The NSW Supreme Court’s Practice Note SC Gen 23 introduces restrictive guidelines for using generative artificial intelligence (Gen AI) in legal proceedings. While framed as a proactive measure to address AI risks, the practice note overlooks recent advancements in AI technology, existing regulatory frameworks, and the transformative benefits of AI for legal practice. This article analyses these shortcomings and highlights why legal practitioners in NSW and beyond should carefully reconsider its adoption.
Modern Legal AI Solutions Render Concerns Obsolete
Advances in legal AI technology have already addressed the confidentiality, accuracy, and data security concerns raised by the Practice Note. Modern closed-source legal AI tools are purpose-built for the legal profession and include:
- Data sandboxing to prevent unauthorised access.
- Stringent encryption protocols and client-specific encryption keys.
- Audit trails for full transparency and oversight.
- Attribute-based access controls to ensure that only authorised users can access sensitive materials.
These features surpass the security measures traditionally relied upon by legal practitioners. By treating these advanced systems the same as open-source or generic AI platforms, the Practice Note undermines the potential of AI to enhance legal processes while maintaining compliance with existing laws.
A Missed Opportunity for a Nuanced Approach
Rather than imposing blanket prohibitions, the NSW Supreme Court could have:
- Prescribed technology standards and minimum safeguards for AI use in legal practice.
- Outlined acceptable verification processes for AI-assisted outputs.
- Set clear criteria for the responsible use of AI in affidavits, submissions, and evidentiary materials.
- Developed its own closed-source AI model, trained on NSW laws, regulations, and case law, and make it accessible to parties involved in legal proceedings.
By doing so, the Court could have supported innovation while ensuring compliance with existing ethical and professional obligations. The current broad restrictions stifle technological progress and risk perpetuating inefficiencies in the legal system.
Existing Regulatory Frameworks Are Adequate
The Uniform Civil Procedure Rules 2005 (NSW), Legal Profession Uniform Law, and Solicitors’ and Barristers’ Conduct Rules already provide a robust framework to address the concerns cited in the Practice Note. Key provisions include:
- Rule 35.3 of the Uniform Civil Procedure Rules (NSW): Affidavits must reflect a witness’s personal knowledge, ensuring accuracy and reliability.
- Rules 3, 4, and 9 of the Solicitors’ Conduct Rules: Mandate confidentiality, honesty, and accuracy in all court submissions.
- Evidence Act 1995 (NSW): Governs the admissibility and reliability of evidence, regardless of whether it was prepared using AI.
These rules collectively ensure that lawyers face professional sanctions and potential exclusion of evidence for any misconduct—whether involving AI or traditional methods. The Practice Note provides no compelling evidence whatsoever that these frameworks are insufficient.
Negative Implications for Legal Practice
The restrictive provisions of SC Gen 23 risk creating several unintended consequences, including:
- Discouraging Innovation: By treating AI tools as inherently risky, the Practice Note may deter legal practitioners from adopting transformative technologies that improve efficiency and reduce costs.
- Exacerbating Inefficiencies: AI offers significant benefits in reducing repetitive tasks, improving accuracy, and lowering costs. Restrictions could perpetuate high overheads, limiting access to justice for underrepresented communities.
- Protecting Outdated Models: The Practice Note may appear to favour traditional legal practices, potentially hindering progress in modernising the profession.
- Eroding Public Confidence: The restrictive nature of the Practice Note risks undermining public trust in the Supreme Court and the legal profession by appearing resistant to innovation and out of step with modern technological advancements, potentially creating a perception that the justice system prioritises outdated practices over efficiency and accessibility.
At a time when the legal sector faces challenges such as rising workloads and practitioner burnout, tailored legal AI tools could provide critical relief.
Jurisdiction Concerns and Potential Legal Challenges
There is a credible argument that the Practice Note exceeds the Chief Justice’s authority. Under the Supreme Court Act 1970 (NSW) and Civil Procedure Act 2005 (NSW), practice notes are intended to provide procedural guidance—not to impose substantive restrictions on how legal practitioners conduct their work outside court proceedings.
Critics point out that:
- The Chief Justice’s authority is limited to procedural matters directly impacting court operations.
- The Practice Note unlawfully encroaches into substantive matters beyond jurisdiction.
- Regulating AI use in document preparation or outside procedural contexts exceeds the scope of what a practice note can lawfully impose.
This overdramatic overreach could potentially be challenged in court, particularly given the Practice Note has no real arguable justification, is completely unnecessary and has so many negative implications for the legal profession and society as a whole.
Missed Opportunities for Education and Guidance
The education gap regarding AI’s capabilities and risks could have been addressed more effectively through:
- Mandatory CPD units for legal practitioners on generative AI.
- Collaborative guidelines developed with professional bodies like the NSW Law Society and Bar Association.
Such measures would better ensure that lawyers remain informed about technological advancements without imposing unnecessary restrictions.
Implications for Other Jurisdictions in Australia
The restrictive approach of SC Gen 23 could set a troubling precedent for other Australian jurisdictions. If similar prohibitions are adopted elsewhere, the profession risks falling behind global counterparts that are embracing responsible AI adoption. Instead of discouraging innovation, courts should focus on fostering frameworks that integrate AI’s benefits while safeguarding legal and ethical standards.
Conclusion
The NSW Supreme Court’s Practice Note SC Gen 23 represents a missed opportunity to harness the benefits of modern legal AI tools. By ignoring the advancements in closed-source AI tailored for legal practice, the Court risks perpetuating inefficiencies, stifling innovation, and increasing costs for clients. Existing regulatory frameworks already address the concerns raised, making the broad prohibitions unnecessary.
Legal practitioners in NSW and beyond should critically evaluate the implications of this Practice Note. Instead of accepting its sweeping restrictions, the legal profession should advocate for balanced, informed approaches that support innovation, uphold ethical standards, and improve access to justice.
Actionable Insight: It’s time to reconsider SC Gen 23. Legal practitioners need to advocate for regulatory reforms that encourage responsible AI use and resist the unnecessary limitations imposed by this Practice Note otherwise the profession will risks losing public confidence.
About Andrew Easterbrook: With almost 20 years of experience as lawyer in Australia, Andrew also helps Australian law firms streamline operations and enhance client service through tailored A.I. solutions. Learn more at About Andrew Easterbrook or Contact Andrew.
Sources:
Supreme Court of New South Wales. (2024, November 21). Practice Note SC Gen 23 – Use of Generative Artificial Intelligence (Gen AI). https://supremecourt.nsw.gov.au/documents/Practice-and-Procedure/Practice-Notes/general/current/PN_Generative_AI_21112024.pdf
Andrew Easterbrook’s Word Press. (2025, 13 January 2025). “Access to Justice Denied” – the Injustice of the Chief Justice: How Practice Note SC Gen 23 will Exacerbate Inequality in the Supreme Court of NSW, https://andreweasterbrook.com/access-to-justice-denied-the-injustice-of-the-chief-justice-how-practice-note-sc-gen-23-will-exacerbate-inequality-in-the-supreme-court-of-nsw/
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American Bar Association. 7 Ways Artificial Intelligence Can Benefit Your Law Firm. https://www.americanbar.org/news/abanews/publications/youraba/2017/september-2017/7-ways-artificial-intelligence-can-benefit-your-law-firm/
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World Justice Project. Rule of Law Index 2023. https://worldjusticeproject.org/rule-of-law-index/
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Lawyers Weekly. NSW Supreme Court issues historic AI guidance. https://lsj.com.au/articles/supreme-court-issues-historic-ai-guidance/
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The Lawyer. NSW Supreme Court issues new guidelines for use of generative AI in legal practice. https://www.thelawyermag.com/au/practice-areas/tmt-telecoms-media-technology/nsw-supreme-court-issues-new-guidelines-for-use-of-generative-ai-in-legal-practice/515616
Bill Madden’s Word Press. Practice Procedure: Generative AI Practice Note. https://billmaddens.wordpress.com/2024/11/21/practice-procedure-generative-ai-practice-note/
The Lawyer. NSW Supreme Court issues new guidelines for use of generative AI in legal practice. https://www.thelawyermag.com/au/practice-areas/tmt-telecoms-media-technology/nsw-supreme-court-issues-new-guidelines-for-use-of-generative-ai-in-legal-practice/515616
The Marshall Project. Will AI Be the End of Lawyers?. https://www.themarshallproject.org/2024/02/10/ai-artificial-intelligence-attorney-court
