Courts introduce Practice Notes on AI use in proceedings

The Supreme Court and Land and Environment Court have issued new near-identical Practice Notes to address the increasing use of generative artificial intelligence (Gen AI) in documents prepared or created for the purpose of proceedings.

Copies of the new practice notes (Practice Notes) can be found here and here, and will commence on 3 February 2025 to coincide with the opening of the 2025 Law Term.

These Practice Notes aim to bring clarity to this emerging area by outlining circumstances in which the use of Gen AI is unacceptable, and by imposing obligations upon practitioners and witnesses where Gen AI has been used.

In summary, the new Practice Notes:

• contain a general reminder about the implied (Harman) undertaking not to use information produced under compulsion for any purposes extraneous to the proceedings without the leave of the Court, which includes entering such information into any Gen AI program;
• prohibit the use of Gen AI in generating the content of affidavits, witness statements, character references, or other material intended to reflect the author’s evidence and/or opinion, or any other material tendered in evidence or used in cross-examination;
• require the author of written submissions, summaries, or skeletons of argument to insert a verification that all citations, legal and academic authority, and references to case law and legislation exist, are accurate, and are relevant to the proceedings;
• prohibit the use of Gen AI in drafting or preparing any part of an expert report without prior leave, and, where prior leave has been obtained, require the expert witness to disclose which parts were prepared with Gen AI and the program used, to keep records and identify in an annexure how Gen AI was used, and to identify any relevant code of practice or principles applicable to the use of Gen AI by that expert;
• require all legal practitioners and unrepresented parties to draw the requirements of the relevant Practice Note to the attention of experts when instructing them; and
• immediately require all expert reports prepared between the dates on which the new Practice Notes were issued (21 November 2024) and when they are to commence (3 February 2025) to identify any parts of the reports which have relied upon Gen AI in their preparation.

Key take away

As the Practice Notes place obligations on experts, it is important that any persons engaged to provide evidence in proceedings in the Land and Environment Court or Supreme Court familiarise themselves with the Practice Notes.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.