John Setka,with his wife Emma Walters,fought his expulsion from the Labor Party through the courts.

John Setka,with his wife Emma Walters,fought his expulsion from the Labor Party through the courts.Credit:Jason South

But Justice Riordan also offered the view that if Mr Setka was to be expelled it was the job of the Victorian ALP's disputes tribunal,not the party's national executive. Labor leader Anthony Albanese had wanted the national executive to expel Mr Setka.

The news is mixed for Mr Setka and ALP leader Anthony Albanese,and creates more uncertainty and potential delays in his expulsion.

Mr Albanese said on Tuesday he would take the issue of Mr Setka's ALP membership back to the party's national executive.

"I do so not because of any tactic or strategy,I do it not because it's easy;I do it because it's the right thing to do,"he said."The Australian Labor Party takes issues of domestic violence very seriously."

"I just find it extraordinary that there would be anybody in the Labor party who thinks (Setka's behaviour) it's okay ... Mr Setka has been convicted of two very serious offences."

"In many ways I find that shocking and most Australians would find it shocking."

Mr Albanese has the support of the party's national executive to expel Mr Setka,the Victorian construction secretary of the CFMMEU.

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But Mr Setka's strongest support comes from the Victorian branch of the party.

The Victorian branch of Labor deals with the expulsion of members through a disputes tribunal. It is understood any decision it makes on whether to expel Mr Setka could be appealed to the national party.

And the court case may not be over yet,with Justice Riordan previously flagging that the dispute appeared destined for the High Court.

Mr Albanese pushed for the expulsion of Mr Setka in mid June afterThe Age andThe Sydney Morning Herald revealed details of Mr Setka’s harassment of his wife Emma Walters and other comments he made at a closed-door meeting.

Lawyers for Mr Setka had argued in the Supreme Court that Labor’s national executive did not have the power to expel him and that power resides with the party's Victorian branch. Justice Riordan said it was"not within the court's jurisdiction"to decide that.

But he said if it was within his power to rule on that issue"a reading of the national (Labor) constitution and the various rules of the state branches is consistent with an intention that expulsion should be carried out by the state branches".

Mr Albanese had wanted Mr Setka expelled at a July 5 meeting of the ALP national executive but the court action has delayed that by nearly two months already.

Premier Daniel Andrews reiterated his support for Mr Albanese’s previous statements.

"There could be an appeal to that decision so I’m loathe to offer a commentary beyond simply saying they are party matters,"he said.

Mr Andrews said it was"entirely a matter"for union members as to who led the Victorian CFMMEU.

The CFMMEU leader has been the subject of ongoing controversy for months.

The Age revealed in early June how Mr Setka,in a closed-door meeting,made comments about how the work of anti-domestic violence campaigner Rosie Batty had led to men having fewer rights. The report - some of which was disputed by Mr Setka - led to a political and media storm.

In late June Mr Setka was convicted and fined as magistrate Belinda Wallington condemned his"nasty behaviour"and lack of contrition for his harassment of Ms Walters.

As part of that case,police analysis of Mr Setka's phone activity revealed on a single evening last October he called Ms Walters 25 times and sent her 45 text messages.

with BENJAMIN PREISS

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