Establishment of the NSW Supreme Court and Press Freedom

  • This case method resource explores Chief Justice Francis Forbes’ decision on allowing a free press in early NSW. It includes summaries, primary sources, and discussions examining tensions with Governor Darling. It highlights how an independent judiciary and free press act as checks on power, reinforcing rule of law and protecting rights in society.

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  • These discussion questions guide students to evaluate early NSW governance, Governor Darling’s leadership, and the challenges of managing a penal colony. They explore reforms, the rule of law, and separation of powers, while examining tensions between Darling and Forbes, press freedom, and how checks and balances protect rights and limit government power.

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  • This activity sheet is to be used in conjunction with the Checks and Balances storybook to assist students understand the story and events that led to the establishment of the NSW Supreme Court and the fight for press freedom in the early colony

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  • Timeline Worksheet. Using the details from the Checks and Balances Book or their own research, students can complete this timeline of events.

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Case Based Method: Establishment of the NSW Supreme Court and Press Freedom

Overview

Case Method: Francis Forbes and the Establishment of the NSW Supreme Court. Checks and Balances of a Free Press and Independent Judiciary

“If you were Chief Justice Forbes in the early colony of NSW that was filled with convicts, would you allow a free press?”

The below resources help teachers use the Case Method to look at a historical dilemmas from the past to develop an understanding of current civic concepts. For more details about the Case Method, click here to go to the end of the document. These resources, all have printable PDF’s and include:

Case Summary: The Story lets history unfold in the present

Case Exhibits: Primary Source documents that provide students with an insight into the information available to decision-makers at the time and are read prior to class

Exhibit 1: Source Documents on Governor Ralph Darling and Chief Justice Forbes

Exhibit 2: Source Documents on Freedom of the Press

Exhibit 3: Source Documents on the Sudds and Thompson incident

Discussion questions: That the teacher can use to prompt class discussion

The Outcome

The Case Method

The “Case Method”, originally developed by Harvard Business School (and later adapted by Professor David Moss for use in the high-school history classroom), is an innovative teaching approach that utilises decision-forcing cases to immerse students in real historical dilemmas from the past. The approach fosters critical thinking and facilitates student engagement in civil debate. It further provides historical distance – enabling students to safely practice political conversation without politicising the classroom.

By consulting pertinent primary source readings, students formulate their own opinions about the past, then actively contribute to in-class discussions guided by teacher questions. Primary sources mirror the information available to decision-makers at the time, encouraging empathy and a deeper appreciation of historical complexities.

The cases are taught in the present tense, wherein the story progressively unfolds, and students deepen their knowledge through set-readings. By placing students in decision-making roles and withholding actual outcomes, the “Case Method” engages problem-solving skills as students work through complicated historical problems and process contending points of view. Students engage in civil discussion with their classmates to develop a collective solution.

The active participation of students in class discussion further makes the content memorable, and as such, students will be able to draw connections between in-class content and modern-day legal issues that they face now and in future.

How is it done?

  • Firstly, access a case (for example, the founding of the NSW Supreme Court or the Kables Case: The First Civil Case in NSW). This case can form the basis of class discussion, for example, for three lessons.

  • Students are provided with primary source documents / ‘Exhibits’ (readings of around 4-5 pages) in advance. Students complete the reading before class and come prepared to discuss the case in depth during class.

  • Class time is then used as discussion – where students have an opportunity to think critically, problem-solve and constructively build upon or disagree with their classmate’s comments.

  • In the first lesson on a new case, teachers set the scene for the class by orientating students to the historical context, key issues and personalities. This is done in the present tense, for example, “Imagine: You are Chief Justice Forbes…” and the story is to gradually unfold.

  • Students then locate evidence by referring to the source document (known as an ‘Exhibit’) they read prior to class. This will contain pertinent information, quotes and statistics etc. Exhibits reflects the information available to decision-makers at the time, allowing students to consider what they would have done if they were key figures from the past – like Governor Darling.

  • Throughout, the teacher prompts discussion with questions, for example, “What was the management of the New South Wales’ British colony like before Governor Darling arrived? Do you think it was being managed effectively?”

  • As the class discusses, the teacher notes student input up on the board – i.e potential solutions to the issues Governor Darling faced when he arrived to the New South Wales’ colony.

  • Importantly, each case builds to a particular decision point – for example, “Should we have a separation of powers in Australia?” – without revealing what decision was actually made. This allows students to think critically and refine their opinions as the story unfolds.

  • At the very end, the teacher reveals the outcome – what actually occurred and why.

Documents Needed

  • Cases (based on history) without a stated outcome, which let the story unfold/teach history in the present. (And a separate document with the outcome, for the teacher to reveal this at the end: reveals what actually occurred and why).

  • I.e. “Imagine: You just fought in the American Revolution” – can use a narrative voice that directly imbeds students into the class (character, narrative, tension: tell it as a story —> adds urgency).

  • Contextual orientation – for teachers to set the scene for the class.

  • Primary source documents (can be longer: 4-5 pages up to 9) for students to engage with that provide an insight into the information available to decision-makers at the time. These will be hand-outs that students read prior to class. Label as ‘Exhibits’ i.e. ‘Exhibit 4’ (ideally, they reveal a specific facet of the topic – i.e. newspaper articles or case summaries).

  • Worksheets, assignment questions and teaching plans.

  • Teachers record information on whiteboards.

  • Discussion questions (that the teacher can use to prompt class discussion)

Related Resources

  • Francis Forbes (1784–1841) was the first Chief Justice of NSW, playing a key role in shaping the colony’s legal system. He upheld the rule of law, checked the Governor’s power, and supported press freedom. Known for independence and integrity, Forbes helped protect citizens’ rights and advance democratic principles in early Australia.

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  • This case method resource explores Chief Justice Francis Forbes’ decision on allowing a free press in early NSW. It includes summaries, primary sources, and discussions examining tensions with Governor Darling. It highlights how an independent judiciary and free press act as checks on power, reinforcing rule of law and protecting rights in society.

    LEARN MORE

  • These discussion questions guide students to evaluate early NSW governance, Governor Darling’s leadership, and the challenges of managing a penal colony. They explore reforms, the rule of law, and separation of powers, while examining tensions between Darling and Forbes, press freedom, and how checks and balances protect rights and limit government power.

    LEARN MORE

Explore Related Topics

  • Independent and Impartial Judiciary

    Explore resources on an open, independent and impartial judiciary and its role in delivering fair justice.

  • Freedom of Speech

    Explore resources on freedom of speech in Australia, outlining how it supports democratic debate, accountability, the protection of individual rights, and a rule-of-law culture.

  • First Civil Case in NSW: The Lost Parcel

    On the First Fleet, a lost parcel sparked Australia’s first civil lawsuit. In Cable v Sinclair (1788), convicts Henry and Susannah Kable successfully sued a powerful ship’s captain.