Check section 42 and any section 43A special power before advising
MaintainedLast reviewed
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- List the function the lawyer identifies, the resource material in the brief, and the section the other side has named. Do not write the advice on whether the protection applies.
- What the lawyer must review
- The lawyer writes the advice. The tool only lists the function and the section named.
- Keep section 42 and section 43A apart. They are different tests.
- Keep health and wage records in a firm-controlled tool, not a public one.
- ASCR r 9 and APP 11 apply. Decide if a breach is notifiable under the Privacy Act 1988 (Cth).
Rules that apply
The document starts from the task name. Change it if this piece of work is different.
The work product
Forum. New South Wales. A claim against a public or other authority where section 42 or section 43A is named.
Produce. A list of the function, the resource material and the section named. The lawyer writes the advice.
Have ready. The function the lawyer identifies; Resource material in the brief; The section the other side has named.
Example of the limit. Illustrative example: The defence names section 43A. The list records the power the letter describes and the section 43A(3) words. It does not decide whether the act was unreasonable.
Stop and hand it back when
- The question is road or footpath non-feasance.
- The tool is asked to write the advice.
Sources for this task were checked on 2026-10-23.
Who does what
| Role | What they do |
|---|---|
| Assistance | Supporting preparation only. List the function the lawyer identifies, the resource material in the brief, and the section the other side has named. Do not write the advice on whether the protection applies. The tool writes nothing into the document. Substantive advice, judgement and any restricted content remain with the responsible human. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- If section 42 is named, list the four principles, including that the general allocation of resources is not open to challenge.
- If section 43A is named, record whether the power is conferred by statute and is of a kind persons generally are not authorised to exercise without specific statutory authority.
- Record the section 43A(3) test as opened: so unreasonable that no authority with that power could properly consider the act or omission a reasonable exercise or failure.
- Do not answer a road or footpath non-feasance question here.
Sources
- Civil Liability Act 2002 (NSW) section 42 · 2026-10-23
- Civil Liability Act 2002 (NSW) section 43A · 2026-10-23
- Supreme Court of NSW Practice Note SC Gen 23 · 2026-10-23
Section 43A(4) says that, for a special statutory power to prohibit or regulate an activity, the section applies in addition to section 44. Section 44 was not opened.
If this is filed in the Supreme Court of New South Wales, Practice Note SC Gen 23, issued on 28 January 2025 and commenced on 3 February 2025, bars generative AI from the content of an affidavit or witness statement, and from an expert report without prior leave, subject to paragraph 23.