FWC’s AI Guidance Note – a step in which direction?

Stronger AI requirements in the Australian workplace dispute tribunal have experts questioning how they will affect those without legal experience – and by extension, judicial accessibility.

As the Fair Work Commission’s AI Guidance Note officially takes effect today (20 October), HR Leader spoke to barrister Ian Neil SC to examine the implications of the regulations on accessibility and judicial outcomes.

Reflecting on a problem that has been growing both quickly and exponentially, Neil said the commission is dealing with an overwhelming amount of applications of all kinds – an increase of 70 per cent over the last three years – of which AI is a very significant factor in both scale and quality.

Neil praised the core requirements of disclosure, verification and authenticity that the AI Guidance Note provides, but noted that applicants will likely struggle, specifically those who base their applications on knowledge from AI.

He said: “Verification requires that every reference in a document that has been created using AI, every reference to a decision, to a statutory provision, to an aspect of the evidence, must be verified by the person creating the document, personally checked by them. And I think that requires a degree of knowledge and familiarity with the underlying source material that many applicants will struggle to possess.”

“I think the real problem is, will applicants be able to do what the guidance note requires?”

This sentiment outlines the core issue of AI – especially in a legal setting – while it may open doors and improve accessibility on the ground floor, it is unlikely to achieve favourable judicial outcomes in the long term.

In this vein, Neil said the idea of AI is often more alluring than its practice, adding that “more has been promised than has been delivered”.

He explained that the quality of AI remains the core issue for those using and receiving content, not only taking up commission time with a greater amount of applications, but content that features, as it is colloquially known, AI slop.

“AI is marked by sycophancy and hallucinations. It’s designed to tell people what they want to hear. And that’s been a real problem in the legal system generally,” Neil said.

Accepting that it is too soon to fully gauge the impact of AI in the sector and the impact of the FWC’s AI Guidance Note, Neil said there needs to be a more common approach across all courts and tribunals in Australia.

For the time being, Neil surmised that the guidelines only reinforce that “no one can rely entirely on AI to generate the content of documents … they have to apply their own mind to it or at least there must be some human intervention”.

“A person must stand behind what the AI creates,” he said.

As recently covered, legal and HR experts generally praised the introduction of AI regulation within the commission, but questioned how it would operate in practice – especially for those without legal expertise at the centre of application.

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