The Federal Court has issued the first Practice Note dedicated to the use of Generative Artificial Intelligence (‘GenAI’) in court proceedings. The Practice Note recognises the growing role of GenAI in legal practice but to also address the risks and limitations associated with its use.
Within this Practice Note the court recognises that the use of GenAI can improve efficiency, reduce costs, enhance access to justice and the quality of the administration of justice. Although this Practice Note discusses the adoption of GenAI use in legal practice, it does not diminish the existing procedural and professional obligations that are paramount to ensure that public confidence is held in the legal system.
This Practice Note provides guidance on two points:
- The court’s expectations of all persons using GenAI when involved in proceedings in the Court; and
- The considerations of the Court when making orders about the use of GenAI.
The Court’s Expectations
The Court expects that GenAI will only be used when there is a basic understanding of its capabilities. The use of GenAI will be guided by the existing legal and professional responsibilities of each user, and in some instances the use of GenAI will be inappropriate.
The Practice Note further provides that the use of GenAI may need to be disclosed when required or ordered by the court. The use of GenAI will require extra caution when it relates to the preparation of affidavits, expert reports or other evidentiary materials, given that such material is intended to reflect real events based on one’s recollection, knowledge or experience.
Risks and Limitations
The Practice Note discusses the fact that GenAI may generate inaccurate, entirely fictitious or plainly wrong information. There is an emphasis on these risks and limitations, including GenAI making inaccurate representations, hallucinations, factual errors, incorrect information on the law and fictitious cases as seen in Dayal [2024] FedCFamC2F 1166.
Disclosure Obligations
The use of GenAI must be disclosed when GenAI is used:
- to summarise or analyse information which a witness relies on to make a statement of fact or express an opinion;
- to create and image or recording; and
- in any other manner that may affect the admissibility of evidence.
Where disclosure is required, it should be provided concisely within the document to ensure that other parties and the Court are not misled.
Furthermore, when information is declared as confidential, suppressed, privileged or otherwise not to be made public, the user should consider whether the information is to be inserted into a GenAI tool.
Consequences of misuse
If GenAI is used in a way that is not consistent with this Practice Note or the Court’s orders, adverse costs orders and issues as to compliance with legal and professional obligations should be expected.
The Practice Note confirms that the use of GenAI is permissible in proceedings. However, accountability for all material filed with or presented to the Court remains with the individual. The responsible and informed use of GenAI is essential in maintaining the integrity of the Court’s processes and the administration of justice.