NSW Practice Note SC Gen 23: Complete Guide to AI Use in NSW Courts

New South Wales has become the first Australian jurisdiction to implement comprehensive, binding rules on the use of generative artificial intelligence in court proceedings. Practice Note SC Gen 23, issued by Chief Justice Andrew Bell on November 21, 2024, and effective from February 3, 2025, establishes clear boundaries for how legal practitioners, litigants, and expert witnesses can use AI tools like ChatGPT, Claude, and other generative AI platforms.

This practice note represents a significant shift in how Australian courts approach AI regulation, and every lawyer practising in NSW needs to understand its requirements.

What Is Practice Note SC Gen 23?

Practice Note SC Gen 23 is a binding practice direction that applies to all proceedings in the NSW Supreme Court, Land and Environment Court, District Court, and NSW Civil and Administrative Tribunal (NCAT). The Practice Note governs the use of "Generative Artificial Intelligence" (Gen AI) in the preparation of court documents and materials.

Definition of Generative AI

The Practice Note defines Gen AI broadly to include both "closed-source" commercial platforms like ChatGPT, Claude, and Google Bard, as well as "open-source" models. It also covers legal-specific AI platforms such as Lexis Advance AI and Westlaw Precision.

Importantly, the Practice Note does not apply to:

Basic spelling and grammar correction tools
Transcription software
Document formatting tools
Traditional search engines
Dedicated legal research databases that don't generate substantive content

Prohibited Uses of AI

Practice Note SC Gen 23 establishes several absolute prohibitions that legal practitioners must observe:

1. Confidential Information

Information subject to any of the following must not be entered into a Gen AI program:

Non-publication orders
Suppression orders
The implied undertaking
Material produced on subpoena
Statutory publication prohibitions

There is a limited exception where a legal practitioner is confident the information will remain within a controlled environment, used only for the specific proceeding, and will not be used to train the AI model.

2. Evidentiary Material

Gen AI must not be used to generate the content of:

Affidavits
Witness statements
Character references
Any material intended to reflect a witness's evidence or opinion

This prohibition is critical. Documents filed in court must now include a disclosure statement confirming that Gen AI was not used in their generation. This requirement applies to all evidentiary materials from February 3, 2025.

3. Expert Reports

Gen AI is generally prohibited from being used to draft or prepare expert reports without prior leave of the court. If a court grants leave, the expert must:

Disclose the use of Gen AI in the report
Maintain detailed records of how AI was used
Verify all AI-generated content

Permitted Uses (With Requirements)

While the Practice Note imposes significant restrictions, it does permit AI use for certain tasks:

Administrative and Preparatory Tasks

Gen AI can be used for:

Generating chronologies and indexes
Preparing witness lists
Creating briefs or draft Crown Case Statements
Summarising documents and transcripts
Reviewing large volumes of material

Written Submissions

Gen AI may be used for preparing written submissions or summaries of argument, but strict verification requirements apply.

The Verification Requirement

Perhaps the most important operational requirement in Practice Note SC Gen 23 is the verification obligation. Legal practitioners using Gen AI for tasks like preparing written submissions must:

Manually verify every legal citation
Check all references to academic authority
Confirm the existence and accuracy of case law citations
Verify legislative references
Ensure the relevance of all cited materials

Critically, this verification cannot be performed by Gen AI itself. Lawyers must independently confirm all AI-generated legal content against authoritative sources.

Why This Matters: The Hallucination Problem

The NSW Supreme Court's strict approach stems from documented cases where lawyers have submitted court documents containing AI-generated citations to cases that simply do not exist. These "hallucinations" are a well-known limitation of generative AI systems, which can produce plausible but entirely fabricated information.

Several high-profile cases—both in Australia and internationally—have demonstrated the serious consequences of relying on unverified AI output. Lawyers have faced professional disciplinary proceedings, costs orders, and reputational damage as a result.

Guidelines for NSW Judges

Practice Note SC Gen 23 also provides guidance for judicial officers:

Judges are cautioned against using Gen AI for formulating judgments
Gen AI should not be used for assessing or analysing evidence
Draft judgments should not be edited or proofread using AI
Judges are encouraged to understand AI limitations
Any AI-generated research must be independently verified

Practical Compliance Steps for NSW Lawyers

To comply with Practice Note SC Gen 23, NSW legal practitioners should:

1. Update Document Templates

Ensure all affidavits and witness statements include the required disclosure statement confirming Gen AI was not used in content generation.

2. Implement Verification Protocols

Establish robust procedures for verifying any AI-generated research or drafting before incorporation into court documents.

3. Train Staff

Ensure all staff members—including paralegals and administrative personnel—understand the restrictions on AI use.

4. Document AI Usage

Maintain records of when and how AI tools are used in matter preparation, particularly if you intend to seek leave for AI use in expert reports.

5. Use Professional Legal AI Tools

Consider using purpose-built legal AI platforms like Numbat.ai that are designed with verification and citation accuracy as core features. Unlike general-purpose AI, legal-specific tools provide transparent citations to actual Australian legal sources.

Comparison with Other Australian Jurisdictions

Practice Note SC Gen 23 represents the strictest approach to AI regulation among Australian courts:

Jurisdiction	Approach	Key Features
NSW	Strict regulation	Binding practice note with specific prohibitions
Victoria	Guidance-based	Guidelines emphasising responsible use
Federal Court	Watch and learn	Monitoring approach with disclosure expectations
Queensland	Flexible guidelines	Specific direction without strict prohibitions

The Future of AI in NSW Courts

The Practice Note acknowledges the rapidly evolving nature of Gen AI and commits to periodic review. As AI technology develops and the legal profession gains more experience with these tools, the requirements may be adjusted.

For now, NSW lawyers must treat Practice Note SC Gen 23 as a clear statement of the court's expectations. Compliance is not optional, and the consequences of non-compliance can be severe.

Key Takeaways

Practice Note SC Gen 23 is now in effect as of February 3, 2025
AI cannot be used for evidentiary content including affidavits and witness statements
Expert reports require court leave before AI can be used
All AI-generated citations must be manually verified
Confidential information must not be entered into AI platforms
Disclosure statements are mandatory for evidentiary materials

How Numbat.ai Supports Compliance

Numbat.ai is designed to help Australian lawyers use AI responsibly while meeting court requirements:

Verified Citations: Every response includes links to actual Australian legal sources
RAG Technology: Responses are grounded in verified legal databases, reducing hallucination risks
Australian Focus: Purpose-built for Australian jurisdictions and legal context
Data Security: Client information stays on Australian servers

By using professional legal AI tools rather than general-purpose platforms, NSW lawyers can harness AI efficiency while maintaining compliance with Practice Note SC Gen 23.

This guide is current as of January 2025 and is based on Practice Note SC Gen 23 as amended on January 28, 2025. Legal practitioners should consult the official NSW Courts website for the most current version of the Practice Note.