How to Avoid Illegal Questions When Interviewing

Efficient, reliable employees form the backbone of every successful small to medium sized enterprise (SMSE). In contrast, unmotivated employees can be a real obstacle to success in business. Therefore, when SMSEs recruit, it’s fundamental that the best possible candidate is selected during the recruitment process.

Whilst resumes and cover letters say a lot about a candidate’s training and experience, it’s usually during the interview that a candidate’s true strengths and weaknesses are assessed. With this in mind, it is understandable that employers want to throw probing and challenging questions at candidates and assess their responses.

However, during interviews, employers should be wary of accidentally crossing the line and asking illegal interview questions.

Under Federal and New South Wales law, employers are prohibited from discriminating against a prospective employee based on certain characteristics such as race, sex, sexual orientation, age, disability, marital status, family responsibility, pregnancy, religion, ethnicity and political opinion. Employers are not permitted to ask questions related to these characteristics unless the question is directly relevant to the role.

There are a few exceptions to these rules. For example, there are exceptions in anti-discrimination legislation that allow employers to discriminate based on gender if a certain gender is a genuine necessity to the role (such as a security guard required to perform body searches).

So what kind of questions could amount to illegal interview questions? And how can employers avoid these illegal questions whilst still obtaining important information about prospective employees? Below, we have listed some interview questions that are unlawful in New South Wales. We have provided an explanation for why these questions might be illegal and some suggestions on re-wording the question to avoid discrimination.

1. How old are you?

This question is relatively self-explanatory. It is illegal to discriminate against a prospective employee based on their age. Despite its obviousness, the often innocence behind this question means many employers don’t realise that it is actually unlawful. There are some limited circumstances where this question could be considered directly relevant to the role, such as where the employee must be at least 18 or 21 years of age.

If you want to know how old a prospective employee is, it is a good idea to look behind the question at the information you are seeking. Are you asking because you want to ensure the candidate has enough experience for the role? Is it because you think they might be overqualified, and you are looking for someone with less experience who you can train up in the role? Once you look behind the question, it is often the case that there is a perfectly legal question that you could ask instead.

Our recommended alternative questions:

Describe to us your experience and how you believe the skills you have gained relate to the current role you are seeking.


What is your attitude towards learning new skills on the job?

2. Have you ever been arrested?

It is illegal to ask a candidate whether they have been arrested unless you can clearly demonstrate that this question is relevant to the role. You can however ask whether a candidate has been convicted of a crime. The logic behind this is that someone could have been wrongly charged with a crime and later acquitted. The candidate has a right not to be discriminated against on this basis. On the other hand, if someone who has been convicted of money laundering is seeking a job where they will be managing trust accounts and processing large transactions, then it is vital that the  prospective employer is aware about this conviction.

3. Are you married, or do you have children?

Questions around children and relationship status are a big no no. They reveal marital status and can indicate sexual orientation, both of which are characteristics that must not be taken into account when hiring. Often employers will innocently ask these questions either as icebreakers or to discern where the candidate’s priorities lie. We believe that these questions are not indicative of a prospective candidate’s skills, abilities or commitment to the role and should be avoided at all costs. If you want to know whether a candidate is motivated or career oriented, you can ask something better directed towards these attributes.

Our recommended alternative questions:

Describe your work-related strengths and weaknesses.


What attributes do you think this role requires? Please provide an example of a past circumstance where you demonstrated one or all of these attributes.

4. Do you use drugs or drink alcohol?

This question is largely irrelevant to most positions and should be avoided as a general rule. There may be some positions (such as those where the employee is required to operate heavy machinery) that may justify the employer asking whether the employee takes medication that could affect their ability to perform certain tasks.

Some employers may be tempted to ask this question because they are concerned about employees showing up for work hung over or because the office has regular Friday drinks and they want to ensure the candidate will want to join in. Regardless of the intend behind the question, we recommend that employers avoid this one completely unless the question directly relates to the job.

Sometimes a perfectly legal interview question can segue into an unplanned illegal question by accident during an interview. In order to avoid accidents, we recommend that before interviewing, employers sit down and plan the interview process carefully. Questions should always focus on the candidate’s relevant skills and prior experience and how this qualifies them for the advertised role.

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