Australia's Fair Work Commission published a guidance note on August 24, 2026 headed "Use of generative artificial intelligence in Commission cases." It explains "what you must do if you use generative artificial intelligence (GenAI) to help you prepare an application to the Fair Work Commission or any other document to be lodged in a Commission case." The note says it "commences on 20 October 2026," and that it "will be amended from time to time" because GenAI is developing at a rapid pace. Parts of it follow, not the whole.
Three Requirements
The note applies when someone uses GenAI to help them "create, write, edit, modify or otherwise prepare" a document to be lodged in a case. Using GenAI only to check spelling or grammar, or to format a document, is not included.
The first requirement says, "You must state in the document that GenAI was used and how you used it." Telling the Commission, the note says, will not change how it treats the merits of a document, provided the requirements are met. Not telling it might lead to the document being given less weight or disregarded, to an order to pay costs, or to the case being dismissed.
The second requirement is to check the document, make any changes needed so that all its details are correct and relevant to the case, and then state in the document that this was done. In checking, a person must make sure that facts and evidence referred to are correct and exist. Cases, legislation, textbooks and articles must exist "and support the legal positions you say they support." Extracts and quotes must be correct and must come from the sources they are said to come from.
The third requirement is for a witness statement or declaration prepared with GenAI's help. It must be checked so that it "is based on your own knowledge, reflects your own words and is true to the best of your knowledge," and must say so. The note adds that GenAI should not be used "to create the factual content of a witness statement or declaration." It can be used to transcribe a person's voice or to translate another language into English, but the statement must still reflect the witness's own words.
Checked by a Person
The note gives its reasons. Requirements 2 and 3, it says, "set basic standards for checking documents that anyone should comply with whether or not they use GenAI." GenAI, it says, "is not capable of reasoning or understanding information as a person would." It may misstate the law, and it "may make up fake cases, citations or quotes, or refer to laws, articles or legal texts that do not exist." It may also "get facts wrong and confirm that information or evidence is true if asked, even when it is not."
A document's details cannot be checked "by asking the same GenAI tool or a different GenAI tool to check the document," the note says, and "the checking must be done by a person." It lists sources known to be correct for that work, among them the Commission's case law benchbooks and legal textbooks, and, for Commonwealth legislation, the Federal Register of Legislation. It recommends hyperlinks to all cases a document refers to.
A statement that a document was checked is only as good as the check behind it. The note asks for the statement, and it puts the check on a person, not on a tool.
Lawyers, Representatives and Confidential Information
The standard for responsible use of GenAI in Commission cases is "more onerous for a legal practitioner," the note says. A legal practitioner must also maintain high ethical standards and comply with professional obligations in any use of GenAI in a Commission case, and if a legal practitioner fails to do so, "a complaint may be made to their legal services regulator." A professional representative who uses GenAI in preparing a document must include hyperlinks to all case law it refers to, provided hyperlinks are available. The note's definition of a professional representative includes a lawyer or paid agent, and a human resources adviser employed by the person represented.
On data, the note says people should not give personal information about others involved in a case, or confidential information about it, "to public GenAI or to any GenAI that may not keep the information secure from disclosure." Its examples of confidential information include information from settlement discussions in a Commission conference, and legal or financial advice.
Where a document says it was checked, what would show which person checked it, and against which sources?
Sources
- Fair Work Commission, Australia. Guidance note: Use of generative artificial intelligence in Commission cases. 24 August 2026. court