More than a year since it came into force on 3 February 2025, the Supreme Court of New South Wales’ Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI) continues to reshape legal practice across the state. Issued by Chief Justice Andrew Bell in November 2024 and accompanied by separate Guidelines for New South Wales Judges, the note imposes clear boundaries on the use of tools like ChatGPT, Claude, Grok, Lexis Advance AI, CoCounsel and other large language models in court proceedings.
The rules — developed after consultation with the NSW Bar Association and Law Society of NSW — were designed to protect the integrity of evidence, submissions and the administration of justice. They remain fully in operation today, with the Practice Note still subject to periodic review given the rapid evolution of the technology.
What the Practice Note Requires
The core restrictions have not changed:
- Absolute prohibitions: Gen AI cannot generate the content of affidavits, witness statements, character references or any material tendered as evidence. It also cannot alter, embellish or rephrase a witness’s own words.
- Mandatory disclosure: Every affidavit, witness statement or character reference must explicitly confirm that Gen AI was not used in its preparation (with narrow exceptions for annexures/exhibits only where prior leave is granted).
- Written submissions: Any use of Gen AI requires the author to personally verify every citation, case, statute, legislative reference and reference to evidence — verification that cannot itself be done by AI.
- Expert reports: Prior leave of the court is generally required. Experts granted leave must disclose precisely which parts were AI-assisted, identify the tool and version, retain detailed records of prompts and settings (unless the court dispenses with this), and annex any relevant codes of conduct. Special rules apply to professional negligence and workers’ compensation reports.
- Strict exclusions: Material covered by non-publication orders, the Harman undertaking, subpoenas or statutory publication bans is completely off-limits.
Judicial guidelines remain stricter still: judges are prohibited from using Gen AI to formulate reasons for judgment, assess evidence or edit draft judgments.
The note continues to acknowledge well-known risks — hallucinations, outdated or jurisdictionally irrelevant data, confidentiality breaches and copyright issues — while exempting basic spelling/grammar tools, chronologies from source documents, standard search engines and dedicated legal research platforms.
Debate Still Raging
The Practice Note quickly sparked discussion. In the Law Society Journal’s December 2024 analysis (“NSW Supreme Court’s Gen AI practice note sparks debate”), Professor Mimi Zou of UNSW Law & Justice welcomed the clarity it brought to a previously unregulated area, calling it “a work in progress” that at least provides ground rules.
Legal tech leaders pushed back. Samuel Junghenn, CEO of AI Legal Assistant, argued the note “lumps together general-purpose AI chatbots like ChatGPT with purpose-built enterprise-level applications designed specifically for legal practice,” comparing it to treating a junior lawyer and a 25-year specialist as interchangeable. Critics maintain the approach is overly conservative relative to other jurisdictions, potentially stifles efficiency gains for smaller practices and fails to distinguish specialist platforms with built-in safeguards.
Chief Justice Bell has consistently maintained that addressing the digital divide is not part of the court’s remit.
What This Means for Practitioners in 2026
The rules are now embedded in everyday practice. Since February 2025, lawyers and self-represented litigants have been required to think carefully before using any Gen AI tool on court documents. The note does not ban the technology — it demands transparency, personal verification and, in key areas, judicial oversight.
Many view it as essential risk management. Others argue it may slow legitimate productivity improvements that could benefit clients.
With the Practice Note explicitly stating it will be “periodically reviewed” due to the “rapidly developing nature of Gen AI,” the conversation is far from over.
The Debate Continues
More than a year on, Practice Note SC Gen 23 continues to fuel intense discussion across the profession. Fundamental questions remain front and centre:
- Have the disclosure and verification requirements proven workable in the day-to-day grind of practice?
- Should specialist legal AI platforms be treated differently from general-purpose chatbots?
- Has the digital divide the Chief Justice acknowledged become more pronounced, and what role should the profession itself play?
- In 2026, does the current framework still strike the right balance, or should NSW look more closely at developments in the UK, US, Canada and elsewhere?
As the technology races ahead and the Practice Note undergoes its promised periodic review, these issues are shaping how the legal profession balances innovation with the enduring principles of integrity, transparency and access to justice. The conversation the Chief Justice launched in the Banco Court is now firmly embedded in courtrooms, chambers and boardrooms across New South Wales — and it is only gaining momentum.
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