Guidance Note: Use of Generative Artificial Intelligence in Commission cases
Submission Date: 20 April 2026
The Law Council of Australia provided a submission to the Fair Work Commission (the Commission) to contribute to the consultation on the exposure draft of the Guidance Note: Use of generative artificial intelligence in Commission cases (the Guidance Note).
As noted in the Law Council's 2025 submission on the use of artificial intelligence (AI) in the Federal Court of Australia,1 the advancement of AI, particularly generative artificial intelligence (GenAI), continues to be rapid. There are innumerable opportunities and benefits that AI brings to the community and the legal system, including the potential to facilitate access to justice, enhanced efficiencies and cost savings.
However, there are a range of risks associated with AI use in legal practice, including:
- risks to the integrity of submissions caused by hallucinated case references and inaccuracies;
- risks to the integrity of evidence caused by the use of AI in the preparation of affidavits and witness statements, which may not use the witness’s own words, and therefore may present a misleading account of the witness’s evidence;
- risks of breach of client confidentiality and waiver of privilege if documents or case facts are uploaded to, or shared with, AI tools, particularly open-source tools;
- risks of breach of the implied Harman undertaking2 if discovered documents and other materials produced under compulsion are uploaded to, or shared with, AI tools, particularly open-source tools; and
- risks of infringement of copyright if AI tools engage in unlicensed access to, or use or reproduction of, published works or other copyright material in response to a user’s prompt.
The Law Council further acknowledges reports that use of GenAI, particularly by self-represented litigants, has resulted in unprecedented growth in the workload of the Commission (and courts and tribunals in other jurisdictions), and the corresponding impact on the administration of justice.3
Accordingly, the Law Council supports the policy objective underpinning the Guidance Note and the Commission’s approach which appears to address the risks outlined above. The Law Council recognises that, given the widespread and growing use of AI (including GenAI) by legal practitioners, clients, and self-represented litigants alike, a broadly framed prohibition on the use of AI would be neither practical nor proportionate, and would risk hindering innovation and access to justice.4
The following feedback is primarily directed at suggestions for further refinement and clarification within the Guidance Note and, to the extent possible, to minimise inconsistencies between jurisdictions. To support implementation of the Guidance Note, the Commission may wish to consider exercising increased discretion during the period immediately following its publication, as users acquaint themselves with the new requirements—particularly for parties without the benefit of legal support.
1 Law Council of Australia, Artificial intelligence use in the Federal Court of Australia (Submission, 13 June 2025) 6 [3].
2 Harman v Home Office [1983] 1 AC 280.
3 See, for example, Janek Drevikovsky, ‘Federal Court’s new AI headache’ Australian Financial Review (5 April 2026); David Marin-Guzman, ‘How Chat GPT industrialised the unfair dismissal market’, Australian Financial Review (20 February 2026).
4 Law Council submission, above n1 [8].
Last Updated on 13/05/2026
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