Extract from ABC News
The highest-ranking judge of Australia's oldest court has flagged generative AI as one of the biggest challenges facing the justice system.
Chief Justice Andrew Bell addressed a ceremonial sitting on Friday to mark the Supreme Court of NSW's bicentenary, with an audience including the most senior judges from Australia, New Zealand and Singapore.
In an interview with the ABC he reflected on the court's milestones of the last 200 years, its enduring values, cases that reflect societal change, and its future challenges.
The challenge AI presents to justice
"High on the agenda" is the increasing sophistication of generative AI — programs like ChatGPT which can produce content like text and imagery — and the complex issues it creates for the legal system.
A recent case in the ACT saw that state's Supreme Court note a character reference appeared to have been written with help from a program like ChatGPT, and regard it as having little weight.
But Chief Justice Bell says the concern isn't limited to the admissibility of evidence, or the obvious problem of deepfakes.
"The power of AI, including not just documents but mimicking voices, presents huge opportunities for fraud or attempted fraud," he says.
It offers "the ability to interrogate vast databases of material", therefore AI raises questions about expert reports in complex matters.
"The courts need to understand the reasoning behind conclusions and that's a matter which we need to be conscious of and careful about," Chief Justice Bell says.
Legal practitioners who use the evolving technology will need to be cautious about and take responsibility for so-called "hallucinations" in AI, the judge says.
The Law Society and Bar Association are developing guidelines about AI use.
There is also the question of how law students are examined in a way that tests whether they understand legal principles, as opposed to learning how to enter an AI prompt.
But Chief Justice Bell believes it shouldn't provoke a "reflexive, hostile attitude" because there are positive applications, including as a research tool.
"It's extremely complex, both at a practical level but also raising some more philosophical questions."
In some senses, generative AI presents as a modern variety of forgery, which Chief Justice Bell points out isn't a novel issue.
"It's the sophistication of AI and the verisimilitude which can be generated through the very strong computing power that may be taking this issue to a different dimension."
'There's great human drama in the courts'
The Supreme Court of NSW was established when the Third Charter of Justice was proclaimed in Sydney on May 17, 1824, as the then-penal colony evolved and required a system extending beyond military justice.
Some of its oldest buildings including Darlinghurst Courthouse and the King Street Courts Sydney's CBD are still in use, albeit now surrounded by far taller buildings and furnished with modern technology.
Even from its early days, the Supreme Court often served as a form of theatre and a forum reflecting political and social issues.
Chief Justice Bell says in the absence of things like television, for the much smaller community there was "great interest" in the disputes and cases were widely reported by a "vibrant press" in Sydney Town in the 1820s.
Much of that remains true today and one "enduring value" noted by the Chief Justice is freedom of the press — an early priority for the first Chief Justice Sir Francis Forbes.
"There have been, over the years, cases which have attracted more interest than others," he says, citing the matters of Chris Dawson or Kathleen Folbigg as examples.
"They may be cases where the underlying story or the underlying dispute is striking or gripping.
"But there are a lot of cases which don't necessarily attract media interest but which, of course, are vitally important to the litigants themselves."
The court is involved in "a very human process", he says, which might affect questions of liberty, property, children or finances.
"There's great human drama in the courts and part of the role of judges is to resolve those disputes fairly and systematically, but also sensitively."
Increasingly, decisions in high-profile cases are being live-streamed, which Chief Justice Bell believes can be powerful in enhancing the public's understanding of the court's work.
But care should be taken against turning those cases into "celebrity events" and the risk of "trivialising" the court, he warns.
The lessons from a 19th-century 'terrible injustice'
A book released to celebrate the bicentenary, Constant Guardian Changing Times, explores prominent cases and documents notable legal figures.
The 1838 Myall Creek Massacre, which was among many violent clashes between colonists and Aboriginal groups, resulted in at least 28 Indigenous Australians being killed by stockmen.
They had been staying on a station at Myall Creek in a harmonious agreement with its owner, and then attorney-general John Hubert Plunkett decided the case should go to court.
Chief Justice Bell says Plunkett's decision was unpopular, reflecting the prejudices of the time, but he identified "a terrible injustice had been done".
The first trial of the stockmen ended in a speedy acquittal, but Plunkett brought another action and "confronted huge public opprobrium" before convictions and death sentences followed, despite juror intimidation.
"Plunkett was a great figure in NSW colonial history," Chief Justice Bell says.
"His work in the Myall Creek Massacre trials makes him stand out as one of the great courageous barristers in our history."
Indigenous Australians continue to face underlying issues of social deprivation and disadvantage and systemic disadvantage, Chief Justice Bell acknowledges, which are deeper than involving simply the role of the courts.
He calls disproportionate rates of incarceration "a continuing blot on our whole society".
A major step forward, from a justice perspective, was establishing the Aboriginal Legal Service in 1970, along with "game-changing" and overdue decisions such as Mabo.
There is also now a sentencing approach in NSW which identifies systemic disadvantage, along with the District Court's Walama List — a form of sentencing which involves Aboriginal elders and a focus on therapeutic justice.
"One of the main lessons it teaches us is the scope for innovation in justice," Chief Justice Bell says of the latter.
"Trying to, of course, address the offending but at the same time seek to understand and engage with the causes of the offending, is a much more nuanced and preferable way to address the situation."
The female justices who made history
Examining the court's various cases as a lens for social issues also reveals the changing role of women in society and the legal profession.
It's ruled on questions of property rights, marriage, custody, wills — even at an early point whether women should sit on juries.
Women were barred from the legal profession in NSW until 1918, but even after that barrier was lifted, it wasn't until 1987 that the state saw its first female Supreme Court Justice, Jane Mathews, who Chief Justice Bell says was a trailblazer.
"She was one of only two women in her year at law school in the late 1950s, she was the first female crown prosecutor, she was the first female District Court judge," he says.
"She was followed on the bench by Justice Carolyn Simpson, Justice Margaret Beazley – now our governor – Justice Virginia Bell, Justice Patty Bergin and many others since."
A third of the Supreme Court bench is now female, while overall the proportion of women in the judiciary sits just under 45 per cent.
"There's been in the last, I would say 15 years, a major shift in terms of the gender composition of the bench. And that is all good. It's been a very salutary development," Chief Justice Bell says.
"There's broad consensus now that diversity both not only amongst judges, but amongst legal practitioners, barristers and solicitors, public servants involved in the administration of justice, that that diversity enriches and strengthens the work of the courts and the broader administration of justice."
A major milestone arrived in 1999, when Justices Beazley, Simpson and Virginia Bell sat on the first all-female appellate bench in the common law world.
Their portraits now sit among a permanent gallery and history wall outside the Banco Court of the Law Courts building, among an eclectic set of images that highlight the court's significant people and events.
Chief Justice Bell says he hopes they capture the "essential humanity of the process".
He says his philosophy to the bicentenary includes educating the public on the court's role in maintaining the rule of law, as a check on excessive governmental power, and as a forum where disputes are settled.
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