The Plaintiff, John Setka, is the Victorian Secretary of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and was for a period of 12 years a member of the Victorian Branch of the Australia Labor Party (ALP). The National Executive of the ALP sought to consider a motion to expel Mr Setka under clause 16(d) of the ALP National Constitution without complying with the specific rules on expulsion under the Victorian Branch rules. The ALP National Constitution provided that the National Executive may exercise all powers of the Party on its behalf without limitation. Mr Setka sought a declaration that the National Executive did not have the power to expel him otherwise than in accordance with the Victorian Branch rules and further sought to restrain the members of the National Executive from considering a motion to expel him.

In his decision, Riordan J concluded that the controversy was non-justiciable, relying upon the High Court’s decision in Cameron v Hogan and declining to follow various recent first instance authorities. His Honour held that Cameron v Hogan required a member to establish a proprietary right or interest in order to obtain declaratory or injunctive relief, and his Honour concluded that that case could not be distinguished on the evidence before him. Riordan J went on to conclude that if he was wrong about the question of justiciability, then Mr Setka’s contention should be accepted that the National Executive could not exercise the power of expulsion without complying with the limitations and preconditions set out in the Victorian Branch rules.

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