Abhishek Khare

The Supreme Court of New South Wales (NSW), Australia’s largest state, has imposed strict regulations on the use of generative artificial intelligence (Gen AI) in court proceedings. Lawyers are prohibited from using Gen AI to draft affidavits, witness statements, and expert reports, ensuring that legal documents reflect human knowledge and expertise. The new directive, issued by Chief Justice Andrew Bell, highlights concern about AI's role in altering evidence and emphasizes the importance of accuracy and authenticity in legal documentation.

Key Insights

1. Prohibition on AI in Affidavits and Witness Statements: Lawyers must ensure that affidavits, witness statements, and character references are entirely human-written. AI-generated content cannot be used to modify, enhance, or rephrase a witness’s evidence in written form. All affidavits and witness statements must include a disclosure confirming that Gen AI was not used.
2. Limited AI Use in Annexures and Exhibits: With judicial approval, Gen AI may be used to assist in preparing annexures or exhibits submitted as part of evidence. This exception ensures that AI can aid in technical or documentary support but not in the core evidentiary aspects.
3. Restrictions on AI in Legal Submissions: Lawyers are allowed to use Gen AI for drafting written submissions or argument summaries. However, they must personally verify all citations, case laws, and references, as AI-generated citations have previously led to misinformation in courts.
4. Ban on AI in Expert Reports: AI cannot be used to generate or draft expert reports, as these documents must solely express an expert’s independent professional opinion.
5. Judicial Restrictions on AI: Judges in NSW courts are prohibited from using Gen AI in drafting judgments, analysing evidence, or proofreading judicial decisions. This measure ensures that judicial reasoning remains free from AI-influenced alterations.
6. Regulatory Guidelines for Lawyers: Australian legal professional regulators advise lawyers to use AI only for low-end tasks. Overcharging clients for AI-generated work is prohibited. Lawyers are expected to understand AI’s capabilities and limitations to guide their clients appropriately.

Significance of the Ruling

This ruling highlights, a growing global concern over the influence of AI in legal proceedings, emphasizing the need for authenticity, accuracy, and professional accountability. The decision aligns with broader legal ethics principles that safeguard the integrity of judicial processes by ensuring that evidence and expert opinions are purely human-derived.

The move also has implications beyond Australia. In India, where courts are increasingly leveraging AI for legal research and administrative tasks, similar discussions about AI’s role in evidence submission and legal drafting are likely to emerge. The NSW directive serves as a potential model for balancing AI efficiency with ethical considerations in legal practice worldwide.

Future Impact and Conclusion

The NSW ban on AI in legal documentation highlights the broader challenges of integrating AI into the judicial system. While AI can improve efficiency, its potential for introducing errors and undermining evidentiary integrity necessitates strict oversight. Future regulations may evolve to allow AI-assisted legal drafting under stringent verification standards, striking a balance between technological advancement and legal ethics.

Ultimately, this ruling reinforces the principle that human expertise must remain at the core of legal proceedings. As AI capabilities expand, legal frameworks worldwide, including in India, will need to adapt while ensuring that justice is not compromised by automation.