The Honourable Justice Henry Bournes Higgins (1851–1929)

Updated time

Last updated

03 February 2017
Photo Justice Higgins
  • Commonwealth Court of Conciliation and Arbitration
  • Appointed President 14 September 1907
  • Reappointed President 18 September 1914
  • Resigned 29 June 1921

Henry Bournes Higgins was born on 30 June 1851 at Newtownards, County Down, Ireland. Attending St Stephen's Green School for four years, he left due to illness. He studied briefly at the Wesleyan Connexional School in Dublin, then worked for a draper and merchant tailor. He worked as a warehouse clerk until 1869 when the death of his brother from consumption was the catalyst for his family emigrating to Victoria, Australia.

In 1883 he bought land in Malvern to build his home `Doona', married Mary Alice Morrison in 1885 and in 1903 purchased `Heronswood' at Dromana.After arriving in Melbourne in 1870, Higgins worked his way through his school teaching certificate, matriculation and then a Bachelor of Laws and Masters of Laws by 1876. During this time he taught at various schools and undertook private tutoring to support his own education. He had a stammer from childhood and when he went to the Bar in 1876 `he chose equity because it would not require him to address juries'. Also at this time his experiences had altered his religious views from those reflecting his Wesleyan Minister father's to views verging on agnosticism. He became leader of the Equity Bar in 1887.

Higgins addressed a public rally for support for home rule in Ireland (an issue that always remained very important to him) in 1883, and again during 1887. He tried, unsuccessfully, to win the seat of Geelong in the state election of 1892. In 1894 he won the seat and over the next few years his interest in industrial relations was stimulated by his involvement in The Factories and Shops Act which introduced the concept of a minimum wage. In 1897 he was elected as one of Victoria's 10 delegates to the Australasian Federal Conventions of 1897-1898. His opinions did not always concur with the mainstream views of other delegates with his contributions to the debates resulting in the inclusion of the Conciliation and Arbitration Amendment and the section 116 Amendment which ensured `free exercise of any religion'. He opposed federation on the basis that the constitution was too rigid to work well and was one of only two delegates who voted against the constitution bill.

This action, along with his opposition to the Boer War in South Africa, made him less than popular with the electorate and fellow parliamentarians. Compounded by his assistance in the downfall of the Liberal Turner Government in 1899, he was defeated in the 1900 elections at Geelong. Higgins then turned to the federal arena, standing for the Labor Party, though not as a party member, in the seat for North Melbourne in the first federal election. He was victorious but in 1904 policy disagreements led to him playing a major role in bringing down the government over the application by State railway workers for inclusion within the ambit of the arbitration legislation which was then before Federal Parliament. He accepted the position of Attorney General in the new Watson Labor Government, which also only lasted a few months. He was appointed King's Counsel in 1903.

In October 1905 Higgins was appointed a Justice of the High Court of Australia and in September 1907 was appointed President of the Commonwealth Court of Conciliation and Arbitration. His first case as President was the `Harvester Case', where he was required to judge whether HV McKay Pty Ltd paid a `fair and reasonable wage' to its employees. In his judgment Higgins calculated a minimum unskilled wage based on the cost of a man supporting a family of five, an amount of seven shillings per day. The `New Protection' legislation the judgment was based on, the Excise Tariff Act of 1906, was later declared unconstitutional, but the Harvester decision principles continued to be applied to industrial cases by the court.

In 1914 he took leave of absence and travelled to England, where his experiences of the European war 'fever' influenced his attitude to conscription. Reappointed to the court in September 1914, the war years were difficult, influenced by issues of wage regulation, inflation, the conscription referendum and Prime Minister Hughes' abandonment of Labor to form his own Nationalist Party whilst remaining Prime Minister. Disagreements between the two men became increasingly public, as Higgins became convinced that Hughes' behaviour was undermining the arbitration system. In 1921 Higgins resigned as a protest against government legislation and in 1922 published A New Province for Law and Order putting his views on industrial relations formally on record.

Henry Bournes Higgins remained on the High Court bench until his death at `Heronswood', Dromana on 13 January 1929. He was survived by his wife.