14.08.2025
Address to the Australian Law Forum 2025 by ALRC President the Hon Justice Mordy Bromberg, 14 August 2025
Source: Lawyers Weekly (Instagram: Lawyers Weekly)
Transcript
CHECK AGAINST DELIVERY
“Sensation is unorganised stimulus, perception is organised sensation, conception is organised perception, science is organised knowledge, wisdom is organised life: each is a greater degree of order, and sequence and unity.”
At the essence of that quote – a quote often attributed to Immanuel Kant – is the idea that wisdom is more valuable than intelligence. I will come back to that because it is at the heart of one of the fundamental propositions I want to develop and leave you with. That proposition is this – in a changing world and, in particular, in a legal world about to be transformed by Artificial Intelligence, lawyers need to lean into and enhance the uniquely human skills we have that AI will complement but cannot replicate.
But before I develop that proposition, let me firstly say good morning and tell you how pleased I am to be joining you here at the inaugural Australian Law Forum. I would like to commence my address by acknowledging the Traditional Custodians of the lands on which we are meeting here today, the Gadigal Peoples of the Eora Nation, and pay my respects to their Elders past and present, as well as any First Nations people in attendance here today. Not only are the First Nations of Australia the oldest continuing cultures on the planet, they are also the keepers of a long tradition and history and of an ancient philosophy which I think shares my own view that wisdom is of a greater order of value than intelligence.
I understand that this audience today is a blend of lawyers from the major law firms, boutique firms, and in-house counsel. My intention is to speak to you today on a tension that all of us legal professionals are beginning to face in our work, whether in the world of law reform, in the courts, in private practice, or in our pro bono and community work. That tension is, in an environment that changes so rapidly, how do we both adapt to keep up while holding firm to the foundational virtues that underpin the worth of our profession and the services that we provide? What are the qualities that must sustain us through the next great challenge brought to our door by the winds of change?
Most of us would agree that the complexity and pace of change in the world is accelerating across all domains. Technology and data, health and science, environment and nature, social and individual norms and values, political and national dynamics and power. All of these areas are experiencing major shifts at speeds which test all of us both as professionals and as human beings.
The last five years have certainly demonstrated how rapidly change can take hold in so many aspects of our life. Let me take an example from the world of employment, a particular interest of mine. Five years ago, we experienced an unprecedented shift in our working lives as working from home became a new normal. We took our devices home expecting a few weeks of remote work, which became months, and then became a new pattern of hybrid work.
The working from home revolution – which has brought about arguably the greatest shift in power from employers to employees in living memory – is an example of the type of change that brings new opportunities and challenges to how we ourselves work, how we work with others, and how the law guides and shapes our shared expectations and boundaries about where work and life intersect.
And as the world changes, so too should the law. Leading the Australian Law Reform Commission in its 49th and now its 50th year of providing government with the best available advice on the law and how it may be designed and improved, I have learnt that change is the catalyst for law reform. Law is about regulating human behaviour, and law reform is about reforming the law to change behaviour or otherwise accommodate changed circumstances. Sometimes change comes in the form of changed social mores or attitudes. In such a case, the law needs to be updated to reflect evolving societal values. Or often, changed circumstances brought about by science or technology call for the reform of the law.
A case in point is the ALRC’s current review of Australia’s human tissue laws, some half a century after the ALRC first did so in the 1970s. Since the ALRC originally examined the laws relating to the regulation of human tissue, medical science has dramatically shifted our understandings of health and the capabilities for sustaining healthy organs for transplantation after a donor has died. The opportunities created by medical advances which do not diminish the inherent worth and dignity of life should be facilitated by the law. That challenge has raised difficult ethical issues, including whether death should now be differently defined.
Another case in point is the advent of Artificial Intelligence. Let me touch on that subject briefly because I think the current debate about it and whether and how the law should regulate Artificial Intelligence suffers from a number of fundamental misconceptions.
First, the debate does not recognise nor grapple with the enormity of the law reform task. Artificial Intelligence has the capacity to affect and to influence human behaviour on a scale which we have never before experienced. Because every law in one way or another seeks to regulate human behaviour, an instrument with that capacity will likely touch most of our laws.
AI is not just another new product, which our product liability laws will readily accommodate. It is not just another technological advancement on the same continuum as available technology. It is a different species of technology. As Waleed Aly recently described it – “technology has hitherto been something we build. We determine what it is and what it will do. But AI is not something we build. It is instead something we train. That is, we give it the tools to direct itself.”
The autonomy provided to AI is unique and gives rise to new and challenging risks of harm. The likely ubiquity of AI and its forthcoming role as the dominant purchasing and transactional agent for us all, together with its capacity to become the primary source of our information and news, also gives rise to risks never before encountered on this scale.
Yet, much of the current debate on the regulation of AI proceeds as though we are clear-eyed about the potential for risk and the capacity for our current laws to effectively address those risks.
The advent of Artificial Intelligence requires that we firstly identify the potential risks and harms that Artificial Intelligence may create. We then need to review the ‘Statute Book’ and many aspects of the common law to discern whether the law currently addresses those potential harms. Second, we will need to evaluate the extent to which the law addresses those harms effectively. That exercise will reveal the gaps in the law, those harms that need to be but are not going to be effectively addressed by our current laws.
The enormity of that exercise needs to be understood in the context of AI throwing up unique regulatory challenges. Many AI products allow for adaptation by a distributor as well as by the ultimate user. Who should be made legally responsible for any harm caused and in what measure will likely raise difficult legal questions. The attribution of legal liability will also likely face problems of proof because of AI’s lack of transparency – the algorithmic black box.
Then, of course, the law reform process will be faced with deciding whether relief from harm provided by the law should be preventative or merely remedial, or, perhaps a combination of both. Our laws ordinarily provide for preventative mechanisms to deal with products capable of causing serious harms, such as dangerous goods, hazardous chemicals or pharmaceuticals. Once we have identified and evaluated the full range of harms Artificial Intelligence is capable of causing, difficult evaluative judgements will need to be made about the nature of the relief from harm that the law should provide.
For those reasons amongst others, I regard the regulation of Artificial Intelligence as the largest and most complex law reform exercise that currently confronts Australia. It is the profundity and breadth of this change and challenge that will require us to take a deep dive and provide well-considered evidence-based solutions.
Yet, the public debate we are having has barely identified the fact that the regulation of Artificial Intelligence is a law reform exercise, let alone the largest of its kind. The debate about the regulation of Artificial Intelligence seems to be focused on whether we enact a single Artificial Intelligence Act or regulate Artificial Intelligence by amending existing laws, should that be required. That is a question largely of form and not of substance. We need to address substance first, and we need to engage in the evaluative law reform exercise I have described in order to appreciate what, if any, changes to our current laws need to be made. That exercise will enable the government to properly consider and determine the policy objectives that the laws regulating artificial intelligence should facilitate.
Whether the regulation of artificial intelligence should be “light touch” is not a question that can be properly answered without first identifying the potential risks and harms of AI, the extent to which the law is currently capable of addressing those risks and harms effectively, and the extent to which the regulation of those risks and harms may impede Artificial Intelligence from delivering the productivity benefits that it can obviously provide.
If we do not do that, the law will be left to chase a tail it will never ever catch.
Artificial Intelligence is potent, and it will be indispensable. It is wrong, however, to say that it is unstoppable and therefore that it cannot be regulated. That is another false assumption in the current debate.
However, whether Artificial Intelligence is regulated and whatever form that regulation takes, AI is and will remain an agent of change that will transform the legal profession. And so it should. There are aspects of our work and some aspects of the services the legal profession provides which will be greatly enhanced by Artificial Intelligence. There are also tasks which are currently provided by lawyers which AI will replace. It may be that AI will result in fewer lawyers.
We ought to be enthused by those features of AI that will enhance the services we provide. We are, however, somewhat threatened by the notion that AI will replace us.
During this conference, the lawyers here gathered, will be given opportunities to better understand the way that Artificial Intelligence can enhance the work that you do. I am personally optimistic that AI can and will make very substantial contributions to the productivity of legal professionals. I am confident that AI will get better at what it does. However, I think it important that we also recognise the limitations of AI.
To my mind, some of the forecasts I have seen which suggest that many tens of thousands of lawyers will be left without a job, are likely to be misplaced. They are likely to be wrong because of a failure to fully understand the valuable skills that lawyers have and the extent to which AI can or will replicate those skills.
First, the practise of the law is highly interpersonal. It requires human interaction and collaboration. It involves building important relationships with clients, opponents, government officials and others. Interpersonal skills, including emotional intelligence are significant to the lawyer’s critical function of persuasion and advocacy, both in and out of court.
Artificial Intelligence has no charm or charisma. It has no capacity to create bonds based on personal affection and trust. It has no understanding of those nuances of human communications which are not captured by data. It cannot replicate the trusting relationship that a client has with their respected lawyer, nor the trust that a judge has of reputable counsel. It does not network. It will not persuade new clients to join your practise, nor maintain and service the good relations lawyers must have with their existing clients.
Artificial Intelligence is data driven. AI finds patterns in data and uses that to make predictions designed to communicate the most relevant response to the prompt or the question asked of it. This is a form of intelligence. It is a means of organising knowledge that lawyers use extensively. We lawyers collect and organise evidence into rational categories. AI can do that. We identify and collect the law on a particular subject, be it statutory or case-law. AI can do that too. AI is as good at and potentially much better at dealing with what is known. Organising existing knowledge requires intelligence and AI has that intelligence.
Where the law is settled and the legal answer to the legal dispute or problem is obvious, organising existing knowledge about the law to identify the legal answer will be sufficient. But a capacity to organise existing knowledge will not suffice if the legal answer is unclear or ambiguous by reference to the existing state of knowledge of the law. That is because the legal answer, whether given by way of a lawyer’s advice or the decision of a court, will involve a judgement. In the case of a lawyer’s advice, that judgement will require a prediction about what is currently not known in law. In the case of a court’s decision, that judgement will involve creating new knowledge about the law.
The skill required to make those judgements is a far more valuable skill of a lawyer than the skill of organising existing knowledge. That is so because people who need legal advice and assistance will usually seek it where the law is unclear, rather than clear—where the legal answer needs to be predicted rather than merely stated by reference to what is already known.
The capacity to make those judgements—judgements upon which reasonable minds will often differ – depend not only on intelligence but on wisdom. Wisdom is a skill of a greater degree of order than mere intelligence. It is far harder to be wise than it is to be smart. And wisdom is a skill developed and exercised not merely by reference to data but by reference to innately human experiences that AI does not share.
Wisdom requires more than knowledge of existing data. It requires human experience and human understandings that are not well captured by data. For the wise lawyer, wisdom entails intuition and creativity of a kind not provided by data analysis. It includes navigating moral dilemmas and making value judgements in complex legal situations, where context, language, and nuance provide important clues in the search for parliamentary intent or in predicting how the common law or a judge or a jury will respond to any given factual situation.
Wisdom is also required in asking the right questions when trying to find the right legal solution. This is another task AI is not well-suited to undertake.
Wisdom includes creating new knowledge and not merely intelligently organising existing knowledge. It is a uniquely human contribution to good legal advice and representation. Whilst AI can complement wisdom, it cannot replace it.
The delivery of justice is a heavy responsibility and one that cannot be well executed without wisdom.
The legal profession will, I think, be resilient in meeting the challenge of AI. It can and I believe will do so by leaning in and focusing on those invaluable and irreplaceable skills good lawyers have. In the face of AI’s challenge to our profession, you need to make your clients appreciate that whilst AI can complement what you offer, it cannot and will not replace the value-adding critical skills which only the human lawyer can provide.
I hope that my analysis, including the dichotomy I have drawn between intelligence and wisdom, helps you to do so.
