If Prime Minister Tony Abbott believes Daesh militants are indeed worse than the Nazis, why then has he made it illegal to join the modern equivalent of the French Resistance?

It is a question being asked by a group of Australian military veterans who wish to enlist with the various Kurdish militias fighting to contain Islamic State – an ambition that could see these former Australian Defence Force soldiers face penalties as severe as life imprisonment under legislation introduced by the Abbott government.

Adelaide criminal defence lawyer Ralph Bleechmore is offering legal advice to a number of veterans keen to join the fray. He said that between his clients and those he has consulted there are at least 15 former soldiers considering their options, and Bleechmore believes they are passing on his advice to others still. 

“A lot of people who don’t want to be on the radar, as it were,” he said.

Bleechmore, who has involved himself in veterans’ affairs since his own experiences as a platoon commander during the Vietnam War, said the mix of “young and old” veterans are mostly of an infantry background. He said even his fellow Vietnam War veterans could still be of use in conflict zones.

“Vietnam veterans would be very limited now in what they could do – in fact, they’d probably be a liability,” he said. “But they could still call in air or artillery strikes better than anyone else could, helping the Australians in the air.”

Bleechmore, who is travelling to Iraqi Kurdistan next month to assess the situation on the ground, has sought clarification from the Commonwealth Director of Public Prosecutions and Attorney-General’s Department regarding the “grotesque” prospect of laws created ostensibly to detain Australian Daesh extremists also being used to imprison those fighting against the terror group. The Foreign Fighters bill passed last year significantly strengthened existing penalties and created new offences – such as criminalising the act of travelling to declared areas without an approved reason, fighting for any non-state force in Syria or Iraq, and aiding a proscribed terrorist organisation directly or indirectly. The current declared areas, categorised at the discretion of the foreign minister, are al-Raqqa province in Syria and Mosul province in Iraq – both strongholds of Islamic State militants. 

The legal concerns are no longer merely hypothetical – Melbourne man Jamie Williams, 28, was released on bail last month after being charged with planning to fight alongside Kurdish forces, and faces a maximum penalty of life imprisonment. The Melbourne Magistrates Court was told on August 11 that the former French Foreign Legion fighter and homeless shelter volunteer had wanted to use his skills for good, and was provided alleged excerpts from Williams’ correspondence with an acquaintance. 

“I’d rather live happy for a short time doing something that I feel means something rather live a long time doing nothing,” he wrote.

According to Williams’ lawyer, Robert Stary, the trial will likely start next year. Stary said Australia’s approach is at odds with that of allies such as Britain, which recently clarified that its citizens fighting with Kurdish forces would not be charged on return.

“Our blanket prohibition is a curious state of affairs when it is suggested Australia is providing material and military support to the Kurdish people,” he said.

Stary recommended veterans considering a similar path to Williams tread carefully given the vast array of legal factors to consider, including that Kurdish group PKK – affiliated with some of the organisations fighting against Daesh – is listed as a proscribed terrorist organisation by the Australian government. “It’s a mess in every possible sense,” he said.

The Australian Kurdish Association argues that the PKK is classified as such by Australia to placate Turkey, an important strategic partner in the region and PKK adversary. In recent months, Turkey has started bombing Daesh targets across the border in Syria, but its air force is far more frequently striking out at Kurdish strongholds – thus attacking two opposing sides in the Syrian conflict. The PKK wants an independent Kurdistan that would include a portion of current-day Turkey, and has a long history of attacks on Turkish targets, including a deadly bomb blast last Sunday that killed more than a dozen Turkish soldiers.

Nevertheless, Kurdish forces have done more to slow the advance of Daesh than anyone, and Australian veterans have noticed. On behalf of his clients, Bleechmore has raised the issue with the Returned and Services League in the hope the influential veterans group will pressure the Abbott government into changing the law. As opposed to pushing for an amendment to the Foreign Fighters Act, the goal is to achieve an exemption for those fighting alongside the Kurds by way of a ministerial edict.

The RSL’s national president, Rear Admiral Ken Doolan, refused to elaborate on the organisation’s involvement: “The government’s position is well known and the RSL doesn’t want to make any comment on that.” 

The Attorney-General’s Department has said that Australians might think joining an overseas conflict seems like the right choice, but they will only be putting themselves and others in danger and adding “to the suffering in Syria and Iraq”. 

Like the legal issues, the danger is not just hypothetical. At least two Australians have died fighting on the side of Kurdish forces this year – former army reservist Ashley Kent Johnston, 28, who was shot by Daesh militants, and Reece Harding, 23, who stepped on a landmine.

Speaking at RAAF Base Williamtown in NSW on July 1, following Harding’s death, Abbott made a distinction between the Gold Coast man’s motives and those joining Daesh, but did not go so far as to indicate he would have been treated any differently on return.

“Obviously there’s a moral difference between fighting for the Islamist death cult and fighting for those who are doing their best to defend Iraq and the Kurdish areas from the death cult,” he said. “But nevertheless this is a very dangerous place and Australians shouldn’t go there.”

The federal Labor opposition hasn’t shown any sign of dissent, supporting the passage of the Foreign Fighters bill through both houses of parliament, and continuing to back the new laws – even when they threatened to envelop one of their own in former Northern Territory Labor president Matthew Gardiner, 44, who was questioned by police on return from the Middle East in April, where it is suspected he assisted Kurdish groups fighting Daesh. 

Bleechmore would not comment on whether the former army combat engineer, who served in Somalia in the 1990s, was one of the veterans to whom he was offering legal advice, although he did express disappointment in the way Labor treated Gardiner. “Gardiner is in a vulnerable position, as are the other vets, so I don’t want to expose them to any further problems than they face already,” he said. 

Bleechmore conceded that the dangers cited by Abbott are very real, adding that he would not advise a person of a non-military background to consider joining the fight unless they had suitable medical skills.

“The only thing the government has done right on this issue is warn about the dangers, I agree with that,” he said.

“There’s limited medevac – if you’re shot, you won’t be moved or treated for some time effectively. It’s not like [what Australian military veterans] would be used to, and there’s other problems with language and armaments – ISIS is much better armed than the Kurds, even though we’re supposed to be arming the Kurds.”

But Bleechmore said that despite the risks, Australians have enlisted with non-state militias on numerous occasions throughout history, pointing not just to those who served in the French Resistance against the Nazis, but also to those who battled Franco.

“If we were to apply these laws to the 1936 International Brigades in Spain who fought the Fascist government, then all those foreigners, including all those famous thinkers and writers who became involved, are all criminals according to this legislation,” he said.

Of those writers to join the fight against Franco’s dictatorship, the most prominent was George Orwell. One wonders what he would have made of legislation that makes it a criminal offence to fight alongside the army your government is arming.