Lying on US VWP app - criminal record data matching

[oz_mark]

• ►►However, with some special exceptions which do not apply here, by regulation, Australian Entities/People/Authorities are not permitted by law to disseminate any information about a persons Judiciary record to any entity/person/authority in relation to a conviction that is considered "Spent" or "passed". This included ◄◄​

Keep in mind that the definition of 'spent' varies between states, and if the OP is in South Australia or Victoria, there isn't much in the way of legislation around 'spent convictions'.

 

[serfty]

There exist Federal regulation that define "Spent" or "passed" convictions. States may legislate more relaxed terms but the Federal legislation could possibly override any state legislation where applicable.

The scheme applies to spent convictions where a waiting period has passed and the individual in question has not re-offended.
The following conditions apply to convictions for a Commonwealth, Territory, State or foreign offence:

• it has been 10 years from the date of the conviction (or 5 years for juvenile offenders)
• the individual was not sentenced to imprisonment for more than 30 months
• the individual has not re-offended during the 10 year (5 years for juvenile offenders) waiting period
• statutory or regulatory exclusion does not apply

To re-iterate, while a request for criminal history from USA authorities may always be granted, information passed on as a result should not include any in relation to Spent/passed convictions.

Living down the past - Spent convictions schemes in Australia -- [1994] PLPR 80; (1994) 1 PLPR 103

Spent Convictions Scheme - Australian Federal Police

*There are exclusions, but non Australian/Government bodies are not among them.

 

[russ]

... the Federal legislation would override any state legislation where applicable.

Really? Or have I missed the vibe of the constitution?

 

[oz_mark]

To re-iterate, while a request for criminal history from USA authorities may always be granted, information passed on as a result should not include any in relation to Spent/passed convictions.

Living down the past - Spent convictions schemes in Australia -- [1994] PLPR 80; (1994) 1 PLPR 103

Spent Convictions Scheme - Australian Federal Police

*There are exclusions, but non Australian/Government bodies are not among them.

You might want to read the sentence immediately after the portion you quoted:

The spent convictions scheme is established by Pt VIIC of the Crimes Act 1914 (Cth). Basically, an individual is not required to disclose a conviction or the related charge if the conviction has been the subject of a pardon, has been quashed, or is ''spent'. A conviction is spent if a pardon was granted for other than wrongful conviction or if it meets all of the following conditions:

1. It is ten years or more since the date of the conviction, or five years since the date of the conviction if the person dealt with was a juvenile.
2. The sentence imposed (not what was actually served) was a fine, bond, community service order or imprisonment for a period of less than 30 months.
3. There have not been any further offences in the ten (or five) year period.
4. An exclusion does not apply.

This protection applies throughout Australia with regard to Commonwealth and Territory laws. It also applies to State laws when the individual is dealing with a Commonwealth agency.

and from the Victoria Police release policy

Can I have my Victorian criminal history “spent” or “rehabilitated”?

No. In some states there is legislation in place to have criminal history spent or
rehabilitated so it is not released for employment purposes. Victoria does not have this
type of legislation.

http://www.police.vic.gov.au/retrievemedia.asp?Media_ID=34692

 

[serfty]

...

and from the Victoria Police release policy

http://www.police.vic.gov.au/retrievemedia.asp?Media_ID=34692

Reading on you see the release policy for Victoria is in line with the Federal regulation. Of course that's a policy and not a regulation; however in practice it would appear be little different from states with such legislation.

17. Can I have my Victorian criminal history “spent” or “rehabilitated”?

No. In some states there is legislation in place to have criminal history spent or
rehabilitated so it is not released for employment purposes. Victoria does not have this type of legislation.

The release policy is applied automatically when convictions reach the appropriate age. In most cases, criminal history will not be released after 10 years if the last finding of guilt was heard in an adult court or 5 years if it was heard in a children’s court. An exception to this is that if a single charge received a sentence of imprisonment of longer than 30 months, in which case that charge (or charges) only will be released. In all states, criminal history information will continue to be available for the purposes of law enforcement and the administration of justice.

Really? Or have I missed the vibe of the constitution?

It seems I may have; however policy seems to generally cover the issue at hand.

You might want to read the sentence immediately after the portion you quoted:
...

The section I quoted was from the AFP web site, there is no such disclaimer (Spent Convictions Scheme - Australian Federal Police), however being a federal site, there is probably little need.

 

[SmilerUK]

I would love to get that link re interpol..........and also the results of what the AUS privacy commissioner says. I have the same situation but going the other way (DUI not intent etc).

I also would love to know how people are so sure "convictions travel with you wherever you are". yes if you are on a terrorist list or likely been done for murder then OK but there has to be a limit. If someone can show me the "convictions travel with you proof" I would love to see it.

 

[thewinchester]

I also would love to know how people are so sure "convictions travel with you wherever you are". yes if you are on a terrorist list or likely been done for murder then OK but there has to be a limit. If someone can show me the "convictions travel with you proof" I would love to see it.

I can't think a way of responding to this post without breaking into seven rounds of "Every sperm is sacred" and wondering who are the people who ask such bereft questions.

From a post earlier today:

In broad terms - an immigration/border protection agency is able to verify a person's bona fides through arrangements with like agencies in other countries, and the ability for them to do so is granted by way of your entry documents into their country.

It's simply a matter of them picking up the phone to their counterparts and asking the relevant questions. In theory, if crimes or activities don't appear on your federal criminal record check or within existing databses operated by the like agency, then there won't be anything for their counterpart agency to disclose.

Because you're too lazy to do any basic research, let me summarise this for you.

These arrangements are generally enshrined in various treaties and inter-country arrangements. Specifically, this is in part codified and facilitated under the treaties and legal documents where a countrty becomes a member of Interpol (Australia has been a member since 1948).

Transaction of information are generally performed under the auspices of the national central bureau (NCB) of each member country. In Australia's case, the designated NCB is the Australian Federal Police.

The transfer of information between member nations and their designated NCB is governed, in part, by Rules on the processing of information for the purposes of international police co-operation.

Agencies such as IMMI and Customs and Boarder Protection have access to such information under appropriate arrangements, which in addition are approved and enabled under existing federal data matching and information sharing legislation (can't remember the exact act enabling this), plus facilitate the transfer of information between states and the NCB, in part for the purpose of the unified and streamlined national police clearance system introduced in recent history.

And as previously explained, if they can't acquire it through the usual channels )which is a call to the immigration agency of the passport holder's home country), they just pick up the phone to the NCB for their country, who will go through the processes to requsition that via the NCB of the passport holders home country. And until they get that response, you're likely to languish in immigration detention until such a time whereas they are satisfied you are of no risk and entitled to enter - or must be deported.

As for the Federal Privacy Commissioner, this would be their summarised response:

1. You are entering another country, subject to their soverign authority where you have a required duty of disclosure,
2. You entry to that country is predicated upon full and frank disclosure of any information which may hold you right to enter their soverign borders in question, and
3. Inter-country arrangements allow the transmission of information between soverign authorites for the purpose of policing their borders where there is a reasonable concern as to the bona fides of such persons.

Or in simple terms - their response would be you have no legal right nor reason to question this, and obviously have something to hide.

As has been made clear, the onus is on you to fulfil your obligated duty of disclosure as part of gaining entry to the soverign territory to another national. If you lie, you will most likely get caught, and will definatly suffer the just consequences of same.

In any case, I resubmit that this entire thread it has been a complete and utter waste of the AFF communities time, is circular in argument for no reasonable point and should therefore be closed.

 

[medhead]

Or in simple terms - their response would be you have no legal right nor reason to question this, and obviously have something to hide.

I think you are totally misrepresenting the privacy commission with this assertion. There is no way they would have that view. The fact is that everyone has something to hide; their private information and identity:!:

The response would be more like "sorry you don't have a right to privacy in this situation as the agencies involved are legally entitled to see that information in order to protect their borders as agreed by international treaty".

BTW I agree with most of the rest of your post (excellent summary), but I do think that if you feel it is a waste of your time, why even read the thread and why post?

 

[thewinchester]

I think you are totally misrepresenting the privacy commission with this assertion. There is no way they would have that view. The fact is that everyone has something to hide; their private information and identity:!:

The response would be more like "sorry you don't have a right to privacy in this situation as the agencies involved are legally entitled to see that information in order to protect their borders as agreed by international treaty".

Considering the nature of some posters on this thread, I thought the language above was far more appropriate given the to the point clarity - plus it's pretty much the near-exact thing that would be going through the head of the poor Govt. staffer who'd get stuck with the person making that enquiry.

BTW I agree with most of the rest of your post (excellent summary), but I do think that if you feel it is a waste of your time, why even read the thread and why post?

A fair question. Simple answer, too many silly questions have been asked, and pointless suggestions made. The more factual information, and the more often the silly questions are called out are better.

I'm of the view that AFF is not the place to entertain questions regarding the specifics of visa and immigration issues. I'd go as far as saying the limitation of the who, what, where, why and how is fine - but answers to specific sets of circumstances is the place of that country's immigration agencies.

After all, the last thing AFF needs is a frivilious action from some litigious luddite who asked a question here, acted on the information without any further investegation or common-sense checking with the appropriate authorities, and was denied entry to a country because of their specific circumstances.

 

[russ]

Considering the nature of some posters on this thread, I thought the language above was far more appropriate given the to the point clarity...

Huh? Saying that "you have no legal right nor reason to question this, and obviously have something to hide" doesn't give clarity, it's just plain wrong.

The more factual information, and the more often the silly questions are called out are better.

Agreed! That's why I'm calling you out on your silly statement.

 

[medhead]

Considering the nature of some posters on this thread, I thought the language above was far more appropriate given the to the point clarity - plus it's pretty much the near-exact thing that would be going through the head of the poor Govt. staffer who'd get stuck with the person making that enquiry.

I resemble that govt staffer in a former life. But I can honestly say that while I might have had choice thoughts I always gave the DS answer.

 

[thewinchester]

I resemble that govt staffer in a former life. But I can honestly say that while I might have had choice thoughts I always gave the DS answer.

And no doubt you've lost count of the number of times you wish you could just reach through the phone to glove slap some sence into the person on the other end

Huh? Saying that "you have no legal right nor reason to question this, and obviously have something to hide" doesn't give clarity, it's just plain wrong.

Russ, go back and read the post which gave rise to my comment.

The poster in question made a daft statement, bereft of any logic regarding the issue of privacy and criminal records as it pertained to immigration law and process.

It needed to be put in plain, frank English that the poster could clearly understand despite their exhibited poor command of common sense and logic, let alone basic legal principals and soverign national rights.

As someone who has worked in Government dealing with customers for more years than I care to admit - I can say with hand on heart that the poor employee dealing with any customer whining like the poster in question would be rolling their eyes thinking exactly what I said.

That's all while wishing the caller would go forth and multiply quickly, so they can get on and deal with customers who have actual important issues that need the agency's attention.

Or, for people like you who need things explained to them and taking inspiration from Toby Ziegler in The West Wing, my post was the "Oxford Debating Society equlivilent" of telling the poster wake up to themselves and join us in reality.

Agreed! That's why I'm calling you out on your silly statement.

Let me get this straight, you're calling someone out who made a logical statement by yourself making a completly silly statement, let alone not identifying anything of substance that would be considered illogical.

Sorry, but your supposed calling out is illogical. Do not pass go, do not collect 200 dollars.

 

[serfty]

The reality is, there is information that Australian government agencies¹ are prevented by law from giving out to institutions such as the US DHS in relation to Visa applications.

Yes, a "telephone call" can be made, but for an agent of a government entity to disclose such information in contravention of the law would be problematic.

¹ Federal and most state

 

[medhead]

And no doubt you've lost count of the number of times you wish you could just reach through the phone to glove slap some sence into the person on the other end

Actually, I would normally take a more pragmatic view and think that it was good that the person had realised they didn't know and were ringing to find out. I learned to remember that I worked in the area everyday and hence I was an expert, whereas the people calling me were not experts. Even if they were experts in other areas. So with that in mind I just think that people may not know and that it can be better to correct them in a good way and not a bad way, especially as what I read of the other post was basically expressing the principle of privacy, i.e. I have a right to protect my information, but lack the knowledge that there are exceptions.

It needed to be put in plain, frank English that the poster could clearly understand despite their exhibited poor command of common sense and logic, let alone basic legal principals and soverign national rights.

Well see above, they expressed the basic principle related to privacy. Surely, it would have been sufficient just to point out the information related to international treaties and etc. without being frank. :-|
When it comes to Acts and regulations I find that logic rarely comes into it.

 

[russ]

thewinchester, are you really saying that it's logical to say: "you have no legal right nor reason to question this, and obviously have something to hide"?