Gageler
J
19.
and a Divisional Returning Officer, each of whom was required to act with
respect to the performance of the functions conferred on them by the Electoral
Act subject to the directions of the Electoral Commissioner48, who was both a
member of the Commission49 and its chief executive officer50. The exclusion by
s 7(1)(a)(i) from the functions of the Commission to which s 7(1)(a) referred of
functions that "a specified person or body, or the holder of a specified office, is
expressly permitted or required to perform" was inapplicable to them. The
exclusion was properly read in context as an exclusion only of functions
conferred by or under the Electoral Act on functionaries who were permitted or
required to perform those functions independently of the Electoral
Commissioner.
63
The functions conferred by s 274(2A), (2B) and (2C) which generated the
Indicative TCP Count having thus been functions of the Commission under
s 7(1)(a), the Commission had power under s 7(3) to "do all things necessary or
convenient to be done for or in connection with the performance of [those]
functions". Publication of the TCP Information being necessary to give efficacy
to the Indicative TCP Count, it followed that publication of the TCP Information
met the description in s 7(3) of a thing necessary to be done by the Commission
in connection with the performance of those functions. The power expressly
conferred on the Commission by s 7(3) was in that way applicable to authorise
the Commission to publish the TCP Information irrespective of whether the
publication of the TCP Information could be characterised as falling within either
or both of the additional functions of the Commission referred to in s 7(1)(c) or
s 7(1)(f), namely to promote public awareness of election matters and to publish
material relating to the Commission's functions.
64
Save that the efficacy of the Indicative TCP Count for a Division required
publication of the TCP Information to occur during the period between the close
of polling in the Division and completion of the scrutiny for the Division, the
efficacy of the Indicative TCP Count did not dictate the precise timing of the
earliest publication of the TCP Information. That does not mean, however, that
the timing of the earliest publication of the TCP Information within that period
was committed to the unconstrained discretion of the Commission.
48
Sections 20, 32 and 33 of the Electoral Act.
49
Section 6(2)(b) of the Electoral Act.
50
Section 18(2) of the Electoral Act.
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