NSW GEN AI Practice Direction Amended

In the December 2024 Issue there was included as the first item in this section a Practice Direction issued by the Chief Justice of New South Wales in relation to use of Generative AI in drafting of affidavits, expert reports and submissions, together with other uses in and about court practice.

Hard on the heels of the issue of that Practice Direction, the same was amended to not just clarify, but in some respects relax the stringency of the original stipulation. A link to the December 2024 issue is here.

Usefully New South Wales solicitor, Bill Madden – in his newsletter “Bill Madden’s WordPress” – has summarised the amendments:

Procedure: Gen AI practice note adjustments (NSW).

February 2, 2025 ~ Bill Madden

Practice note SC GEN 23 (Link to Supreme Court).

As foreshadowed in its initial publication, the Generative AI practice note may require periodic updates. That has already occurred (before the starting date on 3 February 2025), with the issue of a new version on 28 January 2025.

The principal amendment is to the former paragraph 9 which has been broken into two paragraphs and addresses issues which had been raised with the Chief Justice both in writing and at the briefing. There are also minor amendments by way of clarification to paragraphs 6, 10 (last sentence) and 17 (insertion of the word “solely”).

Paragraph 6 deals with what “Gen AI does not include”. Paragraph 10 now makes clearer that it does not 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’ evidence and/or opinion. Paragraph 17 makes clear that in written submissions and summaries of argument, verification of authorities and case law must not be solely carried out by using a Gen AI tool or program.

The ‘general prohibition’ text in Paragraph 9A now provides that certain materials (such as information produced on subpoena) may be entered into a Gen AI program if it:

(a) 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 to ensure that the data is not made publicly available and is not used to train any large language models;(b) is to be used only in connection with that proceeding (unless otherwise required or permitted by law to be disclosed or required to be reviewed by a law enforcement agency for policy purposes);(c) is not used to train the Gen AI program and/or any large language model.

In Paragraph 9B, for the avoidance of doubt, a Gen AI program may be used for any of the following purposes:

(a) the generation of chronologies, indexes and witness lists;(b) the preparation of briefs or draft Crown Case Statements;(c) the summarising or review of documents and transcripts;(d) the preparation of written submissions or summaries of argument(subject to paragraphs 16 to 18 of the Practice Note).

I thank Bill Madden for permission to use this issue of “Bill Madden’s WordPress”.

A link to the Amended Supreme Court Practice Direction is here.