(NSW) Embed Immigration Status as a Protected Attribute Under Anti-Discrimination Law
Author: Harriett Cox, Henning Kallies, Henry Turner, Emily Lennard & Pema l'Anson | Publish date: 20/10/2026
P: In NSW, immigration status is not a standalone protected attribute under anti-discrimination law.
S: The NSW Attorney-General should introduce a Part to the Anti-Discrimination Act 1977 (NSW) to include the additional standalone protected attribute of ‘immigration status’.
E: Migrant Workers Centre (2026): ‘Incorporate “immigration status” as a standalone protected attribute under state and territory anti-discrimination law, subject to appropriate statutory exceptions.’
Problem Identification:
Parts 2-2, 3-2, 3A-2, 4-2, 4A-2, 4B-2, 4C-2, and 4G-2 of the Anti-Discrimination Act 1977 (NSW) (the Act) list standalone protected attributes on which grounds it is unlawful for an employer to discriminate against an employee or prospective employee. These include age, homosexuality, and marital status. However, immigration status is not listed as a protected attribute under any Part.
According to the Migrant Workers Centre (MWC), this means that temporary visa-holders (TVHs) are 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 employee or prospective employee’ 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 that 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 MWC reported that embedding ‘immigration status’ on a state level is relevant because ‘if immigration status is not recognised as a protected attribute in the jurisdiction in which the action is taken, it will not be captured’ in the Fair Work Act 2009 (Cth).
The Department of Home Affairs (DHA) recorded that approximately 2.9 million TVHs resided in Australia in July 2026. The DHA noted this includes 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 is 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 has ‘created a dual job market where … exploitative and insecure jobs, are readily available to [TVHs] whereas decent jobs are inaccessible.’ Lavanya (pseudonym) recalled working 9 hours ‘without access to a toilet or lunch break’ and observed underpayment among her peers while being a TVH. The Migrant Justice Institute’s survey of almost 5,500 TVHs, published in 2026, found that 65% ‘were paid less than their individual minimum entitlements’.
Dr Carrick, Principal Solicitor at the Refugee and Immigration Legal Service, 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 those individuals 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 in Australia’.
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]’, for example, ‘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 could ‘[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.)
Broad Support
Unions NSW and Migrant Workers Centre - They have called for the implementation of a ‘legal framework’ that ‘prevents discrimination based on migration status in the job market’. However, they have not called for immigration status to be made a protected attribute under anti-discrimination law.
Grattan Institute - They have argued that Australia's ‘workplace and migration laws must be strengthened and better enforced to deter exploitation.’ 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 ‘experiences of discrimination are … shaped by multiple, intersecting categories’ (such as ‘race’ and ‘migration status’). They indicated ‘responses such as anti-racism legislation or workplace policies … are important area[s] of policy action’. 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 Australian jurisdictions bar the ACT to include “immigration status” as a standalone attribute is the most obvious and straightforward reason that Australian discrimination law fails to inhibit the exclusion of temporary residents.’ 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. They 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 Fair Work Act 2009 (Cth) - Read the full Act here.
The Discrimination Act 1991 (ACT) - Read the full Act here.
Anti-Discrimination Act 1977 (NSW) - Read the full Act here.
Human Perspective:
Adaeze arrived in Sydney to study, drawing on family savings and years of work to fund a qualification at an Australian university which she believed would open doors. She is a temporary visa holder with the right to work in Australia, yet in the 2 years since graduating, Adaeze has not been able to find a job in her field. During her final year of university, Adaeze completed an internship, where her supervisor praised her work and encouraged her to apply for a graduate role opening up in the team. When Adaeze disclosed her visa status, the supervisor's tone changed, he then suggested that Adaeze might not be eligible, and the conversation ended there. Since then, Adaeze has learned to scan job listings for the words ‘Australian citizens or permanent residents only’ before she lets herself hope. One graduate role after another, the same phrase appears, closing the door before her skills or experience are ever considered. Adaeze felt increasing despair over her future in Australia as she encountered rejection even when she met every requirement listed in job advertisements. She started to wonder what the point of her qualification was. It was earned in Australia, to Australian standards, yet the labour market had already decided her visa status outweighs everything else she has to offer. Unable to secure work in her field, Adaeze tried to find hospitality and retail jobs to support herself. However, here, potential employers pressured Adaeze to be employed informally, with ‘cash-in-hand’ arrangements far below minimum wage standards. As rent grew harder to cover, she became increasingly anxious about her future, and the strain began to weigh on her well-being. Adaeze loves Sydney and wants to stay and serve her community, yet she is left with a growing sense that her visa status, rather than her 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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Reference list:
Anti-Discrimination Act 1977 (NSW). https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048
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/
Berg, L., & Farbenblum, B. (2026). Off The Books: Inside Australia’s Hidden System of Migrant Worker Exploitation. Migrant Justice Institute. https://static1.squarespace.com/static/593f6d9fe4fcb5c458624206/t/69fb1b3326522a5c81562835/1778064179747/Off+the+Books+MJI+2026+FINAL.pdf
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). BP0019 Number of 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. (2026). Workplace discrimination fact sheet.
Migrant Workers Centre. (2022). Insecure By Design: Australia’s migration system and migrant workers’ job market experience. Migrant Workers Centre Inc. 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.
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 across Australia. https://www.unsw.edu.au/newsroom/news/2026/05/survey-hidden-system-migrant-worker-exploitation
Wark. T. (2026, May 8). Migrant workers’ exploitation costing billions in wages. The Canberra Times. https://www.canberratimes.com.au/story/9242543/migrant-workers-exploitation-costing-billions-in-wages/
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