(Cth) Embed Immigration Status as a Protected Attribute Under Anti-Discrimination Law

Harriett Cox, Henning Kallies, Henry Turner, Emily Lennard & Marise Bassily

3 days ago

7 min read

Author: Harriett Cox, Henning Kallies, Henry Turner, Emily Lennard & Marise Bassily | Publish date: 9/9/2026

P: In Australia, immigration status is not a standalone protected attribute under anti-discrimination law.
S: The Minister for Employment and Workplace Relations should amend Sections 351 and 772(1) of the Fair Work Act 2009 (Cth) to include the additional standalone protected attribute of ‘immigration status’.
E: Migrant Workers Centre (MWC) (2026): ‘Incorporate “immigration status” as a standalone protected attribute under … anti-discrimination law [and relevant provisions of the Fair Work Act], subject to appropriate statutory exceptions.’

Problem Identification:

Section 351 and Section 772(1) of the Fair Work Act 2009 (Cth) (the Act) make it unlawful for an employer to discriminate or unlawfully terminate an employee or prospective employee because of protected attributes, such as ‘race, colour, sex, sexual orientation … [and] age’. However, immigration status is not included as a standalone protected attribute under either section.

According to the MWC, this means that temporary visa-holders (TVHs) are often excluded ‘from engaging in areas of public life — particularly employment — even where their visa conditions lawfully permit participation’. The MWC outlined that discriminatory employment practices can push TVHs into ‘insecure … and exploitative’ employment, creating a sense of ‘powerlessness, fear and … distress’.

Context:

The Fair Work Ombudsman outlined that ‘unlawful workplace discrimination … occurs when an employer takes adverse action against an [individual]’ on the basis of possessing a protected attribute under the Act. They refer to adverse action as ‘unlawful if it is taken for a discriminatory reason’. The Act notes that statutory exceptions apply to an adverse action including where it is ‘taken because of the inherent requirements of the particular position concerned’ (e.g. within the role of a truck driver where the applicant has a vision impairment).

The Department of Home Affairs (DHA) recorded that approximately 2.9 million TVHs resided in Australia in July 2026. The DHA noted that this included TVHs such as students, working holiday makers, asylum seekers and temporary residents.

Arguments:

The MWC stated that ‘recruitment is one area where [TVHs] exclusion is often most explicit’. The MWC emphasised that this exclusion was based ‘on “immigration status” as a categorical filter'. A survey conducted by the MWC and Unions NSW (2023) found that 39% of respondents ‘were denied job opportunities because of their visa type’. The MWC explained that ‘businesses often discourage [TVHs] from applying for a job by listing permanent residency as a requirement on a job ad’.

The MWC stated that employers ‘exclude [TVHs] who hold valid work rights, pushing them into informal or exploitative employment’. The MWC stated this had ‘created a dual job market where … exploitative and insecure jobs are readily available to [TVHs] whereas decent jobs are inaccessible.’ Lavanya (pseudonym) recalled working nine hours ‘without access to a toilet or lunch break’ and observed underpayment among her peers as a TVH. The Migrant Justice Institute’s survey of approximately 5,500 TVHs, published in 2026, found that 65% had a common experience: they ‘were paid less than their individual minimum entitlements’.

The Refugee and Immigration Legal Service’s Dr Carrick stated that exclusion of immigrants from discrimination law contributes to ‘the social exclusion of [TVHs] in Australia’. He outlined that this yields ‘negative consequences for [TVHs] and for the communities from which they are excluded’. The MWC emphasised that visa-related discrimination shaped TVHs’ ‘perceptions of belonging, security, and future prospects’.

The MWC noted that ‘there is a perception that employing [TVHs] is a risk (due to their temporariness).’ However, the MWC ultimately outlined that ‘the possibility of a future change in circumstances is not a legitimate reason’ to discriminate. They emphasised TVHs ‘are likely to obtain a further visa, and employers should … assess applicants on their current work rights rather than assumptions about their future’. They further stated that ‘where [visa] continuity is a genuine [role requirement]’, e.g. ‘a term exceeding the visa-holder’s stay conditions’, it may fall under statutory exceptions.

Advice/Solution Identification:

The MWC has called for the incorporation of immigration status as a protected attribute under the Act. The MWC outlined that recognising ‘immigration status as a protected attribute would … [establish] a normative standard that [migration-based] exclusion is unacceptable’. Dr Carrick stated that this could provide ‘redress for [TVHs] who face … employment exploitation.’

Precedent:

There is domestic precedent for recognising immigration status as a protected attribute in anti-discrimination law. In the ACT, immigration status is listed as a protected attribute.

Public Support of the Solution:

(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.)

Migrant Workers Centre (MWC)

Broad Support

Unions NSW - They have called for the implementation of a legal framework that prevents discrimination on the basis of migration in the job market. However, they have not called for immigration status to be made a protected attribute under anti-discrimination law.
The Grattan Institute - They have argued that Australia’s migration and workplace laws should be reformed to reduce the exploitation of migrant workers. However, they have not called for immigration status to be made a protected attribute under anti-discrimination law.
Ziersch, A., Due, C., & Walsh, M. - They found that immigration status intersects with race, religion, and gender to produce experiences of discrimination, and recommended broader anti-discrimination policy responses and migrant education about existing protections. However, they have not called for immigration status to be made a standalone protected attribute.
Dr Ben Carrick - He argued that the failure of all jurisdictions except the ACT to include immigration status as a protected attribute is a key reason discrimination law fails to address the exclusion of migrants. However, Dr Carrick has not called for immigration status to be made a protected attribute in any specific legislation.

News Coverage:

The Canberra Times - ‘Migrant workers’ exploitation costing billions in wages’. This article examined the vulnerability of temporary visa holders to exploitation and modern slavery in Australia. By: Tom Wark | 8 May 2026 - Read the article here.
SBS News - ‘Fears, rorts, and exploitation: 10,000 workers in Australia expose a $3.2 billion problem’. This article covered the Migrant Justice Institute’s Off the Books report, detailing the extent of migrant workers’ exploitation and underpayment in Australia. By: Mikele Syron | 7 May 2026 - Read the article here.
UNSW Newsroom - 'Landmark survey exposes a hidden system of migrant worker exploitation across Australia'. This article reported on exploitation and underpayment of migrant workers, finding $3.18 billion in wages are lost annually in Australia. By: UNSW Media | 7 May 2026 - Read the article here.
ABC News - ‘National migrant worker scheme uncovers ‘shocking’ exploitation in first year of operation’. This article reported on the ‘Protecting Migrant Workers - Information and Education’ program, which discovered migrant workers had wages stolen and visas threatened by Australian employers, described in cases as ‘modern slavery’. By: Isobel Roe & Melinda Hayter | 31 March 2026 - Read the article here.

Where to go to learn more:

(2026) Discrimination on the basis of Immigration Status | Migrant Workers Centre - This brief highlighted how temporary migrants face discrimination in employment based on their visa status and recommended stronger legal protections, including recognising immigration status as a protected attribute under anti-discrimination laws. Read the full brief here.
(2023) Unlocking Talent: Empowering Migrant Workers with Equal Work Opportunities | Unions NSW and Migrant Workers Centre - This report examined barriers migrant workers face in accessing employment and recommended reforms to ensure equal employment opportunities and fair recognition of overseas skills and experience. Read the full report here.
The Discrimination Act 1991 (ACT) - Read the full Act here.
The Fair Work Act 2009 (Cth) - Read the full Act here.

Human Perspective:

Content Warning: Workplace discrimination, exploitation of temporary visa holders, and financial insecurity

Amir arrived in Australia to study, drawing on family savings and years of his work to fund an Australian qualification he believed would open doors. He is a temporary visa holder with the right to work in Australia, yet in the two years since graduating, Amir has not been able to find a job in his field. During his final year of university, Amir completed an internship, where his supervisor praised his work and encouraged him to apply for a graduate role opening up in the team. When Amir disclosed his visa status, the supervisor’s tone changed, and he suggested that Amir might not be eligible, and the conversation ended there. Since then, Amir has learned to scan job listings for the words ‘Australian citizens or permanent residents only’ before he lets himself hope. One graduate role after another, the same phrase appears, closing the door before his skills or experience are ever considered. Amir has felt increasing despair over his future in Australia as he encountered rejection even when he met every requirement listed in job advertisements. He started to wonder what the point of his qualification was. It was earned in Australia, to Australian standards, yet the labour market had already decided his visa status outweighs everything else he has to offer. Unable to secure work in his field, Amir tried to find hospitality and retail jobs to support himself. However, here, potential employers pressured Amir to be employed informally, with ‘cash-in-hand’ arrangements far below minimum wage standards. As rent grew harder to cover, he became increasingly anxious about his future, and the strain began to weigh on his well-being. Amir loves Australia and wants to stay and serve his community, yet he is left with a growing sense that his visa status, rather than his skills, shapes every opportunity.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

The statements that are not hyperlinked can be attributed to Batool Moussa (research and policy advisor at the Migrant Workers Centre). Shared with her permission on the 17th of July, 2026.

Support

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Disclaimers

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Reference list:

Australian Law Reform Commission. (2010). Australian anti-discrimination law framework. https://www.alrc.gov.au/publication/essentially-yours-the-protection-of-human-genetic-information-in-australia-alrc-report-96/09-anti-discrimination-law/australian-anti-discrimination-law-framework/

Carrick, B. (2024). Immigration and discrimination law: A story of the collusion of legal categories against temporary migrants in Australia. Monash University Law Review, 49(3), 1–33. https://doi.org/10.26180/26056942.v1

Department of Home Affairs. (2026). Temporary visa holders in Australia [Data set]. Australian Government. https://data.gov.au/data/en/dataset/temporary-entrants-visa-holders/resource/5d7155e4-7715-464f-8870-842d510cefab

Discrimination Act 1991 (ACT). https://www.legislation.act.gov.au/View/a/1991-81/current/html/1991-81.html

Fair Work Act 2009 (Cth). https://www.legislation.gov.au/C2009A00028/2026-04-02/2026-04-02/text/original/epub/OEBPS/document_2/document_2.html

Fair Work Ombudsman. (n.d.). Workplace discrimination fact sheet. https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/workplace-discrimination

Migrant Justice Institute. (2026). Off the books: Inside Australia’s hidden system of migrant worker exploitation. https://static1.squarespace.com/static/593f6d9fe4fcb5c458624206/t/69fb1b3326522a5c81562835/1778064179747/Off+the+Books+MJI+2026+FINAL.pdf

Migrant Workers Centre. (2022). Insecure by design. https://assets.nationbuilder.com/mwc/pages/5979/attachments/original/1733765665/23 2_MWC_Insecure_by_Design_Report_FINAL.pdf

Migrant Workers Centre. (2026). Discrimination on the basis of immigration status. https://assets.nationbuilder.com/mwc/pages/9700/attachments/original/1779764004/2026_MWC_PolicyBrief-Visa-Status-Discrimination_V3_FINAL_WEB.pdf

Roe, I., & Hayter, M. (2026, March 31). National migrant workers scheme uncovers ‘shocking’ exploitation in first year of operation. ABC News.

https://www.abc.net.au/news/2026-03-31/migrant-worker-scheme-uncovers-stolen-wages-modern-slavery/106512360

Syron, M. (2026, May 7). Fears, rorts, and exploitation: 10,000 workers in Australia expose a $3.2 billion problem. SBS News. https://www.sbs.com.au/news/article/migrant-worker-wage-theft-sham-contracting-australia/pzclzwgm7

Unions NSW, & Migrant Workers Centre. (2023). Unlocking talent: Empowering migrant workers with equal work opportunities. https://www.unionsnsw.org.au/wp-content/uploads/2023/11/FINAL-Unlocking-Talent-Report_FA2_WEB.pdf

UNSW Media & UTS Media. (2026, May 7). Landmark survey exposes a hidden system of migrant worker exploitation. https://www.unsw.edu.au/newsroom/news/2026/05/survey-hidden-system-migrant-worker-exploitation