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Citizenship and employment: Why questions about nationality are only permissible for parliamentarians

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Questions about the citizenship of Australian parliamentarians have dominated headlines in recent weeks, but employment lawyers are warning bosses that asking their potential employees about their cultural heritage could be a breach of anti-discrimination laws.

Nationals MP Barnaby Joyce became the most senior politician to become embroiled in the controversy surrounding Section 44 of the Constitution this week, after it was revealed he was a dual Australian and New Zealand citizen by descent.

But Slater and Gordon Employment Lawyer Henry Pill said questions about a person’s citizenship are only permissible in the context of Parliament.

“State and federal anti-discrimination laws prohibit questions about a person’s race or nationality in the workplace,” Mr Pill said.

“While politicians need to be asked about their citizenship status during pre-selection, that sort of questioning is off limits in an ordinary job interview.

“Questions during interviews need to comply with anti-discrimination laws and that includes avoiding unnecessary questions about nationality, race, religion, sexuality and age.”

What questions are okay?

Mr Pill said employers can still ask questions about whether an employee or potential employee has the right to work in Australia, or any other country that is required for the role

Okay 

  • Do you have the right to work in Australia?
  • This job requires work in another country; do you have the right to work there?

Not Okay

  • What country are you from?
  • Where were you born?
  • Where are your parents from?
  • In which countries do you have citizenship?

What can I do if my boss or potential employer asks about my citizenship?

Mr Pill said dealing with discriminatory interview question can be difficult for workers and jobseekers.

“One option is to politely decline to answer, but it’s a good idea to make a note of the question and keep it in mind in case you need to make a claim for discrimination,” Mr Pill said.

“Complaints can be made to the Australian Human Rights Commission and each state also has an anti-discrimination commission or organisation that can assist, and you can also seek legal advice.

“However, the onus should really be on employers to familiarise themselves with anti-discrimination legislation and ensure they don’t ask unlawful questions in the first place.”