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Citizenship and employment

Employment lawyer Henry Pill explains why questions about nationality are only permissible for parliamentarians

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Deputy Prime Minister Barnaby Joyce during Question Time in the House of Representatives at Parliament House in Canberra, Thursday, August 17, 2017. Photo: AAP Image/Mick Tsikas

21 August 2017

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 Senator 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.

According to 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 says explaining that 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," he adds.

The only questions they are permitted to ask should refer to whether or not the applicant has the right to work in Australia and if they have the right to be employed in another country outside Australia.

Questions such as "What country are you from?", "Where were you born?", "Where are your parents from?" and "In which countries do you have citizenship?" are not acceptable during a job interview.

Dealing with discriminatory interview question can be difficult for workers and jobseekers and the onus should rather be on employers to familiarise themselves with anti-discrimination legislation to ensure they don't ask unlawful questions in the first place, Mr Pill stresses.

"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," he says.

"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."

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