ANTI-DISCRIMINATION - where respondent's online application for employment form required date of birth and gender - where applicant for a position with the respondent required to upload personal information relating to right to work in Australia - whether mandatory requirement to provide personal information amounts to direct discrimination - whether information reasonably require for a purpose not involving discrimination - whether statutory defence to the respondent's conduct

CONSTITUTIONAL LAW - whether s 124 of the Anti-Discrimination Act conflicts with an employer's obligations under the Migration Act (Cth) not to employ unlawful non-citizens (Cth) - whether s 124 interferes with the respondent's right to obtain reasonably required personal information under the Privacy Act (Cth) - whether the s 1124 should be declared invalid under s 109 of the Constitution

Anti-Discrimination Act 1991 ss 7, 8, 124, 209

Migration Act 1958 (Cth) s 245B

Privacy Act 1988 (Cth) s 13G

Dickson v The Queen (2010) 241 CLR 491

Mr Seck of counsel instructed by Henry Davis York for the respondent.

[1] In December 2013 Woolworths Ltd advertised for a console operator's position at its petrol outlet at Beerwah (Qld). Mr Willmott, who was unemployed at the time and lives in Beerwah, saw the advertisement on Woolworths' website and decided to apply for the position utilising Woolworths' online application system. In completing the online application, Mr Willmott was required to provide answers to certain mandatory fields, which included his gender, date of birth and was also required to provide documentary proof of his right to work in Australia.

[2] He did not complete the application because he was offended with Woolworths' insistence on the provision of the above information. He then lodged a complaint with the Anti-Discrimination Commission of Queensland. After receiving a response to the complaint from Woolworths, the Commission referred the complaint to the Tribunal for consideration.

[3] Woolworths concedes that, prima facie, the request of the private information could amount to discriminatory conduct. However, it says that the information was reasonably required for purposes that did not involve discrimination, and relies on this as a defence under s 124(3) of the Anti-Discrimination Act 1991 (the ADA Act). In the alternative, it says that in respect of the right to work documentation, it relies on its statutory obligations under the Migration Act 1958 (Cth) not to employ unlawful non-citizens. Insofar as the ADA Act conflicts with these obligations, the Migration Act must take precedence. A similar argument applies with respect to the application of the Privacy Act which permits the gathering of private information in certain circumstances.

[4] Section 7 of the ADA Act prohibits discrimination on the basis of certain attributes which specifically include: '(a) sex'; '(f) age'; '(m) gender identity'.

[5] Section 8 of the ADA Act sets out the meaning of discrimination on the basis of an attribute as follows:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of-

(a) A characteristic that a person with any of the attributes generally has; or

(b) A characteristic that is often imputed to a person with any of the attributes; or

(c) An attribute that a person is presumed to have, or to have had at any one time, by the person discriminating; or

(d) An attribute that a person had, even if the person did not have it at the time of the discrimination.

[6] Part 3 of Chapter 4 of the ADA Act, deals with 'Unlawful Request for Information'. Section 124 deals with requests for unnecessary information:

• (1) A person must not ask another person, either orally or in writing to supply information on which unlawful discrimination might be based.

• (2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by-

  • (a) an existing provision of another Act; or
  • (b) ...

• (3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

[7] Mr Willmott's complaint raises three issues. Unlawful discrimination by reason of race, age and sex; contravention of s 124 of the Act; and unlawful advertising. Clearly, there is nothing unlawful about the advertisement for the position on its face. The advertisement is attached to the complaint. There is no reference to any of the matters complained of in the online application. The first two complaints will be considered together. The central issue for consideration here is the application of s 124, and whether there is any conflict with the Migration Act 1958 (Cth) and the Privacy Act 1988 (Cth) such as to render s 124 invalid.

[8] Most people who have filled out any type of online application to provide personal information, not necessarily a job application, will know that there are, what is described as, mandatory fields. An example is a name or an email address. These fields are usually boxes marked with a red asterisk/star. If the mandatory field is not completed then one cannot proceed further with the application.

[9] When Mr Willmott was completing the online application for the position as console operator, he was required to complete a number of mandatory fields. These fields included his name and address, how he heard about the position and whether he had previously worked for Woolworths. He then came to the box: '⃰_Date of Birth_', followed by '⃰What is your gender?'. The selection for this question had three options: 'No Selection - Female - Male'.

[10] The next mandatory field to complete was: '⃰Right to Work Evidence'. There is a drop down box which allows the applicant to select a particular basis to satisfy the right to work question. An example from the drop down box is Australian citizenship, temporary work visa, etc.

[11] Once this is completed, the applicant is then asked, again a mandatory field, to: '⃰_Please upload a copy of the document selected_'. To satisfy this question an applicant is required to upload, that is scan into the computer and attach to the application, one of a number of documents identified in the drop down box. Examples are: Australian passport; Australian citizenship certificate with photo ID; Australian full Birth Certificate plus photo ID or an international passport with the particular type of visa authorising employment in Australia.

[12] With respect to the "right to work" information documentation sought to be attached to the application, Mr Willmott contends that the provision of this documentation would include unnecessary information about his age and gender would also offend s 124 of the Act. In addition, this private information would be provided to Woolworths in circumstances where he may not even be considered for the position. The information would then remain in the possession of Woolworths for an indefinite period, and presumably, could not be retrieved by an applicant for a position. This private information could, hypothetically, be used by Woolworths in the future without the knowledge of the applicant.

[13] Mr Willmott also says that even if he had proceeded to complete the application, he would have been discriminated against because he did not have, on hand, a copy of a full birth certificate nor did he have a passport. This would not be unusual for an Australian citizen. Even if he had sought to obtain this documentation, the probability was that he would miss the closing date for the advertised position.

[14] In support of his criticism of Woolworths's conduct, Mr Willmott has provided information contained in a letter from the Department of Immigration and Border Protection[1], which suggests that it is not mandatory for an employer to check documentation from all workers. The letter also advises that from 2013:

the department expanded its published advice to employers, including providing practical and easy steps they can take to confirm an employee's work entitlement. This advice includes checking options that do not require employers to request citizenship documentation, such as a birth certificate and photo identification. Information on practical checking methods which are considered reasonable and accepted by the department is available on the department's website at www.immi.gov.au/legalworkers.

In many cases an Australian employer may have sufficient information from the material provided by a jobseeker when seeking employment. Information on a person's place of birth, education and work history are regular inclusions in job applications.

[15] On the basis of this information Mr Willmott says that it was unnecessary for Woolworths to ask firstly; the questions about date of birth and gender, and secondly; require him to provide the documentary information to prove his right to work in the initial online application, which would require him to upload confidential information.

[16] He also makes the point that Australia is not like the United States or Europe where there are tens of thousands of illegal workers. In Australia the number, by comparison, is miniscule and therefore there is simply no need to provide information about right to work at the initial application stage. Insofar as this relates to unlawful non-citizens[2], Australia has a stringent policy requiring offshore processing for those arriving in Australia in non-conventional ways, which severely restricts the number of persons who might be trying to apply for jobs without the correct documentation. Therefore the risk of an employer breaching the obligations under the Migration Act is extremely low.

[17] Subject to a consideration of the respondent's defence and the implications of the Migration Act, I find that the questions asked in the application are discriminatory.

[18] Essentially, Woolworths say that, even though the form has now changed and the questions complained of are no longer asked in the application form, the information sought by it in the online application was reasonably required by it so it could discharge its obligations as a potential employer and also to comply with Commonwealth legislation.

[19] The evidence to support its position that the information was reasonably required is contained in two statements of evidence provided by two employees of Woolworths, they are Rhonda Van Kempen,[3] Human Resources Shared Services Leader and a statement by Michelle Mary Tanti,[4] Human Resources Information Specialist.

[20] Ms Tanti, in her statement dated 15 September 2014, explains in quite some detail how jobs are advertised and how the online recruitment process works. A jobseeker can register with Woolworths and obtain a login to their jobsite by completing an account to sign-in to the WOW/careers website. In doing so they have the option of including a Candidate Profile, can attach a curriculum vitae and details of education qualifications and work experience. A candidate can also include special skills and language skills. All of this additional information is optional and then is stored in Woolworths' database for future reference when an application is made or for Woolworths to source a candidate for a particular position.

[21] In respect of a specific job application, Ms Tanti describes the various fields that have to be completed on the online application form. At the time of making her statement, the mandatory fields did not include those referred to above and which form the substance of Mr Willmot's complaint. There is no requirement to provide the date of birth and the gender field is now optional. It is now not mandatory to provide the "right to work" documents but simply state the basis upon which it is asserted there is a right to work in Australia. Additionally there is an explanation on the application form setting out why there is a need for the information about the right to work, and the need for documentation if an interview is granted. It is as follows:

Australian Government legislation requires us to ensure that all our employees have the right to work within Australia. If selected for an interview original/certified right to work documents will need to be sighted by the hiring manager. Please specify which evidence type you would be able to provide if selected for an interview. If successful, you will be required to upload this document to your application.

[22] Her statement goes on to describe what happens at the various stages of recruitment within Woolworths. She provides reasons why it was necessary to obtain the date of birth and gender of a prospective jobseeker at the application stage as well as the right to work evidence.

[23] At paragraph 51 of her statement, and following, she says that the employee computer system, SuccessFactors, which stores all information about an employee, will not allow a new file to be created without a person's name, date of birth and tax file number. Date of birth is important because:

• It determines the entitlements the employee might be entitled to, an example is an employee under the age of 21 is paid at a different rate under a different enterprise agreement as opposed to an employee over 21.

• It is a means of differentiating between employees with the same name (Woolworths has about 190,000 employees across Australia).

• In some positions, an employee must be over the age of 18, e.g. BWS liquor outlets.

[24] Date of birth can be important on a specific application form to streamline applications if the applicant is required to be over 18 years of age. This of course is understandable, but like the explanation for the need for the right to work evidence now on the application form, such an explanation, would probably satisfy s 124(3). Ms Tanti also says that in June 2014 the date of birth was changed to a non-mandatory field. She thereafter provides an explanation as to why this change occurred and the resultant increase in workload for the recruitment officers. The changes were implemented on 1 September 2014.

[25] Ms Tanti said the change in removing the mandatory field of date of birth has meant the information would have to be put into a candidates file in SuccessFactors by the recruitment officer. It also meant that the pre-screening process was not as efficient as it might otherwise have been had the system not changed.

[26] Once again following the implementation of the SuccessFactors programme in September 2013 the right to work documentation was supposed to be uploaded by a jobseeker. The reason for this was to assist the recruitment officer in determining, on the application, whether the applicant was permitted to work in Australia to ensure Woolworths did not fall foul of its obligations under the Migration Act. It created more efficiencies in processing applications so that only those who were permitted to work progressed to being considered by the recruitment officers.

[27] That system also changed 'based on internal user and candidate feedback'. The reasons proffered are that it decreased the 'data stored on the server' and it enhanced the candidate experience in not requiring them to scan and upload documents. The procedure now is that a candidate is asked to nominate, on the application, the type of document/s they intend to provide at the interview to satisfy Woolworths of the candidate's right to work in Australia. The physical evidence is then checked at the interview, usually before it commences.

[28] As for the gender question, Ms Tanti discusses Woolworths' obligations under a Commonwealth Government initiative to gather statistics on gender of applicants for positions. In February 2013, the Commonwealth Government issued the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 ("WGE Instrument"). Woolworths assumed it would have to gather this information from April 2014, however this did not eventuate. Again, it was considered that the best way to gather this data was for an applicant to nominate gender on the application form. This was done, she says, to comply with the company's legal obligations.

[29] Like the date of birth information, the input field requiring gender information has now changed to make it optional for a candidate to select should he or she wish to do so.

[30] All of the above changes have addressed Mr Willmott's concerns about the online application form.

[31] Ms Van Kempen's evidence is very much in line with that of Ms Tanti in respect of the necessity for the date of birth and gender information and the need for right to work documentation with the application. She also addresses the alternate means to determine if a candidate has a right to work in Australia, that is, to conduct a "Visa Entitlement Verification Online" ("VEVO") check through the Department of Immigration and Border Protection ("DIBP"). Understandably, to do VEVO checks on about 670,000 applications received each year would be a 'very substantial and time-consuming administrative task'. Also, a VEVO check will return no result if the applicant is an Australian citizen.

[32] To overcome this, an applicant was required, at the time of Mr Willmott's application, to upload the right to work documentation, but again the system has now changed as described above. Ms Van Kempen also discusses and rationalises the system adopted by Woolworths as opposed to the practical steps recommended by DIBP in the application process.

[33] In view of this evidence, the question for me to determine is whether the actions of Woolworths and the rationale for those actions constitute a defence under s 124(3) of the Act at the time Mr Willmott made his application.

[34] The justification for this information relates to a number of factors. Some jobs that are advertised actually require that the applicant be over 18. This would typically include liquor outlets and perhaps service stations. The other reason why date of birth is important is the prospective employee's remuneration entitlements once employed.

[35] For those positions that do require an applicant to be over 18 years of age a simple question on the form asking if the applicant is over 18 would probably suffice, together with an explanation on the application form as to why the question was being asked and why an answer was necessary. This, in my view would then constitute a valid defence under subsection (3) because the information would be reasonably required. It would be pointless to interview an applicant under 18 for these types of positions.

[36] As for the other reason, going to entitlements, this information is clearly not necessary until an applicant has been, at the very least been offered a position with Woolworths, or perhaps when discussing the position and advising an applicant of the entitlements relating to the position. It may well suit Woolworths' administrative processes to gather the information at an early time, but it cannot be said to be reasonably necessary at the time of completing the online application.

[37] I therefore find that the defence in respect of asking for the date of birth on the application form is not made out.

[38] The justification for this is reliant on the proposed requirement for gathering information required by the Commonwealth Government under the WGE Instrument. I have been referred to the instrument and the obligations sought to be imposed on employers under it. The explanatory statement for the instrument says:

A relevant employer must provide information about the composition of application for recruitment exercises, interviewees and successful applicants appointed to positions by gender and by manager/non-manager...

[39] The only relevant part of the explanatory statement that might relate to the application stage is with reference to "recruitment exercises". The balance of the information can be gathered at or after the interview stage of the recruitment process. I am unclear as to what is actually meant by "recruitment exercises" but presumably it means application for employment or employment with the relevant employer. This is also consistent with the obligations imposed in Schedule 2 - Amendments to Schedule 1 to the WGE instrument, which provides in paragraph 1 that 'each relevant employer is to report on the gender composition of its workforce'. The report is to include:

• 1.2 The existence of strategies or policies to support gender equality.

• 1.3 The composition of recruitment applications by gender and by manager/non-manager.

[40] It seems to have been assumed by Woolworths that the only way to gather the information required to comply with the obligation, is for applicants to nominate gender on the application. However, the obligation is on an employer to provide such information that it gathers in the recruitment process. It does not impose an obligation that requires potential applicants to nominate their gender when making an application. If the information gathered, without specifically insisting through a mandatory field to nominate gender, clearly identifies an applicant as female or male, it is this information that would be provided in the report. It is reasonable to suppose that the name of the applicant could, in many cases, give an indication of gender from which Woolworths could make a reasonable estimate of the gender of applicant for the purposes of complying with the WGE instrument.

[41] What Woolworths has now done, sensibly, is firstly made the field non-mandatory and secondly, include an option of "no selection". In addition, there was not legal requirement to gather this information at the time when Mr Willmott completed his application. The requirement has now been put off until 2015.

[42] It is difficult to see how it could ever be justified to insist that an applicant upload documents containing confidential information, like birth certificates, passports and visas when first applying for a position with Woolworths. Accepting there are approximately 48,000 jobs to be filled each year, with about 670,000 applicants applying for those positions, means there is a substantial amount of confidential information being imparted to Woolworths during the recruitment process.

[43] Again, the sensible approach now taken is to simply ask an applicant to nominate the basis upon which an applicant has a right to work in Australia. Then, if an interview is undertaken, the relevant documentation can be produced for sighting by a recruitment officer. This avoids the result that thousands of documents containing confidential information remain stored in Woolworths' database, or I suppose "the cloud".

[44] It follows from this, that firstly; there is no legal requirement under the Migration Act for an employer to require proof, at the application stage, of an applicant's right to work, and secondly; it follows that the information could not be said to be reasonably required for the purposes of s 124(3) of the ADA Act. The defence under the section therefore fails.

Is s 124 of the Anti-Discrimination Act inconsistent with the Migration Act?

[45] Division 12 Subdivision C of the Migration Act deals with a person's right to work in Australia. The division also provides for offences for non-compliance with the Division and civil penalties. It classifies non-citizen workers into two categories in relation to work, unlawful non-citizens, and lawful non-citizens. An unlawful non-citizen is not permitted to work at all and lawful non-citizen cannot work in breach of the non-citizens visa conditions.

[46] Lawful non-citizens and unlawful non-citizens are defined in sections 13 and 14 of the Act. A lawful non-citizen is a person who holds a visa that is in effect in the migration zone; and an unlawful non-citizen is a person who is not a lawful non-citizen, that is, does not hold a visa to work in the migration zone.

[47] Section 245AB of the Act provides:

• (1) A person (the first person) contravenes this subsection if:
  • (a) The first person allows, or continues to allow, another person (the worker) to work; and
  • (b) The worker is an unlawful non-citizen.
• (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limit to) either of the following steps :
  • (a) Using a computer system prescribed by the regulations to verify that matter;
  • (b) Doing any one or more things prescribed by the regulations.
• (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.

(4) ....

(5) A person is liable to a civil penalty if the person contravenes subsection (1)

[48] Woolworths contends that if s 124 of the ADA Act prevents it from asking an applicant to provide proof of the right to work in Australia, this means it is prevented from complying with its obligations under the Migration Act. It says therefore, that s 124 is inconsistent with the above provisions of the Migration Act and insofar as there is an inconsistency, s 124 is invalid.

[49] As the Migration Act is a Commonwealth law, s 109 of the Constitution provides that where there is an inconsistency between a Commonwealth law and a State law, the Commonwealth law will prevail. This was explained recently by the High Court in Dickson v The Queen[5] where the Court said:

1. The statement of principle respecting s 109 of the Constitution which has been made by Dixon J in Victoria v The Commonwealth was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing as follows:

"In Victoria v The Commonwealth Dixon J stated two propositions which are presently material. The first was: 'When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid'. The second, which followed immediately in the same passage was: 'Moreover, if it appears from the terms, he nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so inconsistent.' The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of appeal, if the first proposition applies, then s 109 for the Constitution operates, even if, and without the occasion to consider whether, the second proposition applies."

1. The first proposition is often associated with the description 'direct inconsistency', and the second with the expressions 'covering the field' and 'indirect inconsistency'.....

[50] As the argument relates to a discrete section of the Anti-Discrimination Act, and does not seek to "cover the field" this submission falls into the category of "direct inconsistency". Woolworths must establish that in practical terms, it cannot comply with its obligations under the Migration Act because to do so would be discriminatory and therein lies the inconsistency.

[51] Obviously, an employer, like Woolworths, must exercise caution when recruiting staff to ensure that unlawful non-citizens are not employed. Also, that lawful non-citizens are employed in accordance with their visa authorisation to work.

[52] However, the question is how does subdivision C of the Migration Act conflict with the Anti-Discrimination Act so as to make s 124 of the Anti-Discrimination Act invalid? The offence referred to under the s 245AB only occurs when an employer allows or continues to allow the unlawful non-citizen worker to work. The offence does not occur by simply considering applications nor for that matter by interviewing workers, even those not permitted to work in Australia. When moving on with the process to the point of considering a prospective applicant for a position, it is reasonable for Woolworths to require information about the prospective employee's entitlement to work, as it now presently does. Insofar as the documentation Woolworths might want to sight, such as a birth certificate, passport etc, might disclose confidential information about an individual's attribute, age and gender, Woolworths could, at that time, rely on the defence created in s 124(3) of the Act_._

[53] It follows then that because the defence provision in subsection (3) protects Woolworths from engaging in discriminatory conduct in its compliance with the requirements of s 245AB, it is difficult to see how a conflict or inconsistency could arise which would render s 124 invalid for the purposes of s 109 of the Constitution. In short, I am of the opinion that the inconsistency complained of by Woolworths is cured by the defence created under s 124(3) of the Act.

Is s 124 of the Anti-Discrimination Act inconsistent with the Privacy Act?

[54] The privacy of individuals is governed by Commonwealth legislation, the Privacy Act 1988. It contains 14 Australian Privacy Principles, which must be adhered to by organisations, such as Woolworths. In particular, Principle 3.2 provides that an organisation 'must not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the entity's functions or activities', here the recruitment of employees for the operation of Woolworths' businesses.

[55] If an organisation, like Woolworths, breaches any of the Privacy Principles that is an interference with the privacy of an individual. Under s 13G, the organisation would liable to a civil penalty. The section provides;

(a) The entity does an act, or engages in a practice, that is serious interference with the privacy of an individual; or

(b) The entity repeatedly does an act, or engages in a practice, that is an interference with the privacy of one or more individuals

[56] Woolworths says that, for the reasons set out above, information sought by it from prospective applicants for positions constituted, personal information as defined by the Privacy Act[6]. It says that in the circumstances it was reasonably necessary to obtain that information for its functions and activities in recruiting and engaging employees. Therefore, to avoid falling foul of the Privacy Act, Woolworths must establish the information sought was reasonably necessary.

[57] However, Woolworths says that because the Privacy Act permits this conduct and the Anti-Discrimination Act prohibits it, in that under s 124 of the ADA Act asking of another person, here a prospective employee, to supply information on which unlawful discrimination might be based, there is an inconsistency. Because of the inconsistency, under s 109 of the Constitution, s 124 is invalid.

[58] However, this argument seems to ignore the defence raised under s 124(3) of the ADA Act, which imposes the same onus on Woolworths to establish that the information sought was "reasonably necessary" or "reasonably required". If the test is satisfied, then it seems to me that requirements of both Acts are satisfied and there is not inconsistency.

[59] Despite the sophisticated argument mounted by Woolworths' counsel, I have found that in the pertaining circumstances, the information sought by Woolworths was not reasonably necessary. On the basis of this finding of fact, it cannot be said that the exemption in seeking the information under the Privacy Act would apply. Similarly, the defence under the Anti-Discrimination Act is not made out because I am not satisfied that the information was reasonably required for a purpose that did not involve discrimination.

[60] Again referring to the discussion above, if the obtaining of the information was reasonably necessary, and thereby justified to escape a contravention of the Privacy Act, then the same argument carries equal weight in establishing the defence under s 124(3), that is, the information was reasonably required for a purpose that did not involve discrimination.

[61] It follows then that as I have found, as a matter of fact, it was not reasonably necessary for Woolworths to obtain the information, then Woolworths would not be in breach of the Privacy Act but would potentially be in breach of s 124 of the Anti-Discrimination Act.

[62] I am satisfied that Woolworths' conduct in requiring an applicant to provide a date of birth and gender on the online application form, is a contravention of s 9 of the Anti-Discrimination Act. In addition, I have come to the conclusion that the mandatory requirement to upload proof of work documents, containing private information is also a contravention of the Act.

[63] I am not satisfied that there is a conflict between the s 124 of the ADA Act and both the Migration Act and Privacy Act to render s 124 invalid under s 109 of the Constitution.

[64] Under s 209 of the ADA Act, if the Tribunal decides that the respondent has contravened the Act it may make one or more of the orders specified in subsections (a) to (h). They include, inter alia, requiring the respondent not to commit a further contravention; making an order for compensation; ordering the respondent make an apology (either private or public); requiring the respondent to implement programs to eliminate unlawful discrimination, etc. Also under subsection (5) damage includes the 'offence, embarrassment, humiliation, and intimidation suffered by the person'.

[65] Here, Woolworths has already taken steps to change the online application form, which has addressed all of the applicant's complaints considered in these reasons. Therefore, the only remedy that would have any utility in the circumstances is to award compensation for the loss and damage suffered by the applicant.

[66] Mr Willmott's evidence on how the actions of Woolworths have affected him is rather limited. He said in his statement[7] that he was 'sickened beyond belief' at Woolworths disregard for the anti-discrimination laws in Australia. I infer from this statement that he was embarrassed and humiliated in being compelled to provide the offending information before his application could progress. Because of this, he did not proceed with the application and therefore was not considered for the position. He is a local resident of the community in which the position of console operator was advertised and he believes he would have had prospects of being successful. He submits, therefore, he has suffered financial loss.

[67] As I indicated during the hearing, Mr Willmott has not produced any evidence of other positions for which he has applied or any probative basis upon which any claim for loss of income could be calculated with any precision. At best, and putting the claim for loss of income at its highest, his claim for compensation is limited to the loss of a chance[8] that he may have been successful in his application, if Woolworths had not engaged in the conduct complained of.

[68] Taking into account the embarrassment, humiliation and some notional amount for the loss of a chance, I assess Mr Willmott's total compensation at $5,000. I will direct that the amount of compensation be paid by 19 December 2014.

[69] There will be orders accordingly.

[2] Migration Act s 245AB.

[5] [2010] 241 CLR 491 at 502.

[6] Definition see Privacy Act s 6.

[8] Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638.