Australian courts on AI in filings: the rules by jurisdiction

By Michael Nadalin, Founder, Market Lead · 31 August 2026 · 11 min read

An affidavit filed in the Supreme Court of New South Wales has to carry a line stating that generative AI was not used to generate its content. Not a note in the file, not a policy sitting in your practice management system: a disclosure inside the document itself. That has been in force since 3 February 2025, and a surprising number of practitioners still file without it.

Cross the border and the rules change shape. The Federal Court did not publish its generative AI practice note until 16 April 2026. Victoria replaced its 2024 litigant guidelines with Practice Note SC Gen 25 on 14 May 2026. South Australia's guidelines commenced on 1 January 2026 across six courts. Queensland skipped the philosophy and did something blunter: put a human being's name at the bottom of the submissions and make that person answerable for every citation in them.

What follows is a jurisdiction by jurisdiction read of what the courts have put in writing, what they permit, what they prohibit outright, and where the disclosure obligations actually bite. If you practise in more than one jurisdiction, the last section sets out a filing workflow that satisfies the strictest of them.

The one thing every jurisdiction agrees on

No Australian court has banned generative AI. Every one of them has said the same underlying thing in different words: the practitioner who signs the document is answerable for its contents, and that responsibility cannot be handed to a tool. The Federal Court frames it as existing legal and professional obligations continuing to apply. Victoria frames it as court users being responsible for the content of their documents whether or not they used AI. New South Wales frames it as a set of hard rules with a verification step attached.

The most commonly missed detail sits in paragraph 17 of the NSW practice note: verification of citations must not be carried out solely by using a generative AI tool. Asking a second model whether the first model's cases are real is not compliance. You open the judgment.

The second most commonly missed detail is the carve out. SC Gen 23 expressly does not apply to spellcheck, transcription, translation, formatting, ordinary search engines, or dedicated legal research software that searches legislation, judgments and legal writing. The rules are aimed at a model generating substantive content, not at every piece of software with a machine learning component.

New South Wales: the tightest rules in the country

Practice Note SC Gen 23 was issued on 28 January 2025, replacing a version issued on 21 November 2024, and commenced on 3 February 2025. It is the most prescriptive AI instrument any Australian court has produced, and it is worth reading rather than summarising, because the obligations are document specific rather than general.

Evidence is the hard line. Generative AI must not be used to generate the content of affidavits, witness statements, character references, or other material intended to reflect a witness's evidence or opinion. It must not be used to alter, embellish, strengthen, dilute or otherwise rephrase a witness's evidence. And the document must contain a disclosure that AI was not used. Preparatory work is not caught, but the text that becomes the evidence is.

Expert reports are the trap most firms walk into second. Generative AI must not be used to draft or prepare the content of an expert report without prior leave of the Court. The leave application has to identify the proposed use, the specific program and version, whether it is open or closed source, and the benefit. If leave is granted, the expert discloses which parts of the report used AI and annexes a record of how the tool was used, including prompts. Paragraph 24 puts the obligation on you: practitioners must draw the practice note to the expert's attention when instructing them.

There is also a confidentiality prohibition that has nothing to do with hallucinations. Material subject to non publication or suppression orders, material produced on subpoena, and material covered by the implied Harman undertaking must not be entered into any AI program unless you are satisfied it stays inside a controlled environment, is used only for that proceeding, and is not used to train the model. The rest of the NSW system has since followed with its own instruments: the District Court, the Local Court from 12 January 2026, NCAT and the Personal Injury Commission. The Chief Justice invited submissions from the profession by 18 December 2025 to inform the next revision, so expect movement.

The Federal Court took two years and landed somewhere softer

The Federal Court worked through 2024 and 2025 before committing anything binding to paper, and the result reads like principles rather than prohibitions. GPN-AI was published on 16 April 2026. Its scope is broader than the NSW note: it reaches all persons who appear before the Court or file documents, including represented parties, litigants in person, witnesses, experts, and third parties responding to subpoenas or production orders.

The core requirements are that anyone using generative AI has a basic understanding of its capabilities, limitations and risks, and that the use must not adversely affect the administration of justice. Disclosure is required in some circumstances rather than always, and the sharpest trigger sits around evidence: where AI has been used to summarise, analyse or generate material that informs evidence or opinion, that use is to be disclosed. Experts keep their overriding duty to the Court and their reports must reflect their own reasoning.

Particular caution is flagged for pleadings, submissions, evidence, and any dealing with confidential or protected information. The practical difference from New South Wales is real: the Federal Court does not tell you which documents you may not touch, it tells you that you remain personally accountable for verifying facts, checking that authorities exist and support the proposition advanced, and keeping privileged and suppressed material out of tools that may retain it. That is a lower compliance ceiling and a higher judgment requirement.

Victoria, Queensland, South Australia and Western Australia

Victoria moved first and has now moved twice. The May 2024 Guidelines for Litigants were the earliest substantial Australian court guidance, and the Supreme Court replaced them on 14 May 2026 with Practice Note SC Gen 25. The important shift is what SC Gen 25 asks you to be able to produce: court users must be prepared to identify the specific portions of a document produced using AI and explain how that output was verified. That is a record keeping obligation, not a form to tick. If you cannot reconstruct which paragraphs came from where and what you did to check them, you cannot answer the question when it is put to you.

Queensland took the least theoretical approach in the country. Supreme Court Practice Direction 5 of 2025 deals with the accuracy of references in submissions by requiring that a person taking responsibility for the document be named at its end, and a firm name is not sufficient. An individual legal practitioner has to put their name to it. QCAT adopted the same mechanism in Practice Direction 10 of 2025. Queensland also has separate guidance for self represented litigants and for judicial officers.

South Australia's guidelines commenced on 1 January 2026 and reach further than most: the Supreme, District, Magistrates, Youth and Environment, Resources and Development Courts, plus the Court of Disputed Returns, with the intention that they be given force through court rules binding both practitioners and litigants. Western Australia ran a genuine consultation rather than importing another state's text, asking the profession whether disclosure should be mandatory, in what circumstances, and whether particular areas of practice should be restricted. Submissions closed on 31 March 2025 and guidelines followed later that year.

What has actually happened to practitioners who got it wrong

The Australian consequences through 2025 and into 2026 have been professional rather than criminal, and they have been consistent. Courts have made costs orders against firms that filed documents containing citations that were fabricated or wrongly included by a generative AI tool. A judge of the Federal Circuit and Family Court referred a practitioner's conduct to the New South Wales Office of the Legal Services Commissioner on the basis that it was in the public interest to do so. A group including a South Australian solicitor and two Victorian barristers, one of them a King's Counsel, was left facing their respective state regulators after material sourced by AI reached the court. In at least one matter the practitioner was permitted to continue practising under supervision.

Read the pattern rather than the headlines. Nobody has been sanctioned for using AI. They have been sanctioned for placing something before a court that they had not checked, which is an old duty with a new failure mode. The Victorian practice note is explicit that unverified reliance risks referral to the Victorian Legal Services Board and Commissioner and personal costs orders.

The exposure is also asymmetric in an unpleasant way. A fabricated authority is not a minor drafting error that gets corrected in reply. It goes to candour to the court, it usually surfaces in open court when the other side cannot find the case, and the judgment that records it is published under your name.

A filing workflow that satisfies the strictest jurisdiction

If you practise across borders, do not build five workflows. Build one that clears New South Wales, because it is the strictest, and it will clear everything else. That means four fixed rules. Treat evidence as a no AI zone: affidavits, witness statements and character references get written by the person whose evidence they are, and in NSW the document carries the positive disclosure to that effect. Do not let a generative tool near an expert report without leave, and tell your expert about the practice note when you brief them, because that obligation is on you and not on them. Keep suppressed, subpoenaed and Harman restricted material out of any tool that retains or trains on inputs. And verify every citation against the primary source, never against a second model.

Then add the two administrative habits the newer instruments assume you already have. Put one named practitioner's name at the end of every set of written submissions, which Queensland now requires and which costs nothing to adopt everywhere. And keep a short per document record of which parts involved AI, which tool and version, and how the output was verified, because Victoria now expects you to be able to produce exactly that, and NSW requires a prompt record annexed to any expert report prepared with leave.

One structural point is worth understanding, because it changes what tooling is sensible. SC Gen 23 draws a line between a general purpose chatbot generating text and dedicated legal research software that searches legislation, judgments and legal writing, and it carves the second out. The distinction that matters in practice is whether the tool hands you the source. Research built on retrieval from the actual corpus, which is the approach Legal Brain takes for Australian material, makes verification a matter of opening the judgment it points at rather than trusting a summary it wrote. That does not transfer your responsibility anywhere. It just makes discharging it take minutes instead of an afternoon.

The rules will keep moving. The NSW Chief Justice has already invited submissions for the next revision, Western Australia consulted before drafting, and the Federal Court took two years to settle its position. Diarise a review of your firm's AI policy against the current practice notes at least twice a year, and check the practice note itself rather than a summary of it, including this one.

Frequently asked questions

Can Australian lawyers use ChatGPT for court documents?

Yes for some documents and no for others, and it depends on the jurisdiction. In the NSW Supreme Court, generative AI may be used for chronologies, indexes, witness lists, briefs, document and transcript summaries and written submissions, but must not generate the content of affidavits, witness statements or character references, and must not be used for an expert report without prior leave. The Federal Court and Victoria take a principles based approach instead, permitting use but holding the practitioner personally responsible for verifying everything filed.

Do I have to tell the court I used AI?

In New South Wales the disclosure runs the other way: an affidavit, witness statement or character reference must state that generative AI was not used to generate its content. Under the Federal Court's GPN-AI, disclosure is required in some circumstances, particularly where AI has been used to summarise, analyse or generate material informing evidence or opinion. Victoria's SC Gen 25 requires that you be prepared to identify which portions of a document were produced using AI and explain how the output was verified.

Does Practice Note SC Gen 23 apply to legal research tools?

Not to all of them. Paragraph 6 expressly excludes dedicated legal research software that uses AI or machine learning to search legislation, judgments of courts and tribunals, and legal books and articles, along with spellcheck, transcription, translation, formatting and ordinary search engines. The practice note is aimed at generative AI producing substantive content. Your verification duty for anything you cite is unaffected either way.

What happens if you file AI hallucinated citations in an Australian court?

Australian courts have responded with costs orders against the firm, referrals to state legal services regulators including the NSW Office of the Legal Services Commissioner and the Victorian Legal Services Board and Commissioner, and conditions such as practising under supervision. The conduct is generally recorded in a published judgment. The issue is not the use of AI but filing material the practitioner had not verified.