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As courts and tribunals across Australia grapple with artificial intelligence, there remains a “lack of uniformity” in the understanding judicial members have of the technology, how and when to use it, and the risks it presents, a Federal Court judge has said.
In a speech delivered at the National Judicial Institute of Canada, Federal Court Justice Emilios Kyrou said that while generative artificial intelligence (GenAI) is seeping into Australian courts and tribunals, there is yet to be a “significant impact” on the way judges and members are personally performing their duties.
Even if there were, Justice Kyrou told the Judging in the Digital Age Seminar that “there is a lack of uniformity” among judges and members regarding the level of understanding of AI and concerns about it.
“To date, comprehensive AI training programs have not been developed for Australian judges and tribunal members to broaden their knowledge of how they may be able to harness its potential safely and responsibly,” Justice Kyrou said.
Justice Kyrou said he personally does not use AI for personal or official purposes, citing that he does “not understand it sufficiently and therefore feel uncomfortable in using it”.
“I have the same approach to other products or services. For example, I do not invest in financial products that I do not understand. Of course, one of the risks in this area is that I may be using what I consider to be conventional research tools, which in fact have embedded AI capability,” Justice Kyrou said.
While there is no “AI Act” governing the use of artificial intelligence in Australian courtrooms, Justice Kyrou said the blanket prohibition on the technology for judicial and quasi-judicial decision making reflects its “fundamental concerns and challenges”.
A key concern is ensuring decisions of courts and tribunals “are entirely those of the independent and impartial judicial or quasi-judicial decision-maker”. They would be acting “inconsistency with their oath of office” if they were to use AI in that way.
“A key challenge on the use of AI by judges and tribunal members is its unreliability. It is well known that AI-generated content (particularly from ‘public’ AI models) can be inaccurate or even completely fictitious,” Justice Kyrou said.
“Judges and tribunal members are essential pillars of the rule of law, and their decisions profoundly affect the lives and livelihoods of citizens. Decisions [that] are based on flawed AI-generated content represent not only sloppy work, but are [also] highly detrimental.
“They can damage public trust and confidence in courts and tribunals, and undermine the rule of law.”
As for non-decision making, Justice Kyrou said judges and tribunal members are permitted to adopt AI, but it is essential they personally verify its “accuracy, reliability and relevance”.
There is also concern about whether particular research tools or software programs incorporate undisclosed AI programs, making it difficult for judges and tribunal members to be entirely confident that they and their staff are not unintentionally using it.
“For example, the Microsoft Copilot application can be used for proofreading of documents. However, unless care is taken, suggested corrections may extend beyond mere typographical errors and include changes to substantive content,” Justice Kyrou said.
Justice Kyrou supports the position adopted by the Council of Chief Justices that judges and tribunal members should be prohibited from using GenAI for judicial decision making.
This is because he believes humans “need to operate within a values and ethical context, which AI lacks”, and because judges and tribunal members who use the technology risk losing some of the decision-making skills they have spent years developing.
“At a personal level, I want my decisions to reflect my unique voice and style, which I have developed over many years in line with my growth as a jurist and my deeper appreciation of the foundational values of our legal system,” Justice Kyrou said.
“I do not wish to share my voice with computer-generated content which is based upon an instantaneous collation of random data that is likely to lack a core unifying value system.”
