Enlistment, statutory exemptions and the serving volunteer | Article 1 of 2
By Rod Benson
Australian law accepts that deeply held conscience may justify exemption from compulsory military service. Yet a member who volunteers for the Australian Defence Force (ADF) and later becomes a conscientious objector occupies a different legal position. The question is whether institutional commitments can be honoured while a genuine change of moral conviction receives fair consideration.
1. The oath is a legal undertaking, not a waiver of thought
The enlistment oath and affirmation prescribed by Schedule 1 of the Defence Regulations 2026 require a member to resist the sovereign’s enemies and faithfully discharge duties “according to law”. Allegiance is to the Crown in its Australian constitutional setting, rather than to the personal wishes of the monarch. The qualification “according to law” matters, but it does not itself create a general conscientious-objection exemption. Nor does the oath imply that belief and moral judgment are fixed forever. The legal force of the undertaking lies in the service relationship established by legislation and applicable conditions, not in an independently enforceable promise to surrender conscience.
This raises at least three ethical questions. Is a particular military order lawful? May a person morally participate in war, or in this war? And does a person have a legal entitlement to exemption, reassignment or release? A command may be lawful even though its recipient believes participation to be wrong; equally, refusing an order to commit a war crime concerns legal obedience, not merely conscientious objection. Clear analysis begins by preserving these categories.
2. Conscientious objection in the wartime call-up scheme
Part IV of the Defence Act 1903 addresses liability to serve in time of war. Section 59 defines a category of persons potentially liable; section 60 requires a Governor-General’s proclamation and approval by both Houses of Parliament before a call-up takes effect. These are contingency provisions, not evidence of a current general conscription program. Section 61A(1)(h) exempts persons whose conscientious beliefs prohibit participation in war or warlike operations; paragraph (i) extends that exemption to objections to a particular war or operation. The distinction makes room for general pacifists and selective objectors alike.
Section 61A(1A) protects a narrower position: someone who rejects combatant duties, whether universally or in a particular conflict, may remain liable for service but be exempt from such duties while the qualifying belief continues. The statute thus distinguishes military service from combatant participation, but it does not promise a personally selected posting. Section 4(3) defines a conscientious belief for Part IV as a fundamental moral conviction, religious or otherwise, sufficiently compelling that its holder feels duty-bound to espouse it and likely to be long-standing. Sincerity and seriousness are central; membership in a religious denomination is not a condition.
Under section 61CA, a person called upon under section 60 must apply in writing to the Secretary within seven days for determination by a Conscientious Objection Tribunal. The Act provides for subsequent reconsideration when circumstances change. These procedural details should not be repurposed as instructions for serving volunteers: they govern the particular statutory call-up process. They also show that recognising conscience need not entail accepting an unsupported declaration without examination.
3. Why existing service members are treated differently
Section 61C(c) expressly excludes an existing Defence Force member from Part IV. Accordingly, a soldier who adopts pacifism after enlistment cannot invoke the call-up exemptions in section 61A as an automatic discharge right. That asymmetry is legally decisive but ethically contestable: military employment is voluntary at entry, while serious religious or philosophical commitments can develop after years of service. To acknowledge that possibility is not to deny the legitimate claims of readiness, training investment or operational reliability.
The Defence Regulations 2026 furnish general administrative possibilities, though not a free-standing conscientious-objector entitlement. Under section 17 the Chief of the Defence Force may change a member’s period of service on application or agreement, including reducing it. Section 23 authorises early termination on specified grounds, among them that retention is not in Defence’s interests; it is a discretionary power, not a member’s right to compel release. Section 18 may extend service during war or defence emergency. Section 20 also requires attention to whether a former Permanent Force member becomes a reservist, and section 25 can engage service-obligation debts where minimum or return-of-service commitments are shortened; waiver is possible under subsection 25(8). These consequences make unqualified assurances of easy separation unsound.
A member adversely affected by a relevant decision or omission may consider Part 8’s redress-of-grievance arrangements. Sections 50–51 prescribe the nature, form and timing of complaints, including generally 21 days for complaints relating to an end-of-service decision and six months for other complaints, subject to specified extensions. This is a review mechanism for grievances, not proof that a conscientious-objection application must succeed. A serving applicant needs advice on the precise decision, available Defence policy, deadlines, any service debt and continued duties pending a decision.
4. The boundary between conscience and discipline
Under section 27 of the Defence Force Discipline Act 1982, disobedience of a lawful command from a superior officer is a service offence, carrying a maximum of two years’ imprisonment. Sections 23–24 deal with absence offences. Section 14 addresses acts or omissions in execution of law and obedience to lawful orders, including narrowly qualified reliance on an order whose unlawfulness could not reasonably be recognised. None of these provisions allows an objector simply to cease reporting for duty while an application is unresolved. A credible claim is therefore best advanced through lawful procedures, with independent legal advice sought before any decision to refuse assigned duties.
An order to torture a detainee, deliberately target civilians or kill a surrendering combatant is a different matter: the law of armed conflict forbids such conduct irrespective of an individual’s pacifist beliefs. The morality of a government’s choice to initiate an operation (jus ad bellum) must also be distinguished from the legal rules governing a soldier’s conduct within it (jus in bello). A soldier’s personal view that a war is unjust is morally serious but does not alone establish an entitlement under military law to refuse every otherwise lawful order connected to it.
5. Human rights illuminate, but do not erase, the gap
Article 18 of the International Covenant on Civil and Political Rights protects freedom of thought, conscience and religion. The UN Human Rights Committee observed in General Comment No 22, paragraph 11, that conscientious objection can be derived from Article 18 because a duty to use lethal force may profoundly conflict with belief. The UN’s published study examines the difficulties faced by volunteer service members who develop objections. Such international interpretations are relevant to Australian policy, but the Covenant does not, without domestic legal implementation, automatically cancel an ADF member’s statutory and disciplinary obligations.
The legitimate counterargument deserves equal weight. Defence cannot maintain a disciplined force if every service member may unilaterally suspend a deployment on receiving a disputed assignment. Yet the opposite extreme—treating voluntary enlistment as an irrevocable renunciation of conscience—ignores the possibility of genuine conversion or ethical reconsideration. A defensible legal settlement would distinguish accommodation and discharge requests from unauthorised absence, and would provide decision-makers with transparent criteria and timelines. The proposal requires explicit policy design, not merely an expansive reading of existing exemptions.
Conclusion
Current Australian law clearly protects qualifying conscientious objectors against a wartime call-up while withholding the same statutory route from serving ADF personnel. The latter must seek accommodation or release through other lawful mechanisms, with no presumption of immediate exemption. That answer is precise but incomplete: whether Defence should establish a dedicated, reviewable process for subsequently acquired conscientious objection is a question of institutional justice as well as military effectiveness.
Rev Dr Rod Benson lives in Sydney and writes about a range of topics from books and local history to food, faith, philosophy, ethics, research skills, and everyday life. Away from the keyboard, he enjoys cooking for friends, walking in the Australian bush, exploring a beach, discovering new restaurants, and reading philosophy, fiction and poetry. He is married to Emma and is minister of North Rocks Community Church, a Uniting Church congregation.
The second article in this series asks what a fair procedure might require, and how Christian theology—particularly the Uniting Church’s commitment to reconciliation—can contribute without confusing pastoral advocacy with legal entitlement.
References
Australian Attorney-General’s Department, “Right to freedom of thought, conscience and religion or belief”. https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-freedom-thought-conscience-and-religion-or-belief
Australian Defence Force, ADF-P-0 Military Ethics, 1st ed. (2021). https://theforge.defence.gov.au/sites/default/files/2021-12/ADF-P-0%20Military%20Ethics%20Ed%201_0.pdf
Defence Act 1903 (Cth), Part IV, especially ss 4(3), 59–61A, 61C, 61CA–61CP; compilation 29 September 2026. https://www.legislation.gov.au/C1903A00020/latest
Defence Force Discipline Act 1982 (Cth), ss 14, 23–24, 27; compilation 29 September 2026. https://www.legislation.gov.au/C2004A02711/latest
Defence Regulations 2026 (Cth), ss 2, 11, 17–18, 20, 23, 25, 48–60 and Schedule 1; commenced 1 October 2026. https://www.legislation.gov.au/F2026L01185/asmade
Office of the UN High Commissioner for Human Rights, Conscientious Objection to Military Service (2012), chapters on volunteers and conscientious objection. https://www.ohchr.org/Documents/Publications/ConscientiousObjection_en.pdf
UN Human Rights Committee, General Comment No 22: Article 18 (1993), para 11; OHCHR, Conscientious Objection to Military Service (2012). https://www.ohchr.org/Documents/Publications/ConscientiousObjection_en.pdf
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