explainerAI in Courts
What NSW Supreme Court Practice Note SC Gen 23 actually prohibits
New South Wales runs the strictest AI court rule in the common-law world: affidavits must declare AI was NOT used. Here is what the practice note requires.
Most courts that regulate generative AI ask lawyers to disclose when they use it. The Supreme Court of New South Wales went further: for evidence, it prohibits the use entirely — and requires a signed statement that AI was not used.
What the practice note says
Practice Note SC Gen 23 was first issued on 21 November 2024, revised on 28 January 2025, and commenced on 3 February 2025. Its core provisions:
- Generative AI must not be used to draft affidavits, witness statements, or character references.
- Affidavits must contain a disclosure statement confirming AI was not used in their preparation (supported by Uniform Civil Procedure Rules r 35.3B).
- Exceptions require the leave of the court.
The stated rationale is evidentiary integrity: an affidavit is the witness’s own account, and a fluent model intermediating that account undermines what the document is for.
How it compares
| Regime | Approach | Instrument |
|---|---|---|
| NSW Supreme Court | Prohibition + negative declaration | SC Gen 23 (Feb 2025) |
| Federal Court of Canada | Disclosure declaration when AI used | AI Notice (Dec 2023, upd. May 2024) |
| Federal Court of Australia | Enumerated mandatory disclosure + power to compel | GPN-AI (Apr 2026) |
| England & Wales | No general rule; judicial guidance + Hamid jurisdiction | Judiciary AI guidance (Oct 2025) |
| New Zealand | Disclosure only if the court asks | Courts of NZ GenAI guidelines (Dec 2023) |
The prohibition-versus-disclosure split is the live policy question in court regulation of AI. NSW anchors one end of the spectrum; New Zealand’s ask-first model anchors the other. Which approach actually reduces incidents is an empirical question our tracker data will eventually answer.
What practitioners outside NSW should take from it
Jurisdiction always matters: conduct that is a disclosure obligation in Ottawa is a rule breach in Sydney. Firms operating across Australian jurisdictions face both regimes simultaneously — the NSW prohibition for Supreme Court matters and the Federal Court’s disclosure-based GPN-AI for federal ones.