You Can’t Ask That! Illegal Questions In Interviews

Hiring the right person is exciting - but a misstep in your interview questions can create legal risk for your business in Australia.

It’s common to make small talk or be curious about a candidate’s background. However, certain topics are off-limits under discrimination and privacy laws. Asking the wrong thing (even with good intentions) can lead to complaints, investigations and costly disputes.

In this guide, we break down what makes an interview question unlawful, examples of questions you should avoid, what you can ask instead, and how to build a compliant, fair and effective hiring process.

What Makes A Question Illegal In Job Interviews?

In Australia, several laws protect candidates from unlawful treatment during recruitment. These include federal anti-discrimination laws (such as the Sex Discrimination Act, Disability Discrimination Act, Racial Discrimination Act, and Age Discrimination Act), general protections under the Fair Work Act 2009 (Cth), and similar state and territory laws.

While there’s no single list of “banned” questions, a question is likely to be unlawful if it:

• Directly asks about a protected attribute (e.g. age, sex, sexual orientation, gender identity, intersex status, relationship status, pregnancy, family or carer’s responsibilities, disability, race, religion, political opinion, national extraction or social origin).
• Could be used to discriminate against the candidate in the hiring decision.
• Intrudes on personal information without a lawful and necessary purpose (privacy concerns).

There are narrow exceptions where a protected attribute relates to the “inherent requirements” of a role (for example, a genuine physical requirement or a role requiring work rights in Australia). However, the bar is high and you must be able to show a legitimate, job-related reason for asking.

If you want a deeper overview of how this plays out across common scenarios, it helps to review examples of illegal interview questions and the lawful alternatives.

Questions You Should Never Ask (With Safer Alternatives)

Below are common red flags with practical examples. For each, we’ve included lawful ways to get the information you actually need to assess the role.

Age And Date Of Birth

Don’t ask: “How old are you?” or “What year did you graduate?”

Why it’s a problem: Age is a protected attribute. Questions like this suggest age may influence your hiring decision.

Ask instead: “Are you legally permitted to work in Australia?” and “Are you able to perform the role’s inherent requirements (e.g. manual handling, night shifts)?”

Sex, Gender Identity, Sexual Orientation And Relationship Status

Don’t ask: “Are you married?”, “Do you plan to have children?”, “What pronouns do you use?” (unless volunteered), or questions about sexual orientation.

Why it’s a problem: These topics touch protected attributes and family responsibilities, and are not relevant to job performance.

Ask instead: “This role includes weekend work on a rotating roster - are you available for these shifts?” Focus on availability, not personal life or future intentions.

Pregnancy, Family Or Carer’s Responsibilities

Don’t ask: “Are you pregnant?”, “Do you have kids?”, “How will you manage childcare?”

Why it’s a problem: These questions invite discrimination based on pregnancy or family status.

Ask instead: “These are the core hours and travel requirements for the role - are you able to meet them?” If flexible work is possible, explain your policy and ask about preferred arrangements once an offer is made.

Disability, Health And Medical Information

Don’t ask: “Do you have any medical conditions?” or “Have you had mental health issues?”

Why it’s a problem: Disability and health information are highly sensitive and protected. Blanket health questions are generally unlawful.

Ask instead: “These are the inherent requirements of the role. Are you able to perform them safely, with or without reasonable adjustments?” If an offer is made, you can discuss reasonable adjustments with the candidate and (with consent) request limited information necessary to make them.

Religion, Race, Ethnicity And Nationality

Don’t ask: “What religion are you?”, “Where are you from originally?”, or “Is English your first language?”

Why it’s a problem: Protected attributes. Language questions can be discriminatory unless they relate to an objective requirement.

Ask instead: “This role requires fluent written and spoken English to draft client reports - can you demonstrate this capability?” Consider work samples or a task that is genuinely required by the role.

Political Opinion And Union Membership

Don’t ask: “What are your political views?” or “Are you in a union?”

Why it’s a problem: These are protected attributes under workplace laws and irrelevant to job performance.

Ask instead: Nothing. There is no legitimate reason to ask about politics or union membership in recruitment.

Criminal Record

Don’t ask: “Do you have a criminal record?” as a general screening question.

Why it’s a problem: Irrelevant or overly broad questions can be discriminatory. Spent convictions laws may also apply.

Ask instead: Only if there’s a clear, lawful link to the role (for example, working with vulnerable people, handling cash, or regulated positions). Phrase it narrowly, e.g., “This role requires a Working With Children Check. Are you able to obtain and maintain this clearance?”

Financial Status And Credit History

Don’t ask: “Do you have any debts?” or “What’s your credit score?”

Why it’s a problem: Irrelevant to most roles and intrusive from a privacy perspective.

Ask instead: Only where regulated positions require checks (e.g., AFSL-related roles). Obtain explicit consent and limit the scope to what’s legally necessary for the role.

Social Media And Personal Life

Don’t ask: “Can you share your Instagram handle?” or “What do you do on weekends?”

Why it’s a problem: Can lead to indirect discrimination (e.g., learning protected attributes) and privacy concerns.

Ask instead: Keep it professional - focus on job-related skills, interests relevant to the role, and work examples.

What Can You Ask Instead? Lawful, Job-Related Questions

Good interviews are structured, consistent and anchored to the genuine requirements of the role. Aim for questions that test capability, culture add, and role fit - not personal characteristics.

• Inherent Requirements: “This role requires regular heavy lifting of up to 15kg and operating a forklift. Are you able to perform these tasks safely, with or without reasonable adjustments?”
• Availability And Hours: “Our roster includes early mornings and occasional weekends. What’s your general availability?”
• Skills And Experience: “Can you walk me through a project where you improved a process? What was your approach and impact?”
• Qualifications And Licences: “The position requires a current driver’s licence and White Card. Do you hold these, or can you obtain them by your start date?”
• Work Rights: “Are you legally permitted to work in Australia?”
• Cultural Contribution: “What conditions help you do your best work, and how do you contribute to team collaboration?”

Consistency matters. Ask each candidate a standard set of core questions so your process is objective and comparable. Use scoring rubrics tied to the selection criteria.

Handling Sensitive Topics Legally

Some topics may be necessary to discuss - but only in a limited, compliant way. Here’s how to approach common scenarios.

Health Information And Reasonable Adjustments

Only ask about a person’s ability to perform the inherent requirements of the job. If the candidate indicates they may need adjustments, discuss these in practical terms and collect the minimum information necessary to assess viability.

If you’re documenting how you handle employee data more broadly, an Employee Privacy Handbook helps set out how personal and sensitive information will be collected, used and stored in your workplace.

Background Checks And Clearances

Background checks (e.g., police checks, working with children checks, VEVO work rights checks) should only be used where they are lawful and genuinely relevant to the role. Obtain express consent, explain the purpose, and apply checks consistently across comparable candidates.

If an external recruiter runs checks for you, ensure your Recruitment Agreement clearly allocates responsibilities for privacy, disclosures and compliance.

Confidential Information During Interviews

If you need to share confidential product details or client information as part of an interview task, consider a simple Non-Disclosure Agreement for shortlisted candidates. Keep it proportionate - you want to protect your IP without creating barriers for applicants.

Collecting Candidate Information Online

If you accept applications through your website or a careers portal, you’ll likely be collecting personal information. A clear Privacy Policy helps explain what you collect, why you collect it and how you store it, supporting your obligations under the Privacy Act 1988 (Cth).

Building A Compliant Hiring Process (And Reducing Risk)

A few simple steps can make your interviews fair, consistent and legally robust - without slowing you down.

1) Define The Role’s Inherent Requirements

Write a concise position description that lists the genuine, essential tasks and capabilities (e.g., qualifications, licences, physical demands, availability, travel). When your questions map back to this list, you reduce the risk of discrimination.

2) Use Structured, Standardised Interviews

Prepare a core set of questions aligned to the selection criteria and ask them of every candidate for the same role. Train interviewers to avoid small talk that wanders into protected attributes. Keep notes factual and job-related.

3) Create A Recruitment Policy And Train Your Team

A practical Workplace Policy can include a recruitment and selection section that covers lawful questions, handling candidate data, and who can run interviews. Include examples of off-limits topics and require refresher training.

4) Protect Candidate Information

Only collect what you need, only keep it as long as needed, and limit access to those directly involved in hiring. If your process involves handling resumes, ID checks or referee details, document your approach in an Employee Privacy Handbook and make sure your systems and vendors meet appropriate security standards.

5) Keep Questions Focused On Capability

Redirect or reframe off-limits questions to lawful, job-related alternatives. For example, swap “Do you have kids?” for “This role involves rotating weekend shifts - are you available?”

6) Document Offers And Onboarding Properly

Once you’ve selected a candidate, confirm the role and conditions in a tailored Employment Contract. If inherent requirements, licences, or flexible arrangements are part of the role, set them out clearly to avoid misunderstandings.

7) Plan For Complaints And Escalations

Even with best efforts, issues can arise. Treat complaints seriously and respond promptly. If a candidate alleges discrimination following an interview, you’ll want clear documentation showing your questions and decisions were tied to objective selection criteria. If you’re facing a complex complaint, seek help early - our team regularly assists with workplace discrimination claims and preventative training.

Frequently Asked Questions

Can I Ask About Visa Status Or Work Rights?

Yes - you can lawfully ask whether a candidate has the right to work in Australia. Keep it simple and consistent: “Are you legally permitted to work in Australia?” Avoid questions about nationality or place of birth.

Can I Ask About Previous Sick Leave Or Workers’ Compensation?

Generally no. Those questions are intrusive and likely discriminatory. Focus on whether the candidate can perform the inherent requirements of the role safely, with or without reasonable adjustments.

Are ‘Culture Fit’ Questions Allowed?

Yes, provided they are framed around values and behaviours relevant to the role. Avoid questions that could indirectly reveal protected attributes. Consider “culture add” - how the person will contribute to your team - rather than seeking people who look or live like existing staff.

Can I Run An Unpaid Trial?

Be careful. If the trial is more than a brief skills demonstration, it may count as work and must be paid under the relevant award or agreement. If you offer structured internships, set clear expectations in an Internship Agreement and ensure compliance with the Fair Work Act.

What If A Candidate Volunteers Personal Information?

Steer the conversation back to role requirements and don’t base decisions on protected attributes. Record only job-relevant information in your interview notes.

Key Takeaways

• Questions that touch protected attributes (age, sex, disability, race, religion, family responsibilities and more) are likely unlawful in interviews unless they relate directly to the role’s inherent requirements.
• Keep interviews structured and job-focused. Ask about capability, availability, qualifications and work rights - not personal life or future family plans.
• Handle sensitive topics carefully: discuss inherent requirements, reasonable adjustments and only run background checks where clearly relevant and lawful, with consent.
• Support compliance with documents and processes: a recruitment-focused Workplace Policy, appropriate privacy practices and a clear Employment Contract for successful candidates.
• Protect candidate data collected via your website or systems with a transparent Privacy Policy and internal procedures.
• If in doubt, reframe the question: focus on whether the candidate can do the job, not who they are.

If you’d like a consultation on building a compliant, fair interview process for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.