(Image: Tom Red/Private Media)
(Image: Mitchell Squire/Private Media)

Like George Orwell joining the International Brigades to defend Spain against the fascists, can Australians travel to Ukraine to help fight the Russians?

Ukraine President Volodymyr Zelenskyy has called for volunteers to get over there and join a foreign legion attached to the Ukrainian army. It’s had some support — for example, from the UK’s Foreign Secretary Liz Truss.

Not here, though. Prime Minister Scott Morrison has joined his foreign affairs and defence ministers, Marise Payne and Peter Dutton, in telling Australians to not even think about it — not just because it’s generally a bad idea to run towards a war but, as Morrison put it, the legal position of anyone who tries “remains very unclear”.

It’s a bit disconcerting when the head of government says he doesn’t know what his own laws provide. In the case of Australia’s national security laws, it’s understandable, since his party makes them faster than anyone can read them and they almost never get used for any purpose other than wedging Labor.

What is the legal position? We have to look at the part of the Commonwealth criminal code which deals with “foreign incursions and recruitment”. It was designed more with terrorist activity in mind (like going to Syria to fight with Islamic State, for instance) less than for a notion that in modern times has become a bit of a relic — fighting in a conventional war between sovereign states.

It is a crime for an Australian citizen or resident to “enter a foreign country with the intention of engaging in hostile activity” or to engage in hostile activity once you’re there. The maximum penalty is life imprisonment. Everything soldiers do in war meets the definition of hostile activity.

There are only two exceptions that could apply: if the person is serving in or with the armed forces of the government of a foreign country, or if the home affairs minister has made a specific declaration exempting the armed force with which the person is fighting.

This is why the government is hedging its legal bets; it’s not inconceivable that an Australian who makes it over to Ukraine could end up satisfying the definition of fighting with Ukraine’s “armed forces”. (The declaration of power is not likely to be exercised; it is there in case the government ever wanted to give its imprimatur to volunteers engaging in some hypothetical asymmetric war where there’s ambiguity over one or other of the combatant forces.)

The question would be more pertinent for an Australian citizen or resident who also holds Ukrainian citizenship. They would be directly eligible for service in Ukraine’s armed forces and would comfortably fit the exception.

For non-Ukrainians, it’ll be murkier. Much would depend on what the Ukrainian government does — for example, whether it purports to establish a foreign legion as a formal adjunct of its army, or instead leaves it with ambiguous legal status as an irregular volunteer militia.

There are good legal reasons why it might take the second option, such as not wanting to be held accountable for what the motley members of such a unit might do (war crimes and such).

The greater likelihood is that for any Australian who isn’t a Ukrainian citizen, travelling there and joining the hostilities will place them in legal peril back home. This could be easily exacerbated if they commit any acts which trip over our extremely extensive terrorist activity offences.

The whole issue could also be obviated entirely if the Australian government was to decide that a terrorist organisation has become involved in the Ukrainian conflict (not impossible) and declares the relevant area a no-go zone for Australians. If that happened, the prohibition on Australians entering the zone altogether becomes complete.

I certainly understand why the government is keen to dampen anyone’s enthusiasm for getting involved in the war. But I think it should speak clearly about the legal situation rather than obfuscate. Claiming it doesn’t know what the law says is just not a good look, regardless of circumstances.