Recently, the Supreme Court and Land and Environment Court made amendments to practice notes regarding the use of generative artificial intelligence (AI Practice Notes) in litigation.
The amendments to the AI Practice Notes, which commenced on 12 February 2025, arose out of consultation with legal practitioners during and following the Chief Justice’s briefing to the profession in December 2024.
The announcement of the amendments to the AI Practice Notes can be found here: Announcement
In summary, the amended AI Practice Notes:
- add technology or functionality which merely provides translation to the list of exclusions from the meaning of generative artificial intelligence (Gen AI) in paragraph 6;
- now capture the generation of chronologies from original source documents as falling within the scope of Gen AI;
- temper the general prohibition on the entering of information produced under compulsion into any Gen AI program without the leave of the Court so that a legal practitioner or other person responsible for the conduct of the relevant proceedings may do so if satisfied that the information
- will remain within the controlled environment of the technological platform being used, and that the platform is the subject of confidentiality restrictions on the supplier of the relevant technology or functionality, so as to ensure that the data is not made publicly available and is not used to train any large language models;
- is to be used only in connection with the relevant proceedings (unless otherwise required or permitted by law to be disclosed, or required to be reviewed by a law enforcement agency for policy purposes); andis not used to train the relevant Gen AI program and/or any large language model;
- soften the requirement in paragraph 17 not to use Gen AI to verify citations, legal and academic authority, case law, and legislative references in written submissions/summaries of argument, so that the requirement is now only that this verification not be ‘solely’ carried out by Gen AI.
- clarify that, subject to the limitations in paragraph 9A, a Gen AI program may be used for the generation of chronologies/indexes/witness lists, the preparation of briefs or draft Crown Case Statements, the summarising or review of documents and transcripts, and the preparation of written submissions or summaries of argument (subject to the requirements to verify citations, legal and academic authority, case law, and legislative references);
- clarify that the prohibition on using Gen AI in generating the content of affidavits/witness statements/other evidentiary material under paragraph 10 does not prohibit the use of Gen AI for work that is merely preparatory to the drafting of the affidavit (or other document setting out the witness’s evidence and/or opinion); and
- soften the requirement in paragraph 17 not to use Gen AI to verify citations, legal and academic authority, case law, and legislative references in written submissions/summaries of argument, so that the requirement is now only that this verification not be ‘solely’ carried out by Gen AI.
The amendments to the AI Practice Notes represent an easing of some of the more stringent restrictions contained in their original forms. However, most of the constraints on the use of Gen AI imposed by the AI Practice Notes as made still apply, including:
- 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, remains prohibited (save for the new exception of work that is merely preparatory to the drafting);
- the use of Gen AI in drafting or preparing any part of an expert report without prior leave remains prohibited, and, where prior leave has been obtained, the expert witness remains required 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; and
- all legal practitioners and unrepresented parties remain required to draw the requirements of the relevant practice note to the attention of experts when instructing them.
Key takeaways
Whilst there has been some easing of restrictions on the use of Gen AI in litigation following consultation with the legal profession, the AI Practice Notes (as amended) still impose constraints to limit and mitigate the risk of the use of Gen AI in litigation.
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.