Australian criminal record and entering the US

arrest only, NO conviction that we should just say no on the form?

You should say "yes." The question on the form says "arrested or convicted."

am i right in saying that arressts won't come up on the screen of the officer at immigration?? only convictions??

It depends on the level of data sharing the US has with Australia, which is something I do not know. I do know that the US shares data with the UK, and if Australia and the UK share data, it is possible it could show up.

Of course, this all assumes the arrest was of a "crime of moral turpitude." If there was no "moral turpitude," then you check "no." See the FAQ above for a list.

We do share data, which is why you'd be mad to lie about a conviction.

But if we don't record a conviction, we have no data to share.

But if we don't record a conviction, we have no data to share.

But are arrests recorded? If they are, then the data may still find its way to the US authorities.

The question AFAI remember is arrested or convicted for a crime of over 5 years imprisonment OR a crime of moral turpitude.

The definition of moral turpitude is up for debate, however it is unlikey that petty shoplifting would be moral turpitude. Having sex with a sheep in a school playground probably would be moral turpitude. Therefore, OP can truthfully answer "NO" to the criminal arrests/convictions question since petty shoplifting is not moral turpitude and the penalty certainly was not 5 years in prison.

Additionally the extent of US-Australian data sharing is very limited - the chance of petty convictions for shoplifting being shared are very, very low.

Also if OP is still following this thread:

Walk into a police station in Australia with ID and ask if you have a criminal record. The magistrate would have a number of options when he fined you including recording a conviction or not recording a conviction, despite a finding of guilt. In hindsight it would have been better if you fronted up to court in person, shown remorse and asked for a conviction not to be recorded.

The question AFAI remember is arrested or convicted for a crime of over 5 years imprisonment OR a crime of moral turpitude.

The questions is
>Have you ever been arrested or convicted of an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

That's a direct quote from the form.
Meeting any one of these invalidates you; it's not a matter of meeting all.

The definition of moral turpitude is up for debate

No, it's not. The State Department maintains an explicit list. See the FAQ.

OK I have now looked at the State Dept doc and theft is listed as a crime of moral turpitude. However:

9 FAM 40.21(a) N7.1 Provisions of INA
212(a)(2)(A)(ii)
(CT:VISA-1318; 09-24-2009)
As amended, a conviction or admission of the commission of a crime of
moral turpitude will not serve as the basis of ineligibility under INA
212(a)(2)(A)(i), if the following conditions have been met:

(1) The applicant has been convicted of or has admitted to the
commission of only one crime;

(2) The maximum penalty possible for the crime of which the alien was
convicted or for which the alien legally admitted to did not exceed
imprisonment for one year and, if the alien was convicted and the
alien was not sentenced to a term of imprisonment in excess of six
months; or

(remainder deleted)

here http://www.state.gov/documents/organization/86942.pdf

You are misapplying that document. That is for all visas+. While you must be eligible for a visa to be eligible for the VWP, the VWP has +stricter guidelines than those for visas.
In other words, citing a document on eligiblity for visas does not indicate all the requirements for the VWP.
For the VWP, there is the extra requirement that you have not been arrested or convicted of moral turpitude, as noted before.

I think the document I referred to is applicable and the treatment of minor offenses is deliberately left vague. The ineligibility or otherwise of people with arrests or convictions and what is moral turpitude, has been defined by case law and is not written into the act. Even the State Dept docs refered to by both me and you are State Dept interpretations of immigration law. Now obviously a State Dept interpretation of immigration law carries weight, yet still many people with minor convictions and many more with arrest records but no convictions regularly enter the United States under the VWP.

Further examples on the State Dept's own website, despite the arrivals form given to travellers at the airport or inflight asking about arrests, only refers to convictions: http://travel.state.gov/visa/temp/without/without_1990.html#national
When does a national of a VWP country need to apply for a visa instead of using the VWP?
(deleted)
Has a criminal record or other condition making them ineligible for a visa State Dept link follows, which includes the same information I described in my link in post #25. Note absense of reference to arrests.

On various US Embassy websites (eg here: http://curacao.usconsulate.gov/visa_waiver_program.html) it does not refer to arrests, only convictions.

It seems the guidelines of declaration of arrests and minor convictions are deliberately obtuse or deliberately unenforced. For simple arrests not resulting in convictions, the US government has no facility to check if a person were to simply answer "no" to the entry form question. Similarly for minor charges which do result in a conviction or for spent convictions, it is unlikely that the US government would have access to this information... the governments of most countries around the world are certainly not going to hand out minor conviction information to foreign goverments.

Leaving aside argumetnts of what someone is obliged to put down on the entry form and if they are eligible for the VWP or not, a course of action for someone with an arrest or minor conviction could be:

• Apply online for the eVisitor permit
• Do not mention the arrest or single minor conviction
• Do not declare it on the entry form
• Accept that you will probably be able to enter the US, but there is a possibility that you may be refused entry.

As I noted, any requirement or otherwise to declare minor convictions is routinely ignored and the ethics and legality of this approach are a different topic.

If the applicant were to apply in advance for a visa and declare the conviction, then that would mean that the US govt then had the arrest/conviction information and every future entry into the US would require a visa.

I think the document I referred to is applicable

I didn't say it wasn't. I said it's only part of the requirements.
Once again, you must be eligible for a visa in order to be eligible for the VWP, then you must follow the VWP specific requirements in addition.

and the treatment of minor offenses is deliberately left vague.

That's because you cited the law.
Laws are the basis. They are further defined by rules. Those, in turn, are further defined by departmental procedures.
Just because it is not in the law, doesn't necessarily mean you are ok or not. You must read the further limitations of the rules and procedures. Those further limitations include "arrested," as explicitly noted on the form.
Also, from the Tokyo embassy:
>Who is not eligible to use VWP:
>Some travelers may not be eligible to enter the U.S. visa free under the VWP. These include people who have been arrested, even if the arrest did not result in a criminal conviction, those with criminal records (even if subject of a pardon, amnesty, or other act of clemency), certain serious communicable illnesses, those who have been refused admission into, or have been deported from, the U.S., or have previously overstayed on the visa waiver program. Such travelers must apply for a visa. If they attempt to travel without a visa, they may be refused entry into the U.S.

(underlining added)
And from the CBP:
>Q: What information is needed in order to complete the ESTA application?
>A: The traveler must provide, in English, biographical data including name, birth date and passport information. The traveler also must answer VWP eligibility questions regarding communicable diseases, arrests and convictions for certain crimes, past history of visa revocation or deportation and other questions. The traveler will also need their credit card information to pay the associated fees in order to complete the ESTA application.

(underlining added)

It seems the guidelines of declaration of arrests and minor convictions are deliberately obtuse or deliberately unenforced.
any requirement or otherwise to declare minor convictions is routinely ignored and the ethics and legality of this approach are a different topic.

No. All entry is at the discretion of the official you receive, and the stipulations of the VWP expressly state this. If you meet all the requirements for the VWP, or even have a visa, they are well within their right to deny you regardless. Conversely, they also have the right to waive aspects of the requirements if they deem fit, including the crimes.
It's not that these are "unenforced," but rather official discretion being used at the border.

If the applicant were to apply in advance for a visa and declare the conviction, then that would mean that the US govt then had the arrest/conviction information and every future entry into the US would require a visa.

Only if it was a crime of moral turpitude, as noted on the official list.

Btw, please do not advocate breaking the law, as you do in #28 when telling people to lie on their forms. That is against the rules of the forum.