Had the idealistic former Australian soldier, Caner Temel, not died while fighting in Syria, he would have run afoul of a little-known law that monopolises our government's use of force, writes Stephen Dawson.

It all depends on who you're fighting for.

One definition of "government" is the national institution with a legal monopoly on force. If I kill you, my action is illegitimate and I can be punished. If an agent of the government kills you in accordance with the rules set by the government, then there can be no punishment. That's unfortunate for you.

The Fraser Government went international with that. It passed the Crimes (Foreign Incursions And Recruitment) Act 1978, which outlawed Australian citizens and residents fighting on certain sides in foreign wars.

That would have been bad news for Caner Temel, the young idealistic former Australian soldier, had he not died in January while fighting in Syria. That was a foreign war in which he was fighting, and he was on the wrong side from the point of view of Australian law.

The right side under the law would have been "in any capacity in or with ... the armed forces of" the Syrian Government.

In short, the law criminalises an Australian fighting a foreign regime, but not an Australian working for a foreign regime in fighting others.

Were an Australian to sneak into North Korea and blow up a statue of Kim Jong-Un, he (or she, but to be fair it is more often he) would be subject to up to 20 years in prison if he manages to get back here. Yes, it's right there in paragraph 6(3)(d) of the Act: engaging in hostile activities includes "unlawfully destroying or damaging any real or personal property belonging to the government of the foreign state or of a part of the foreign state."

They also include injuring a public office holder of the foreign State (6(3)(c)). Or terrorising the population (6(3)(b)) or, you know, actually fighting the foreign State (6(3)(a) and (aa)).

Unless, of course, you are an Australian service person under orders, then you can go inflict all the mayhem the Australian Government wants on specified foreign officials and statues. Had Australian troops arrived in Baghdad first in 2003, they could have pulled down Saddam's statue without fear of this Act.

But had a group of Australian irregulars snuck into Iraq a week or two before and dynamited Saddam's statue, they could have faced a couple of decades in jail back home.

If, that is, the Attorney General of Australia were to authorise prosecution. This is another one of those many Acts where criminal prosecution is subject to the approval of the Attorney General. Read his or her mind correctly in advance and you can get away with it. Maybe.

Between 1936 and 1939 at least 66 idealistic Australians journeyed to Europe to join the tens of thousands of other foreigners participating in the Spanish Civil War. Ten of the Australians were women. At least three dozen were known to have served with the International Brigades, actually fighting on the Republican side.

As it happens, the Republican side was that of the government elected in 1936. Its opponents included factions that had been the previous government of 1935. And none of that matters under the Act. Had the Crimes (FIAR) Act been then in place, the "government" would have been "the authority exercising effective governmental control" over "the part of that foreign state" in which the action was happening (s.3). That war started with a messy, incomplete coup, so over the next three years "effective governmental control" was in an extreme state of flux over this area or that.

More recently, and in a time to which the law actually did apply, had an Australian fought with Robert Mugabe against the Rhodesian Government of Ian Smith at any point after April 14, 1978, when the law commenced, his actions would have been quite illegal. But had an Australian joined the Mugabe administration in 1983 to join its brutal military action against its Ndebele opponents, all would have been fine.

Arguably the Australian Government has an interest in avoiding the embarrassment of large numbers of Australians joining a conflict in which it is neutral, or even inclined towards one side or another, without wishing active involvement. But in practice this law attempts to extend the monopoly on force, as it applies to Australians, throughout the world.

You can fight for the Australian Government. You can fight for a foreign government. But you can't fight against a foreign government. No matter how disgusting it may be. No matter how much you feel a call from your moral sensibilities or from your God to put your life on the line for what you believe to be the good.

Indeed, although it has been out of fashion these past four decades, the Australian Government could legislate in order to conscript you to fight against those with whom you are in sympathy.

I referred earlier to Caner Temel as idealistic. That is an assumption. But I think it a fair one. He apparently chose to risk his life - actually in the sense of facing bullets - in pursuit of what he saw as his allegiance to his God. The risk turned into reality.

I think he was very wrong indeed, and I certainly don't follow his God. But should the Australian Government deny such people the legal right to put their lives on the line for what they perceive to be right?

Stephen Dawson is a freelance writer from Canberra. View his full profile here.