that AI was not used, including “by way of altering, embellishing, strengthening or diluting or rephrasing a witness’s evidence”.

“For the avoidance of doubt, the deponent of the affidavit, witness statement or character reference is not required to make the disclosure ... where the annexure or exhibit has not been prepared or created for the purposes of the proceedings,” the practice note reads.

Expert reports are not to be prepared using AI, the Chief Justice said, without prior permission from the court.

“Expert reports are required to state the opinion or opinions of the expert, and his or her reasoning process,” the practice note reads. “Gen AI must not be used to draft or prepare the content of an expert report (or any part of an expert report) without prior leave of the court.”

For judges, AI should only be used for secondary legal research purposes, the Chief Justice said, however judges should be aware of AI “hallucinating” fake case citations.

Judges should also be aware of the fact that “any search requests or interactions or prompts with a Gen AI chatbot may, unless disabled, be automatically added to the large language model database, remembered and used to respond to queries from other users”.

“The product of all Gen AI-generated research, even if apparently polished and convincing, should be closely and carefully scrutinised and verified for accuracy, completeness, currency and suitability before making any use of it,” Chief Justice Bell said. “Gen AI research should not be used as a substitute for personal research by traditional methods.”

The practice notes will come into effect from the beginning of the 2025 law term on February 3.