When a judgment is made in Australian law, it is apparent that there can often be differing approaches taken when attempting to reach this judgment. There are two common views which are frequently taken in this situation, that of the activist reasoning, and that of the positivist reasoning. Each of these has the potential to introduce judge-made bias, and commonly arises from the judge's background or social origin. When considering a case, it is often possible to determine which approach the judge took in reaching the judgment, by taking into account the method of reasoning and authority the judge utilized. In the case of Australian Capital Television Pty Ltd v Commonwealth (1992) (the Australian Capital Television case), Chief Justice Mason and Justice Dawson administer two examples of judicial reasoning, and each will be analyzed and critiqued throughout this essay.
In order to successfully analyze the opposing judicial approaches, it is necessary to first define each.
A judge who takes the view of positivist reasoning commonly favours logic and ethics. The judge will generally allow "consideration to actual practice over what is ideal." In simple terms, positivist judges will run by the letter of the law, with no contemplation of what may be more suitable. Activist judges on the other hand, will give the situation careful consideration and will attempt to reach a judgment in which the best interests of the parties are taken to heart. This may involve making an alteration to the law, or initiating per incuriam.
The Australian Capital Television case was with regard to Pt IIID of the Broadcasting Act 1942 (Cth) (The Act) which was associated with Commonwealth parliamentary elections, and the broadcasting of material in relation to this. The Act:
prohibited a broadcaster from broadcasting any matter, other than "exempt matter", during an election period...