Can Labor actually expel John Setka?

John Setka is the headache that just won’t go away for Labor. The ongoing saga surrounding the Victorian Secretary of the Construction, Forestry, Mining and Energy Union, triggered by Setka’s alleged disparaging remarks about Rosie Batty has given a newly-elected Morrison government impetus to attempt de-registration of the union.

He has many internal enemies too. Labor leader Anthony Albanese wants Setka gone but the long-time union boss has vowed to fight any attempt to expel him from the ALP in court. That process could be long and cumbersome, with potential to deepen schisms in Labor and union circles. So what happens next?

Can Setka be expelled?

Last week, Albanese suggested that Labor’s national executive could easily get rid of Setka.

“The precedent’s there. The rules are very clear,” Albanese said.

But the situation is not quite as clear as Albanese suggests. According to Graeme Orr, a law professor at the University of Queensland, the national executive would make their decision by applying the rules of the Victorian branch.

The Victorian rules contain provisions for revoking membership, when a member has been found guilty of an offence punishable by over five years in prison. Setka recently plead guilty to two charges — using a carriage service to harass a woman, and persistently breaching court orders. The harassment charge carries with it a three year sentence, so whether the criminal charges provide grounds for expulsion depends on the nature of the orders breached, and whether the executive would consider the cumulative sentence for both these offences. Setka faces court this week.

But Setka’s comments on Batty alone might not trigger expulsion. “Bringing the party into disrepute”, which is Albanese’s justification for removing Setka, is not a specified ground for removal in the Victorian rules’ list of disciplinary offences. On the other hand, disloyalty and publicly attacking the party or a member constitute offences. Orr suggests Setka might have “skewered himself” by launching attacks on Albanese and the party in recent weeks, since these might be stronger grounds for expulsion.

In any event, the Setka affair is an unusual one, in that it doesn’t quite fit within the current rules, and differs from recent documented expulsion cases.

In 2014, after the ICAC made findings of corrupt conduct, the ALP imposed life bans against some of the party’s senior NSW factional powerbrokers, including Eddie Obeid, Ian Macdonald and Joe Tripodi.

Ron Egeberg, a “prominent Ballarat identity” was expelled for directing preferences to the Liberals during local council elections in 2016.

Can he challenge it?

The question of whether courts can review internal decisions of a political matter is an old and vexed one. In a 1934 case concerning attempts to expel former Victorian Labor premier Edmund Hogan, the High Court held that internal decisions of political parties could not be reviewed because they were self-organising, voluntary associations.

By the 1980s and 1990s, courts had “had a change of heart”, according to Orr.

“State Supreme Courts have found a new way of understanding this. Political parties are quasi-public agencies — they’re registered under the law, they receive public funding,” Orr told Crikey.

When rules look like they’re meant to be contractually binding, the courts will enforce them. In this case, Setka may go to the Victorian Supreme Court, and get an injunction stopping the national executive from making a decision, or making them do something else. Importantly, the process isn’t strictly an appeal of the national executive’s decision. Instead, the courts may review any action taken against Setka, to see if the party acted “like a fair umpire,” Orr says.

While the Victorian rules state that they are not enforceable in law, and cannot be the subject of legal proceedings, Orr says the courts tend to overlook such clauses.

“It’s like if you had an agreement with the bank, and have a clause saying the courts can’t enforce it.”