References and what you can legally say in Australia
Reviewed by Mellow Editorial Team, HR & payroll content team
Giving a reference in Australia is largely unregulated by statute, but employers are not free to say whatever they like. The main legal risk is defamation — making a false statement that damages someone's reputation — along with potential liability under anti-discrimination law if a reference reflects a protected attribute rather than genuine performance concerns.
What the law actually says
There is no single Australian law that governs employment references. Instead, several bodies of law interact:
Defamation. Each state and territory has defamation legislation based on a uniform model. A referee who makes a false statement of fact that harms the subject's reputation could face a defamation claim. The key word is false — truthful statements, even damaging ones, attract a qualified privilege defence, provided the information is given honestly and without malice to someone with a legitimate interest in receiving it (a prospective employer, for example).
Anti-discrimination law. Commonwealth, state and territory anti-discrimination laws prohibit adverse action based on attributes such as age, sex, race, disability, pregnancy and others. A reference that raises concerns tied to a protected attribute — rather than actual job performance — could expose the referee or the business to a discrimination complaint.
Australian Consumer Law. Misleading conduct can arise in commercial contexts, though this is rarely the primary concern in reference situations.
Privacy. The Privacy Act 1988 applies to organisations with an annual turnover above $3 million (and some others). Sharing more personal information than is reasonably necessary, or disclosing sensitive information without consent, can create issues under the Australian Privacy Principles.
What you can and cannot say
The qualified privilege defence is your practical anchor. You can speak frankly about a former employee's performance, conduct, skills and suitability — provided:
- What you say is true, or at least held in good faith on reasonable grounds
- You are responding to a genuine reference request from a prospective employer
- You are not motivated by malice (a grudge, desire to harm the person's prospects, or a discriminatory reason)
You can say someone was frequently absent without adequate explanation, that their sales figures consistently missed targets, or that they were dismissed for misconduct following a formal process — as long as those statements are accurate and documented.
What you should avoid:
- Speculation or opinion presented as fact ("I think he probably has a drinking problem")
- Statements about protected attributes — health conditions, age, family responsibilities, union activity
- Exaggerated or embellished negatives beyond what the record supports
- Positive statements you do not genuinely hold, which mislead the prospective employer and could expose you to a negligent misstatement claim if harm results
The "HR reference" trap
Many HR teams default to confirming only dates of employment and job title, believing this avoids all risk. It largely avoids defamation risk, but it is not a legal requirement and it creates its own problem: if you provide a glowing verbal reference to a manager but the written HR reference says nothing, a prospective employer may rely on the verbal version and have a claim against you if it turns out to be misleading.
Better practice is consistency. Decide at the organisational level what your reference policy is, document it, and make sure managers know they should not give off-the-record verbal references that diverge from it.
Declining to give a reference
You are not legally obliged to provide a reference for a former employee. If you cannot speak honestly without raising defamation concerns — because your records are incomplete, for example — or if giving a fair reference would require you to disclose sensitive information, it is entirely legitimate to decline. Tell the person directly that you will not be providing one. That gives them the opportunity to find another referee.
What you should not do is agree to give a reference and then provide a deliberately unhelpful or damaging one as a backdoor way of killing their application. Courts have found this approach — sometimes called a "concealed negative reference" — can attract liability.
Receiving references as an employer
When you are the one seeking a reference, remember that the same legal framework applies in reverse. Ask questions relevant to the role. Do not press a referee for information about protected attributes. If a referee volunteers information about a candidate's health, family situation or union history, do not factor it into your decision and do not document it in a way that could later suggest it influenced the outcome.
Structured reference questions — the same questions asked of every referee for a given role — reduce both legal risk and unconscious bias, and they produce more comparable, useful information.
---
This article is general information only and does not constitute legal advice. For specific situations, consult an employment lawyer.
---
Run HR and payroll in Australia with Mellow
Mellow brings HR, payroll and 12 AI agents into one platform — built to handle Australia properly, with payroll included, from £4 per employee per month. The AI agents don't just answer questions; they generate contracts, run cost estimates and draft letters for you.
[Start a free trial →](/register)