Recommendations
Chapter 4: Australian and global AI regulation
1.The Victorian Government should collaborate with the Australian Government and other states and territories to develop a consistent and agreed national approach to AI regulation. While national AI regulation is important for safety and consistency, care must be given to ensure any national reform maintains judicial independence.
Chapter 5: Is legislative reform necessary for safe use of AI in courts and tribunals?
2.Victoria’s courts and VCAT should publicly state how their privacy and AI policies seek to be consistent with the Victorian Information Privacy Principles.
3.A court-led expert working group should monitor the suitability of the Evidence Act 2008 (Vic) to address emerging AI-related evidence issues, and report annually to the Chief Justice of Victoria.
Chapter 6: Principles to guide the safe use of AI in courts and tribunals
4.The Commission’s principles should be adopted and applied where relevant by Victoria’s courts and VCAT when making decisions about the use of AI. The individual principles should be employed to achieve the overarching objective of maintaining public trust.
Chapter 7: Court user guidelines to support safe use of AI
Consistency of court user guidelines
5.The Supreme Court’s Guidelines for Litigants: Responsible Use of Artificial Intelligence, as varied by recommendations 7 to 11, should be adopted by Victoria’s courts and VCAT.
6.The Chief Justice of Victoria should consider working with his counterparts through the Council of Chief Justices to seek to achieve consistency nationally on the response to AI throughout Australia’s courts and tribunals.
Scope of court user guidelines
7.The Supreme Court’s guidelines should be updated to:
a.define AI, GenAI, public AI and closed AI
b.apply to civil and criminal matters
c.apply to all court users including lawyers, litigants (whether represented or not) and witnesses (lay and expert)
d.contain the Commission’s principles.
8.The Supreme Court’s guidelines should state that court users can use GenAI in the preparation of submissions but to ensure accuracy court users should:
a.fact check and proofread GenAI content
b.edit and adapt GenAI content to suit the situation
c.verify references
d.use sources known to be accurate
e.not use GenAI to verify subsections a to d above.
9.A person making a witness statement, character reference or similar statement must verify its accuracy and that it represents their view.
10.The Expert Witness Code of Conduct applicable in civil trials should be updated to align with the Practice Note Expert Evidence in Criminal Trials in relation to the use of AI by experts.
11.The Supreme Court guidelines should refer to obligations for the use of AI by expert witnesses contained in the:
a.Practice Note Expert Evidence in Criminal Trials and
b.Expert Witness Code of Conduct (once updated as per recommendation 10).
Chapter 8: Judicial officer guidelines to support safe use of AI
Consistency of judicial officer guidelines
12.The Chief Justice of Victoria, in consultation with Victorian Heads of Jurisdiction, should consider developing public guidelines for all judicial officers in Victoria to support public trust in the administration of justice and inform the safe use and understanding of AI. Based on these, the President of VCAT should release guidelines for tribunal members.
Scope of judicial officer guidelines
13.Guidelines for judicial officers should prohibit the use of AI for judicial decision-making.
14.Guidelines for judicial officers should clarify that the prohibition on AI use for judicial decision-making is not intended to encompass supportive uses of AI.
15.Guidelines for judicial officers should encourage judicial support staff to discuss their use of AI tools with their supervising judicial officer.
Chapter 9: Governance to support AI innovation
Governance bodies, roles and responsibilities
16.A technology and innovation committee should be established by the Courts Council to support ongoing governance of AI across Victoria’s courts and VCAT.
17.Coordination and consistency in AI governance should be promoted by the Courts Council across Victoria’s courts and VCAT.
18.A technology and innovation judicial officer or VCAT member should be appointed by the head of each of Victoria’s court jurisdictions and VCAT to support AI development and innovation.
Scope of an AI policy
19.An AI policy for Court Services Victoria staff and court and tribunal staff should include the Commission’s principles on the safe and acceptable use of AI.
20.Court Services Victoria should coordinate an AI inventory, reasonably identifying AI tools designed, developed. deployed or procured by Court Services Victoria, Victoria’s courts and VCAT which should be published and updated annually.
21.Victoria’s courts and VCAT should consult with people likely affected by AI tools based on the AI assurance framework (set out in recommendation 23). Consultation should occur before implementing AI tools and throughout the AI lifecycle.
22.Victoria’s courts and VCAT should:
a.notify people whose rights are significantly affected by a decision made or materially influenced by AI. Notification should include clear and understandable information on how the decision was made.
b.ensure there is human oversight of decisions made or materially influenced by AI. The extent of oversight will depend on the context.
AI assurance framework
23.Court Services Victoria should develop an AI Assurance Framework aligned with the Commission’s principles to manage the ethics and risks associated with AI use cases for Victoria’s courts and VCAT, based on the pilot VPS AI Assurance Framework.
Chapter 10: Promoting awareness and education
Education for judicial officers and staff
24.AI education and training for judicial officers and VCAT members should continue to be developed and expanded by the Judicial College of Victoria.
25.Induction and ongoing AI training for judicial officers, VCAT members and support staff should be provided by Victoria’s courts and VCAT.
26.Court Services Victoria should continue to develop induction and ongoing training for staff, including when new AI tools are implemented.
Education for lawyers
27.Guidance for Victorian lawyers on AI use and its intersection with professional obligations should continue to be developed and updated by the Victorian Legal Services Board and Commissioner.
28.The Law Institute of Victoria and the Victorian Bar should continue to provide education to members about AI and legal practice. The educational program should be formalised and expanded to meet ongoing challenges.
29.The Law Council of Australia should update the Commentary to the Australian Solicitors Conduct Rules in relation to AI.
Education for courts users and the public
30.Victoria’s courts and VCAT should:
a.ensure people within court registries can assist court users with the use of court-based AI systems
b.develop AI-related public awareness resources for people from diverse backgrounds.
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