HENRY BOURNES HIGGINS KC 1851–1929¹

Henry Bournes Higgins was born on 30 June 1851 at Newtownards, Down, in Ireland. The second of six sons among the eight children of Wesleyan minister, the Reverend John Higgins and Anne, née Bournes, Henry grew up in a pious and frugal household. Boarding at the Wesleyan Connexional School, St Stephen's Green, in Dublin from age 10, he gained a basic classical education there. Leaving at 14, because of ill health, he studied for a short time at a local school at Newry before starting work. After doing menial jobs in a drapery warehouse in Belfast and a merchant tailor's shop at Clonmel, he was a clerk in a furniture warehouse in Dublin. The death of his older brother from consumption in 1869 firmed his parents' resolve to migrate to a healthier climate. With his family, Henry Higgins arrived in Melbourne on 12 February 1870.

Subsequently matriculating and attaining a teaching certificate, Higgins worked as a teacher and private tutor to support himself while studying at the University of Melbourne. During his four years there he excelled in languages, logic, history and political economy. Several times exhibitioner and the recipient of various scholarships, he achieved first class honours and graduated with a Bachelor of Laws in 1874 and a Master of Laws in 1876. He began practising as a barrister in 1876, after his admission to the Victorian Bar. Having overcome a debilitating childhood stammer to be able to speak in court, he chose the equity jurisdiction where there would be no requirement for him to address juries. A founding member of a debating society, Higgins became a capable though somewhat formal public speaker, careful to avoid declamatory embellishment. Among his closest friends was one who would become renowned for his brilliant oratory, Alfred Deakin. Higgins also took up a lifelong regime of strenuous exercise – walking, riding and swimming to maintain his health.

Prospering in his career, Higgins built a mansion, 'Doona', at Malvern and sponsored his younger siblings' education and entry into various professions. His sister Anna was among the first women admitted to the University of Melbourne where, as a member of Council for more than three decades Higgins supported equal access to privileges for female graduates. He was generous in personally funding scholarships, particularly for students of poetry and literature. On 19 December 1885 he and Mary Alice Morrison were married at Geelong College (where the bride's father was principal), afterwards proceeding on a world tour. Their only child, Mervyn Bournes, was born in 1887, the year that Higgins succeeded Thomas à Beckett as leader of the equity Bar.

Becoming prominent in public affairs, and notably outspoken on British policy in Ireland, Higgins stood unsuccessfully for the seat of Geelong in 1892. He was elected to it two years later and was a member of the Legislative Assembly until the end of the century. In the government led by Sir George Turner, Higgins supported progressive philosophies such as votes for women, greater protection for workers and a more positive role for government in managing the economy. In 1897-99 he was chairman of a royal commission on legal procedure.

Elected as a Victorian delegate to the Australasian Federal Convention held in Adelaide, Sydney and Melbourne in 1897 and 1898, Higgins was involved in framing the Australian Constitution. Supporting the creation of Commonwealth power over industrial relations and constitutional protection of personal rights, he carried the amendment which became section 116 of the Constitution, guaranteeing freedom of religion. One of the few delegates who argued against equal representation of the States in the Senate, Higgins believed that federation was unification for certain defined purposes and argued for flexibility in the Constitution, with a practicable means of amendment. Believing the proposed Constitution to be too rigid and repressive generally, and declaring presciently that its provisions made it 'practically impossible ever to adopt a referendum' he was ultimately one of only two convention delegates to oppose the final version of the bill. Controversy over this stance and about his opposition to Victoria's involvement in the South African (Boer) War in 1899, as well as his agitation against the government within the Legislative Assembly, led to his defeat in the elections held in 1900.

Regarded as increasingly radical in his views, Higgins was unopposed by the Australian Labor² Party when he stood as a Protectionist in the federal seat of North Melbourne in 1901. Taking his seat in the first Commonwealth parliament, he supported the Barton and Deakin governments on issues such as conciliation and arbitration and defence. A proponent of the White Australia policy, he also urged legal protection of Aboriginal interests. In what he termed a 'good-humoured crisis' in 1904, Higgins helped to bring down the Deakin government over an arbitration issue. Lacking a suitably qualified lawyer in its ranks, the incoming Watson Labor government invited Higgins to be Attorney-General. Accepting, Higgins kept a low profile during his term, which lasted only from 27 April to 17 August 1904 when the government resigned, again over difficulties with conciliation and arbitration legislation. The only person to have held office in a federal Labor government without being a member of the Party, Higgins was consistently sympathetic to Labor's cause, defending the Party's internal practices and cautioning it to protect its independence during a period of fluid alliances within the Commonwealth parliament. During his term as Attorney-General,³ Higgins contributed around 50 advices to the Opinion Book. Eleven of these, on a variety of topics, were selected for publication in Volume 1.

Made a King's Counsel (KC) in 1903 Higgins left politics for the High Court of Australia. He and then Attorney-General Isaac Isaacs were appointed on 12 and 13 October 1906 respectively, when the fledgling Court's bench was expanded from three to five judges. Isaacs and Higgins were two of only eight judges ever appointed to the Court after serving in the Commonwealth Parliament, and the only two to have served in the Parliament of Victoria. In 1907 Higgins was also appointed as the second President of the Commonwealth Court of Conciliation and Arbitration. His 1908 judgement in the Harvester case⁴, where he ruled that a large-scale manufacturer of agricultural machinery was required by federal law to pay his workers a wage that would guarantee them a reasonable standard of living, was the genesis of the 'basic wage' in Australia. Independent and intellectually courageous, and unforgiving of militant union activity which flouted his rulings, Higgins was generally deemed to be fair-minded in his decisions.

His relationship with Prime Minister Billy Hughes was troubled. Believing that Hughes was undermining the arbitration system – first under cover of War Precautions legislation in the tumultuous employment situation during the First World War, and then by the creation of special tribunals to deal with certain industrial matters – Higgins resigned as President of the arbitration court in 1920. In 1922 he published a defence of his views and record on arbitration, A New Province for Law and Order. He continued to sit on the High Court for the rest of his life, and was party to the 1920 Engineers' decision⁵ which marked a new, broader interpretation of Commonwealth power.

Higgins died at age 77, at Dromana, Victoria on 13 January 1929. Survived by his wife, he was buried with Anglican rites in Dromana Cemetery, under the Celtic cross which he had built in memory of his son. Mervyn, who had survived service with the Australian Imperial Force in Gallipoli only to be killed at Magdhaba, Egypt in 1916, was also commemorated by the Mervyn Bournes Higgins scholarship in Arts, founded by his father at the University of Melbourne. The federal electorate of Higgins in Victoria, and the suburb of Higgins in the Australian Capital Territory were named in honour of Henry Higgins, as were the HB Higgins Chambers, founded by radical industrial lawyers, in Sydney.

1. Biography written by Carmel Meiklejohn with reference to:
   • John Rickard, 'Higgins, Henry Bournes (1851–1929)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/higgins-henry-bournes-6662/text11483, accessed 24 May 2012.
   • 'Higgins, Henry Bournes (1851–1929)', Obituaries Australia, National Centre of Biography, Australian National University, http://oa.anu.edu.au/obituary/higgins-henry-bournes-6662/text25227, accessed 24 May 2012.
   • Tony Blackshield, Michael Coper and George Williams (editors), The Oxford Companion to the High Court of Australia, Oxford University Press, South Melbourne, 2001.
   • Parliamentary Library, Department of Parliamentary Services, 43rd Parliament: Parliamentary Handbook of the Commonwealth of Australia, Canberra, 2011.
2. In the early days, the ALP was referred to as both 'Labor' and 'Labour'. In the report of the party's federal conference in 1902 it was spelled 'Labor', in 1905 and 1908 'Labour', and from 1912 'Labor'. http://www.alp.org.au/australian-labor/labor-history/ accessed 2 December 2012.
3. His first entry in the Opinion Book was signed on 5 April, 1904, just before he was appointed Attorney-General.
4. Ex parte HV McKay (1907) 2 CAR 1.
5. Amalgamated Society of Engineersv Adelaide Steamship Co Ltd (1920) 28 CLR 129.