Emeritus Professor Bernadette McSherry2
1Melbourne Law School, Melbourne, Australia, 2Victorian Law Reform Commission, Melbourne, Australia
Biography:
Dr Bernadette McSherry is Emeritus Professor of Law at the University of Melbourne and a Commissioner with the Victorian Law Reform Commission. A Past President of ANZAPPL, she has a BA(Hons), LLB(Hons), LLM from the University of Melbourne, a PhD from York University in Canada and a Grad Dip Psych from Monash University. In 2011, she was elected a Fellow of the Academy of Social Sciences in Australia and a Fellow of the Australian Academy of Law. Dr McSherry has published widely in the fields of mental health law and criminal law.
Generative Artificial Intelligence (GenAI) is a subset of machine learning. It can generate a response or output to a user prompt, using statistical predictions based on large amounts of data. GenAI is now being used by experts to draft or prepare the content of expert reports for the legal system. Such use can save time; enhance analysis of large amounts of data and help identify patterns and connections. On the other hand, GenAI systems have the potential to be biased, not fully explicable and distort the opinion of the expert.[1] There are also concerns with privacy obligations. For example, in 2023, the Office of the Victorian Information Commissioner found that a child protection worker’s use of ChatGPT to draft reports, including a report for the Children’s Court, was a serious breach of information privacy principles.[2] This presentation will explore how courts and tribunals are responding to the ethical and legal challenges of expert evidence and GenAI. It will also outline the Victorian Law Reform Commission’s recommendations on court-issued guidelines in its Attorney-General's reference on Artificial Intelligence in Victoria’s Courts and Tribunals.[3]
References
[1] M Cheong and K Leins, “Who Oversees the Government’s Automated Decision-Making” in J Boughey and K Miller (eds), The Automated State: Implications, Challenges and Opportunities of Public Law (The Federation Press, 2015), 174
[2] OVIC, Investigation into the Use of ChatGPT by a Child Protection Worker (September 2024) <https://ovic.vic.gov.au/regulatory-action/investigation-into-the-use-of-chatgpt-by-a-child-protection-worker/>
[3] VLRC, Artificial Intelligence in Victoria’s Courts and Tribunals: Consultation Paper (October, 2024); Final Report due October 2025.