Is AI the Lawyer of Tomorrow? Exploring how AI fits into the New Zealand Legal System
by Vlada Korneeva & Jobanjot Bains
I Introduction
Artificial Intelligence, commonly known as AI, is becoming an increasingly prominent part of everyday life. It is used worldwide by many individuals. But AI is also increasingly being utilized on a vast scale by governments, government entities, and businesses. AI’s ever-increasing relevance in modern life raises the question: what does this mean for the New Zealand Legal system? This article will examine New Zealand’s light touch approach and the ways AI will affect human rights and legal practice.
II How New Zealand Law is Responding: the ‘Light Touch’ Approach
So far, the New Zealand government has laid out a ‘light touch’ approach regarding AI. This means that legal issues will be tackled as they arise, and no concrete legislation will be adopted until then. Guidelines on AI usage are being set out for courts, police, and the like, but there are currently no official AI laws passed by Parliament.
Professor Alexandra Andhov from the University of Auckland cautions that though the approach of “deregulation” has been welcomed in New Zealand, it now poses risks to New Zealand’s innovation. She emphasises that “innovation likes legal certainty,” and maintains that AI should be governed through a comprehensive legal framework. Andhov believes a more regulatory approach will support the creation of AI products and increase trust in AI, resulting in a higher level of innovation.
In contrast, Richard Massey, a partner at Bell Gully, considers the current approach to be beneficial. He cautions that legislation may inhibit the development of AI, and that “it is worth testing the ability of existing laws to govern AI issues first.” He reasons that “implementing an entire new, complex legislative scheme will face extraordinary challenges in keeping pace with a very fast evolving technology”. Josh McBride, a barrister from Richmond Chambers, agrees that concrete legislation will fail to keep up with AI innovation. “If you regulate it heavily, you will be constantly outdated, creating more problems than you solve. The key is to be educated, not regulated.”
Though AI is largely absent from New Zealand statutes, the law is still adapting without formal codification. Common law principles are being developed as AI cases make their way into the courts. In New Zealand Customs Service v McComb, the judge considered the New Zealand Child Exploitation Categorisation Schema, which included AI-generated content. As AI becomes more relevant, judges will have more discussions and make more decisions about it in the courts. Massey comments that the law of AI “should develop through the common law as much as legislation.” Other professionals, however, think that the common law is insufficient. “The laws that we have now are completely incapable of capturing anything,”Andhov says. “If we leave it to the courts, it will take another 15 years.”
III What AI use Means for Human Rights
There are deep concerns around AI’s impacts on human rights, especially with its new uses in the Criminal Justice System. The police have issued guidelines on how AI will be used to help predict crimes. This includes: predicting the probability of a specific crime occurring in a particular area within a specific period of time, as well as identifying vulnerable children within a particular area. Naturally, this raises some concerns: how is this information being obtained? What if the predictions are inaccurate?
Some legal professionals, such as McBride, are confident this type of usage will be regulated through the Privacy Act 2020. Presuming that the information given to AI is gathered in accordance with current laws, its predictive functions could be extremely effective. It may be able to stop crimes before they happen and lessen the strain on police services. The guidelines claim that AI will be used to help prevent serious crimes, such as child predation, terroristic content, and deepfakes.
However, the colossal scalability of AI makes bias an important consideration: it risks reinforcing inequalities and targeting vulnerable groups. Andhov cautions that the risk of bias is too substantial and that it may infringe on the human right to freedom from discrimination. “Protecting human rights should be the starting point of all law,” she says. Of course, humans are also biased, and some may argue that it should not be such a big consideration when humans struggle to be objective themselves. However, Andhov argues that the issue lies mostly with the magnitude at which AI operates compared to humans. “The decision of one biassed judge versus the scalability of AI at large is of a different caliber,” Andhov says. Ashley Smith, an Auckland Solicitor, seconds this, saying that “higher risk systems should have stricter rules, along with transparency and accountability to align with NZBORA rights.”
IV Will AI Replace Legal Practice?
Relying on AI in legal practice comes with problems. AI hallucinates cases which are then presented as legal evidence, such as in O’Driscoll v Rehab Co Mobile Ltd. However, it also makes analysis, argument formulation, and editing much more efficient. McBride thinks that AI has both positive and negative effects in practice, though he does not see the “integrity of the legal system being challenged” by its increasing use. However, some think that AI could be dangerous for the innovative nature of legal practice. Andhov says that “once you start to really rely on [AI], you are losing your cognitive abilities.” And after you lose that, she says, “what’s left?”
Andhov also worries about the potential for breaching privacy by feeding AI confidential legal details: “I think a lot of barristers are currently breaching privacy laws [with how they’re using AI].” This concern is being addressed in practice. For example, McBride recently launched Tautoru.ai, which informs legal professionals what information is legal to put into certain AI engines.
There is also concern about AI decreasing job opportunities in the legal field. However, Dr Andhov says that despite AI’s other risks, “we should not be concerned with a lack of jobs.” Mr McBride agrees, saying that there will be jobs, though they will have different requirements. “Junior lawyers need to be curious, ambiguous, and interested,” he says.
V Conclusion
There are potential risks and benefits to implementing AI into our legal system. Andhov reassures that “we should not be concerned.” She says that, though there are many nuances to AI use, “there are a lot of voices that try to raise awareness, raise education, and raise critical thinking.” Massey echoes the sentiment, saying that he “remains optimistic” due to the positive aspects of AI.
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