Australia: NSW Practice Note SC Gen 23

What counts, and what does not

The practice note applies to closed-source and open-source large language models alike, and it names them: ChatGPT, Claude, Grok, Llama, Google Bard, Co-Pilot, and the legal-specific tools Lexis Advance AI, Westlaw Precision, Luminance and CoCounsel Core, expressly non-exhaustively.

Paragraph 6 carves out what it does not reach, and this is the part most summaries get wrong:

• ExcludedSpelling and grammar correction, transcription, translation, formatting, and anything that does not generate substantive content.
• ExcludedSearch engines such as Google, which return a list of sites rather than a personalised textual answer.
• ExcludedDedicated legal research software using AI or machine learning to search legislation, judgments of courts or tribunals, and books or articles written for a legal audience.

So Westlaw and Lexis research are outside it. The tool that writes your paragraph is inside it.

The general prohibition, paragraph 9A

Four categories of material must not be entered into any generative AI program: information subject to non-publication or suppression orders; material covered by the implied Harman undertaking; material produced on subpoena; and anything under a statutory publication prohibition. The only exception is where the practitioner is satisfied the information will remain inside a controlled platform under confidentiality restrictions on the supplier, will be used only in that proceeding, and will not be used to train the model.

That is a local-deployment test written into a rule of court. A public chatbot cannot satisfy it.

Paragraph 9B then permits, for the avoidance of doubt: chronologies, indexes and witness lists; briefs and draft Crown Case Statements; summarising or reviewing documents and transcripts; and written submissions, subject to the verification rule below.

Evidence: a flat ban, and a declaration you must make

“Gen AI must not be used in generating the content of affidavits, witness statements, character references or other material that is intended to reflect the deponent or witness’ evidence and/or opinion, or other material tendered in evidence or used in cross examination.” — paragraph 10

Paragraph 11: such documents “should contain and reflect a person’s own knowledge, not AI-generated content.” Paragraph 12 closes the polishing loophole that every other jurisdiction leaves open: generative AI must not be used “for the purpose of altering, embellishing, strengthening or diluting or otherwise rephrasing a witness’s evidence when expressed in written form.”

And then paragraph 13, which is what makes it enforceable. The affidavit must contain a disclosure that generative AI was not used. Not a disclosure if it was. A positive declaration that it was not. Leave may be sought in exceptional cases for annexures or exhibits, and the application must identify the proposed use, the program and version, whether it is open or closed source and what privacy settings it has, and the benefit to be derived.

Submissions: verify in the body, and not with a machine

Paragraph 16 requires that where generative AI was used in preparing written submissions or skeletons, the author must verify in the body of the document itself that all citations, legal and academic authority, case law and legislative references exist, are accurate, and are relevant to the proceedings, and must make similar verification for references to evidence, whether in affidavits or transcript.

“Such verification must not be solely carried out by using a Gen AI tool or program.” — paragraph 17

That single sentence forecloses the defence offered in Gamez v. County of Fresno, where counsel believed a paid tool had anti-hallucination protection. In New South Wales, checking the machine with the machine is not checking.

Expert reports, and the prompt log

Generative AI must not be used to draft any part of an expert report without prior leave. Where leave is granted, paragraph 22 requires the expert to:

• 22(a)Disclose in the report which parts were prepared using generative AI or drew on AI-produced material, and which program and version was used.
• 22(b)“Keep records and identify in an annexure to the report a record of how the Gen AI tool or program was used (for example any prompts used, any default values used, and any variables set)”, unless the Court dispenses with it as voluminous or unnecessary.
• 22(c)Where a code of practice or principles bind the expert, identify that and annex a copy.

Paragraph 24 puts the burden on the lawyers: practitioners and unrepresented parties “must draw the requirements of this Practice Note to the attention of experts when instructing them.”

Paragraph 22(b) is worth reading twice. A court has required that the prompts, defaults and variables be kept and filed. Every other instrument on this record asks you to promise you verified something. New South Wales asks for the working.

The rest of Australia

New South Wales moved first and hardest, and other Australian courts and bodies have issued their own protocols and guidance. We have read SC Gen 23 in full and have not yet read the others, so we name New South Wales and stop there rather than describe instruments we have not opened. The Law Society of New South Wales maintains a public index of Australian court protocols on AI.

Sources

• Practice Note SC Gen 23, Use of Generative Artificial Intelligence (PDF), read in full
• Supreme Court of NSW, generative AI page
• Law Society of NSW, index of Australian court protocols on AI
• Amendment history: issued 21 November 2024 to commence 3 February 2025; replaced by the 28 January 2025 version, signed by the Hon. A S Bell, Chief Justice of New South Wales.

Related

• AI rules for lawyers, country by country
• Qatar, the only other instrument that can require an affidavit about AI use
• Singapore
• Privilege and AI, which paragraph 9A speaks to directly

Checked 5 August 2026 against the Court’s own PDF. Information, not legal advice, and not advice on the law of New South Wales.