10 interview questions that could land you in hot water

You know the moment. The interview’s going well, the candidate’s relaxed and somewhere between “Tell me about yourself” and “Do you have any questions for us?” someone slips in a little smalltalk: “So, do you live nearby?” or “How do you juggle work and family?”.

It’s meant to be friendly and inclusive: you’re curious and interested in their life. But in reality, these kinds of personal questions can actually land you in hot water.

That’s because Australia’s discrimination laws apply to interview questions, even when there’s no bad intent behind them.

The consequences of asking illegal interview questions

Getting it wrong can be awkward… and expensive. Beyond missing out on great candidates, asking illegal questions can expose you to Fair Work claims and state tribunal complaints.

That said, you’ll struggle to find tribunal decisions specifically about interview questions. Most claims settle quietly before they ever reach a hearing because the employer knows that public perception of discrimination is a reputation killer.

But, by then, the damage to your employer brand is often already done. Even without a formal claim, one bad interview can live forever on Glassdoor, LinkedIn or within the rumour mills of your industry.

The 10 most common illegal questions

So what exactly crosses the line? Here are 10 of the most common illegal questions employers ask at interviews (often without even knowing it).

1. “How old are you?”

Why it’s illegal: Age is a protected attribute under the Age Discrimination Act 2004 (Cth). So, unless you’re legally required to verify a minimum or maximum age (i.e because the role involves serving alcohol or driving a heavy vehicle), this question can be seen as discriminatory.

What to ask instead: If age is genuinely relevant, request proof of licence or working rights after making a conditional offer. Otherwise, focus on skills and experience: “Tell me about your recent work in…”.

2. “Do you have kids?” or “How do you manage childcare?”

Why it’s illegal: Questions about family responsibilities can discriminate on the basis of gender, parental status or carer’s responsibilities. Even if you’re trying to gauge availability, it can imply bias against parents or carers.

What to ask instead: Ask about role requirements directly: “The role includes travel and occasional weekend work. Will you be able to meet these requirements?”

3. “Where are you from originally?”

Why it’s illegal: While this may sound like friendly conversation, it can expose you to claims of racial or national origin discrimination. Employers can only ask about work eligibility, not cultural background.

What to ask instead: If you’re concerned someone isn’t eligible to work, stick to lawful questions, for example: “Are you legally entitled to work in Australia?”. Otherwise, save your curiosity about someone’s background for another time.

4. “Do you live nearby?”

Why it’s illegal: This can indirectly discriminate based on socioeconomic status, family responsibilities or even race (especially if a suburb is associated with a particular demographic). In some cases, asking this question has been linked to postcode bias, which disproportionately affects certain communities.

What to ask instead: Focus on practicalities: “This role is based in Parramatta and requires working onsite three days a week. Are you comfortable with that commute?”

5. “Have you ever been injured or had an illness?”

Why it’s illegal: Health and disability are protected attributes under both federal and state law. You can’t ask about past injuries, medical history or workers’ compensation claims unless they directly affect the inherent requirements of the role.

What to ask instead: Phrase it around job requirements: “Are you able to safely perform the physical tasks associated with this role?”

6. “Are you planning to retire soon?”

Why it’s illegal: Questions that suggest older workers are less capable, committed or valuable can amount to age discrimination. The same applies to implying that someone is “too young” or “not experienced enough”.

What to ask instead: Talk about career plans in a neutral way: “What are your professional goals over the next few years?”

7. “Do you have any religious holidays or commitments?”

Why it’s illegal: Religion is protected under the Fair Work Act 2009 and most state anti-discrimination laws. Even well-intentioned scheduling questions can appear discriminatory.

What to ask instead: Outline the job’s scheduling upfront, e.g. “This role involves weekend or public holiday work. Would you be available to work then?”

8. “What are your thoughts on [insert politician/political party]?”

Why it’s illegal:  Political opinion is a protected attribute under federal law. Unless you’re hiring for a political advocacy or campaign role where ideology is an inherent requirement of the job, asking about someone’s political views is irrelevant and risky.

What to ask instead: Focus on whether they’re aligned with your organisation’s values or mission: “How would you contribute to our team’s purpose?”

9. “Do you identify as male, female, or other?”

Why it’s illegal: Gender identity, sex, and sexual orientation are protected under the Sex Discrimination Act 1984 (Cth). Asking for this information during an interview can make your business liable especially if used, even unintentionally, in a hiring decision.

What to ask instead: Avoid gendered questions altogether. Use inclusive language until the candidate offers their preferred pronouns voluntarily.

10. “How would you fit in with our young, energetic team?”

Why it’s illegal: It might sound like harmless culture-fit chat, but this phrase can imply bias based on age, disability or personality traits. “Cultural fit” often becomes a code for sameness. (Besides, studies show hiring only the same kinds of people usually leads to lower performing teams.)

What to ask instead: Reframe it as “culture add”, e.g. “What kind of team environment do you perform best in?”

Reality check: Most breaches are innocent enough

Every interviewer knows they can’t ask someone about their age or marital status. But – as the examples above show – most illegal interview questions don’t come from ignorance, they come from habit, curiosity and, well, just being human.

We make conversation, we look for connection and we try to fill silences – even (or perhaps especially) in job interviews. That’s just how our brains are wired.

But it’s often the throwaway lines that candidates remember and give weight to.

The risk is that small talk can expose bias before the person’s even had a chance to prove their worth, sending a quiet message about who belongs and who doesn’t.

That said, a fair interview isn’t about being robotic. It’s about being disciplined and knowing what information you actually need to assess the role and what’s simply your curiosity getting the better of you.

How to avoid asking illegal questions in your next job interview

So, if you’re looking to make sure you – and your team – don’t ask the wrong thing in the next interview, how do you do it? Here are our tips.

• Separate rapport from assessment. Save the friendly chat for after the decision’s made.
• Review your templates. Check every interview guide, scorecard and question bank against discrimination law.
• Script for curiosity. Write out your core questions ahead of time, and think about where personal bias might creep in.
• Create a ‘red flag’ rule. If a question reveals something about a protected attribute, rephrase or drop it.
• Train line managers, not just HR. Most risky questions come from well-meaning team leaders, not recruiters.
• Be careful with your notes. Anything written or recorded during an interview can be used as evidence if a candidate makes a claim. Keep notes factual and job-related with no personal observations or shorthand about family, age or background.

Or if you want a really simple rule, just think about this: if you can’t defend the relevance of a question to the job’s core requirements, don’t ask it.

Curiosity is a great trait for any successful person but, in a job interview, it needs boundaries.

And, if a candidate volunteers personal information, thank them for sharing, but make it clear your decision will focus solely on their ability to meet the role’s requirements. Document that redirection, if possible, so that you can demonstrate you’ve acted in good faith.

In short…

Getting hiring right starts long before the interview. It lives in your planning, processes and workplace culture.

At Catalina Consultants, we help organisations build recruitment systems that let them attract the right candidates without the legal landmines.

From interview training to end-to-end talent strategy, we’ll make sure your team knows what to ask, what to avoid, and how to hire for the future you’re building.

Rethinking how you attract and grow talent? Get in touch.