Not Child-Related: Unnecessary Working with Children Checks as Irrelevant Criminal Records Discrimination

From personal trainers to plumbers, many Victorians are now asked by their employers to pass a working with children check (‘WWCC’). Workplaces impose these policies despite not being ‘child-related’ under the Worker Screening Act 2020 (Vic). They therefore lack any legal requirement or entitlement to do so. As a consequence, persons with a criminal record are increasingly excluded from employment involving minimal or no contact with children. This paper explores the causes and consequences of unnecessary WWCC policies. Its aims are twofold: first, having regard to the statutory framework for WWCCs and recent developments in anti-discrimination law, it argues that these policies should be framed as a form of irrelevant criminal records discrimination. Secondly, it examines the scope and effectiveness of remedies available to those refused or fired from non-child-related work for failing to pass a WWCC: anti-discrimination complaints on the basis of irrelevant criminal records discrimination; fair work protections; and merits review of WWCC decisions by administrative tribunals. This paper closes by proposing WWCC applications should only be processed where applicants provide evidence of an intention to work with children, and that penalties should be imposed on non-child-related employers requiring staff to pass a WWCC.