Learned Friend or just a Large Language Model? The Rise of Generative AI in Australian Litigation

Since 2024, Australian courts and tribunals have introduced a number of practice notes, practice directions and judicial guidelines (Practice Notes) which regulate the use of generative artificial intelligence (Gen AI) in Australian litigation. The latest addition is the Fair Work Commission's Guidance Note (Use of generative artificial intelligence in Commission cases), issued following a reported increase in Gen AI-assisted applications filed with the Commission. The Federal Court of Australia has also recently issued its Practice Note (Use of Generative Artificial Intelligence Practice Note (GPN-AI)) providing guidance on the Court's expectations with respect to the use of Gen AI in proceedings. 

As courts continue to develop jurisdiction-specific approaches, practitioners and litigants must be aware that their obligations are not uniform across Australian jurisdictions. Understanding the key differences in these frameworks is essential to managing the risks of using Gen AI before Australian courts. This article considers the requirements and differences in the Practice Notes of New South Wales, South Australia, Victoria, Western Australia, Queensland and the Federal Court of Australia.

Who must comply with the practice notes?

Whether an individual appearing before a Court will be required to comply with the Practice Notes will depend on the scope of the Practice Note. For instance, the Federal Court Practice Note and Victorian Practice Note (SC Gen 25 - The Use of Artificial Intelligence by Court Users) apply to all persons who appear before, or file documents with, the Court. This includes litigants (whether legally represented or not), witnesses and third parties such as those producing documents under subpoena. The application of the Western Australian Practice Note (Supreme Court of Western Australia - Guidelines for the use of generative AI) is similarly broad.

In contrast, the New South Wales Practice Note (Supreme Court Practice Note SC Gen 23) and South Australian Practice Note (Guidelines concerning the use of Generative artificial intelligence in litigation in South Australian Courts) are directed principally to legal practitioners and unrepresented parties. The Queensland Practice Note (Queensland Supreme Court Practice Direction Number 5 of 2025 Accuracy of References in Submissions) adopts the narrowest approach, applying only to the "responsible person" for written or oral submissions.

What technology is covered?

Another key point of difference between the Practice Notes is the scope of the technology they regulate. The Victorian Practice Note adopts the broadest approach, applying to "Artificial Intelligence" generally and defining it as any machine-based system capable of generating outputs such as predictions, content, recommendations or decisions from received inputs.

By contrast, the Federal Court Practice Note, the New South Wales Practice Note, the South Australia Practice Note and the Western Australia Practice Note confine their instruments to Gen AI specifically. The Federal Court Practice Note defines Gen AI as systems that create content, including text, images, music, audio and video, in response to user prompts. It expressly identifies commonly used tools such as ChatGPT, Claude, Harvey, Gemini and Copilot as falling within the Practice Note's scope. The New South Wales Practice Note excludes technologies that merely perform functions such as spelling and grammar correction, transcription, translation or document formatting, as well as search engines and dedicated legal research software.

Verification requirements

Verification of AI output is a universal expectation across all jurisdictions. The Federal Court Practice Note emphasises the well-documented tendency of Gen AI to produce fictitious cases, incorrect legal analysis and factual errors, and makes clear that the presentation of false or inaccurate information to the Court is "unacceptable". Where Gen AI tools have been used to prepare documents filed with the Federal Court, the responsible person, whether solicitor, barrister or unrepresented litigant, must confirm the accuracy and integrity of the document. The New South Wales Practice Note requires the author of any written submissions prepared using Gen AI to verify, in the body of the document, that all citations exist and are accurate and relevant.

The Federal Court Practice Note sets out a non-exhaustive list of matters to be verified. This includes that facts stated in pleadings are based on matters the party reasonably considers can be proved, and that legal authorities cited in submissions actually exist and support the propositions stated.

The other jurisdictions adopt a generally consistent position, which we outline in the table below.

Disclosure Obligations

The Practice Notes take different approaches to the obligation to disclose the use of AI, falling broadly into three categories: mandatory upfront disclosure, court-directed disclosure, and a hybrid model.

Mandatory Upfront Disclosure

The New South Wales Practice Note has the most prescriptive disclosure regime. Affidavits, witness statements and character references must contain a positive statement confirming that Gen AI was not used in generating their content. Gen AI must not be used in preparing material intended to reflect a witness’s evidence or opinion, or material tendered in evidence or used in cross-examination.

Expert reports may only involve Gen AI with prior leave of the Court. Where leave is obtained, the expert must disclose what parts of the report were prepared using Gen AI, identify the program and version used, and include detailed records (including prompts, default values and variables) in an annexure to the report.

Court-Directed Disclosure

The South Australian, Victorian and Western Australian Practice Notes adopt a broadly similar model under which no mandatory upfront statement is required, but parties must be in a position to disclose whether and how Gen AI was used, if directed by the Court.

The Victorian Practice Note stops short of imposing a mandatory upfront disclosure requirement. Nevertheless, the Court may direct court users to provide further information about AI-assisted documents, and court users “must be prepared to identify the specific portions of Court documents which were produced using AI and be able to explain how the output was verified.”

Likewise, the Western Australian Practice Note requires disclosure only “when directed by the court or where otherwise necessary or appropriate”. Experts are expected to carefully consider whether any disclosure is required regarding the use of Gen AI in preparing an expert report or opinion.

Hybrid Model

The Federal Court Practice Note adopts an intermediate position between the New South Wales model and the conditional approaches adopted elsewhere. While it generally requires disclosure only if directed by the Court, it imposes mandatory disclosure where Gen AI has been used in the preparation of affidavits, expert reports and other evidence. Disclosure should state where and how Gen AI has been used and be included in the body of the document at the start. The responsible person must also ensure that when a person makes an affidavit or witness statement, any representations reflect their own recollection, knowledge and experience.

In practice, the Federal Court's approach requires users to maintain records of the Gen AI tool used, the prompts provided and the outputs generated, so that this information can be produced to the Court if required.

Confidentiality and Privilege

The Federal Court Practice Note cautions that information subject to court confidentiality orders, legal professional privilege, or implied undertakings concerning discovered material must not be entered into Gen AI systems in a manner inconsistent with those obligations.

The South Australian Practice Note requires practitioners to proceed on the assumption that disclosure may occur, unless satisfied that the AI system is genuinely closed and that information will neither be retained beyond the terms of the user agreement nor used for retraining purposes, including in anonymised form. Other State jurisdictions adopt a similar approach, as summarised in the table below.

The New South Wales Practice Note has the most structured and prescriptive framework. Unlike the more principle-based approaches adopted elsewhere, the New South Wales framework specifies the circumstances in which protected information may be used with Gen AI and the safeguards that must be in place before such use occurs. It imposes a general prohibition on entering information subject to non-publication or suppression orders, the Harman undertaking, subpoena restrictions, or statutory publication prohibitions into Gen AI tools unless three conditions are met:    

(a) the information remains within a controlled environment subject to enforceable confidentiality restrictions ensuring it is not publicly accessible and is not used to train large language models (LLM);

(b) it is used solely in connection with the relevant proceeding; and

(c) it is expressly excluded from any use in training the AI system or underlying LLM.

Consequences of non-compliance

All Australian jurisdictions make clear that the use of Gen AI in a manner inconsistent with the relevant Practice Note, Direction or Guideline may give rise to adverse consequences. Adverse costs orders are identified as a potential consequence, and most instruments (the Federal Court, Queensland and Victoria) expressly flag compliance with legal and professional obligations as an issue, including the possibility of referral to relevant legal services regulators for investigation. The South Australia Practice Note notes that potential criminal liability may be imposed where evidence is false or misleading.

Summary Table