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Word Count: 1,508
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 judges 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 for or on behalf of the government or a government authority of the Commonwealth The holders of broadcasting licenses under The Act
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