Gageler
J
18.
57
GAGELER J.
My reasons for having joined in the orders dismissing the
application conformed in substantial measure to those now expressed by the
other members of the Court. Adopting their abbreviations, I add a short
explanation of my specific reasons for rejecting the plaintiffs' statutory argument.
58
The plaintiffs' statutory argument was that publication of the TCP
Information for Divisions in States and Territories in Eastern Australia after close
of polling there but before close of polling two hours later in Divisions in
Western Australia (or even before close of polling up to an hour and a half after
that in the Division which encompassed Christmas Island and the Cocos
(Keeling) Islands) was beyond the power conferred on the Commission by s 7(3)
of the Electoral Act.
59
The argument involved a number of legal propositions which I thought
and still think to have been sound. The first was that the power of the
Commission to publish the TCP Information was to be found, if at all, in the
power conferred on the Commission by s 7(3) of the Electoral Act. The second
was that, although s 7(3) left the Commission with a choice as to the precise
timing of publication, publication at a time chosen by the Commission would not
be within power if publication at the chosen time failed to meet the objective
description in s 7(3) of something "necessary or convenient to be done for or in
connection with the performance of its functions". The third was that publication
at the time chosen by the Commission would fail to meet that description if
publication at that time were found to favour, or to create the appearance of
favouring, one candidate or political party over another.
60
The purpose of the Indicative TCP Count for which provision was made in
s 274(2A), (2B) and (2C) of the Electoral Act was to provide an early indication
of the likely result of an election. Achieving that purpose depended on the
resultant TCP Information being published before the actual result of the election
became known in accordance with the scrutiny for which provision was made in
other sub-sections of s 274. That necessity for publication in order to render the
Indicative TCP Count efficacious did not indicate that the power to publish the
TCP Information was implicit in s 274(2A), (2B) and (2C). There was no need
for the power of the Commission to publish the TCP Information to be found by
implication in s 274(2A), (2B) and (2C) if that power was expressly conferred on
the Commission by another provision of the Electoral Act.
61
The route to the power expressly conferred on the Commission by s 7(3)
of the Electoral Act was through the functions of the Commission referred to in
s 7(1).
62
The functions of the Commission to which s 7(1)(a) of the Electoral Act
referred as "functions that are permitted or required to be performed by or under
this Act" included the functions conferred by s 274(2A), (2B) and (2C)
respectively on an Australian Electoral Officer, an Assistant Returning Officer
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