Slater and Gordon Lawyers said its employment lawyers have increasingly warned employers that asking their potential employees about their cultural heritage could be a breach of anti-discrimination laws.
The firm noted that this issue has come to light given the controversy surrounding Section 44 of the Constitution, particularly this week after it was revealed that high-profile Nationals senator and deputy prime minister Barnaby Joyce was a dual Australian and New Zealand citizen by descent.
Slater and Gordon employment lawyer Henry Pill said he and his firm have had to stress to clients that 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.”
Mr Pill has advised employers that they can still ask questions which will divulge whether an employee or potential employee has the right to work in Australia, or any other country that is required for the role.
However, he noted that employers cannot ask what country the employees or potential employees are from, where they were born, where their parents are from and in which countries do they have citizenship.
Mr Pill acknowledged that 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 advised.
“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.”