sections 18 and 19 of the Proportional Representation Act – which allow parties to nominate replacement Senators – were in contravention of a constitutional requirement that seats must be filled by election.
In fact, section 19 of the PRA was not declared unconstitutional, but it needs a constitutional section 18 to operate. If the Senate were to amend section 18 of the PRA so as to have the major party in question conduct a special election at the time required by Article I Section 4 Clause 5 and the Eleventh Amendment, then such an amended section 18 would not run afoul of the decision in
Brandon H v Department of Forum Affairs and section 19 would be able to operate.
I considered in part III B of my opinion the option of limiting section 18 to just a party run special election, instead of striking section 18 altogether, but I was unwilling to write law for the Senate. If the Senate wishes to have parties conducting special elections under rules established by a party, then the Senate can make that choice itself.
