By Paul Gregoire and Ugur Nedim
As the state’s top judge, New South Wales Chief Justice Andrew Bell, gave the annual opening of the law term address on 6 February 2025, his Honour identified a number of threats to maintaining the rule of law in the jurisdiction of New South Wales, which range from the dangers of handing over legal matters to artificial intelligence, the recent erosion of legal norms in the US and the exorbitant cost of practical legal training.
“From a lawyer’s perspective… recent events both domestically and abroad have generated a sense of great disquiet and anxiety about the state of society and the rule of law… in our contemporary world,” his Honour said in commencing this year’s 6 February Opening of Law Term Dinner Address.
And the top judge’s speech was certainly of the moment, as a large portion of it reflected upon developments in the United States since the inauguration of Donald Trump as president, which only occurred a little over a fortnight prior.
But such a distinct threat has the new US administration posed to the rule of law both domestically in the States and right around the planet since 20 January, that in addressing a threat to the rule of law in this state of NSW, one cannot, in the present context, ignore these developments in respect of one of our nation’s closest allies.
The other chief concern for Justice Bell, of which he’d covered in a 2024 NSW Supreme Court guidance note, is the impact that generative AI could have on the NSW court system if its use is not limited, as three cases over the last 12 months involved lawyers and litigants applying AI to generate nonexistent case references and false transcript extracts, as well as to produce character references.
The nonhuman threat to the rule
In opening the 2025 law term, the NSW Chief Justice addressed the “distressing and terrifying rise in antisemitic activity in our city”, along with Elon Musk’s backing of far-right German politicians, Mark Zuckerberg’s dropping of fact-checking on Meta sites and attacks on historical truths in general.
“Misinformation and disinformation are particularly problematic given the rise of Gen AI where open-sourced large language models generate answers to questions by drawing on or ‘scraping’ underlying databases, typically without any filter to discriminate between historically accurate and inaccurate data,” Justice Bell warned.
“Answers will reflect the content of what has been scraped or according to what the relevant algorithm has been programmed to detect,” his Honour added.
The head judge warned that developments in Gen AI are contributing to “truth decay”, as the underlying data used to generate new information, as well as algorithms, can be developed in such a manner that historical truths are obscured, and he added that such historical revisionism, when coupled with “moral indifference”, represents a “profound risk” to society and the rule of law.
Justice Bell explained that just as the Chinese developed AI platform DeepSeek has been found to generate inaccurate responses in regard to the 1989 Tiananmen Square massacre, such platforms produced in other nations can too be developed to obscure certain past truths in order to produce a revised version of history.
The top judge makes clear that he’s keenly aware the great potential AI holds, however he adds that the “legal profession is and should be a critical, thinking profession”, and “qualified lawyers are admitted to practice law”, of which they remain responsible for, and this does not mean delegating the job to a sophisticated computer program.
US threats to rule of law
A further threat to the rule of law on the global stage that the NSW Chief Justice identified during his address is the swag of pardons the outgoing and incoming US presidents have recently granted, which have included the early release of those sentenced to time by the United States judiciary.
Former US president Joe Biden granted a number of preemptive pardons as he was leaving office in order to protect family members and Democrat political figures from prosecution for any “offences against the United States” over a given period going back a number of years, in order to prevent the Trump administration from launching reprisal prosecutions against these people during its term.
On taking office, Trump then released hundreds of inmates who’d either pleaded guilty to or been convicted over charges in relation to the 6 January 2021 storming of Capitol Hill, along with a pardon for the creator of online drug market Silk Road, Ross William Ulbricht, who was serving seven life sentences, after the president was provided with campaign funding by Ulbricht’s supporters.
The NSW Chief Justice has called out these pardons, as the Ulbricht example reveals that even with no suggestion of an unfair trial, court sentences can be quashed in exchange for financial kickbacks, while, in terms of 6 January rioters, they’ve been rewarded for taking the law into their own hands, and Bell raises concerns about this influencing local members of the sovereign citizen movement.
Exorbitant fees a prerequisite to practice
The last major issue Justice Bell rose as a threat to the maintenance of the rule of law is that the College of Law, a nonprofit organisation that provides practical legal training (PLT), which is a “prerequisite for admission to practice” law in NSW, is charging between $11,000 to $12,000 in order to obtain the PLT graduate diploma that leads to becoming a legal practitioner in this state.
“This is an extremely large amount of money which may well present a significant barrier to entry to the legal profession, especially given the increasing cost of university fees,” the NSW Chief Justice underscored.
The top judge outlined that the not-for-profit college situated in the northern Sydney suburb of St Leonards is turning an annual profit of $16 million, and over the last decade its accrued $180 million via the provision of PLT.
On learning of this last year, Justice Bell then approached the management of the College of Law and persuaded it to drop the price of PLT to $9,200.
But the top judge also considers the college should not have amounted such profits and that it should now be funnelling them back into the legal profession via the forgiveness of past fees and future fee waivers.
A heaviness foreshadowing the term
NSW Chief Justice Bell also lamented that the state’s judiciary will soon be losing over 60 years of experience, with the retirement of a number of “highly respected” judges, which is about to take place and includes that of NSW Justices John Basten, Fabian Gleeson, David Davies and James Stevenson.
“Finally, despite the ‘heaviness’ of aspects of my address this evening, I wish you all well for the 2025 legal year,” the NSW top judge told his audience on 6 February.
“Stay strong and, as my old clerk Paul Daley always says, ‘don’t forget to smell the roses’.”
