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While some state courts have swiftly released guidelines or practice notes on generative artificial intelligence, the Federal Court has preferred to “watch and learn”. In a recent paper, Justice Jane Needham said this approach should be commended.
In March, Chief Justice Debra Mortimer of the Federal Court said its judicial members had been considering whether it should publish a practice note on the use of generative artificial intelligence (GenAI) and would soon welcome feedback from the legal profession.
In comparison, the NSW Supreme Court, Land and Environment Court, and district courts have already taken what Justice Jane Needham said was the “strongest stand” on GenAI, including in its restrictions on how the tools are used for evidence and material.
Its counterparts in Victoria have preferred guidelines and have only urged “particular caution”, but it is still ahead of the federal courts.
In the AI and the Courts in 2025 paper, Justice Needham said that given the “extremely fast-paced technological advances” in the GenAI field, the Federal Court is currently examining how it can be used in a way that “fairly and efficiently contributes to the work of the court”.
Justice Needham added that there was value in this slower approach.
“While I have a somewhat vested interest, I am of the view that the ‘watch and learn’ approach of the Federal Court of Australia has much to commend it,” Justice Needham said.
“The space is moving so fast that what seems appropriate now may be found to be squelching the best approaches to litigation in the near future. However, it is clear that courts need to determine the appropriate position to be taken by them.”
Since the emergence of GenAI, Justice Needham said she has observed its use most when “otherwise inarticulate unrepresented litigants” have suddenly started to cite “random equitable principles”.
Justice Needham said that after clarifying the litigant has used GenAI, her approach is to “give them some warnings as to the risks, point them to the need to disclose if asked, and request that they nominate their use of generative AI in any documents filed”.
When it comes to judges, Justice Needham said some courts have taken the extra step to regulate how judicial officers use GenAI.
For example, the NSW guidelines have prohibited a judge from using GenAI in the formulation of reasons for judgment, assessment or analyses of evidence, in editing or proofing, and have warned against putting any part of a draft judgment into the programs.
The Victorian guidelines referred to the Australasian Institute of Judicial Administration and noted that no judges use GenAI in the state.
Referring to the AI-assisted judges? research paper by Andrew Ray and Associate Professor Heather Roberts from the ANU Law School, Justice Needham said there was limited discussion about the potential beneficial role AI could play in judicial administration.
In Snell v United Specialty Insurance Company, which occurred in a United States courtroom, the presiding judge said he used GenAI to determine the ordinary meaning of the word “landscaping” and opined that AI may be useful in the interpretation of legal texts.
Justice Needham also referred to a United Kingdom case where a Court of Appeal judge said he found AI-generated summaries of areas of law he was familiar with “jolly useful”.
This fit “within the caveat” of UK guidance that legal research should not be conducted through AI, as it was a “poor way” to find new information that could not be verified independently. However, it could be useful to verify material that is already familiar.
“Many more well-informed and more technologically competent minds than mine have been turning to the question of ‘where to now’.
“The use of AI in litigation is clearly a matter worthy of, and requiring, targeted regulation. I look forward to seeing at which point the various courts arrive,” Justice Needham said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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