Henry Bournes Higgins KC (30 June 1851 – 13 January 1929) was an Australian lawyer, politician, and judge. He served on the High Court of Australia from 1906 until his death in 1929, after briefly serving as Attorney-General of Australia in 1904. Higgins was born in what is now

Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...

. He and his family emigrated to Australia when he was 18, and he found work as a schoolteacher while studying law part-time at the

University of Melbourne The University of Melbourne is a public research university located in Melbourne, Australia. Founded in 1853, it is Australia's second oldest university and the oldest in Victoria. Its main campus is located in Parkville, an inner suburb no ...

. He was admitted to the

Victorian Bar The Victorian Bar is the bar association of the Australian State of Victoria. The current President of the Bar is Roisin Annesley KC. Its members are barristers registered to practice in Victoria. On 30 June 2020, there were 2,179 counsels ...

in 1876, and built up a substantial practice specialising in

equity law Equity is a particular body of law that was developed in the English Court of Chancery. Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a cas ...

. Higgins came to public attention as a prominent supporter of

Irish Home Rule The Irish Home Rule movement was a movement that campaigned for self-government (or "home rule") for Ireland within the United Kingdom of Great Britain and Ireland. It was the dominant political movement of Irish nationalism from 1870 to the e ...

. He was elected to the

Victorian Legislative Assembly The Victorian Legislative Assembly is the lower house of the bicameral Parliament of Victoria in Australia; the upper house being the Victorian Legislative Council. Both houses sit at Parliament House in Spring Street, Melbourne. The presidin ...

in 1894, and represented Victoria at the

Australasian Federal Convention In Australian history, the term Constitutional Convention refers to four distinct gatherings. 1891 convention The 1891 Constitutional Convention was held in Sydney in March 1891 to consider a draft Frame of Government for the proposed federatio ...

, where he helped draft the new federal constitution. He nonetheless opposed the final draft, making him one of only two delegates to the convention to campaign against federation. In 1901, Higgins was elected to the new

federal parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-gen ...

as a member of the Protectionist Party. He was sympathetic to the

labour movement The labour movement or labor movement consists of two main wings: the trade union movement (British English) or labor union movement (American English) on the one hand, and the political labour movement on the other. * The trade union movement ...

, and in 1904 briefly served as Attorney-General in the Labor Party minority government led by Chris Watson. In 1906, Prime Minister Alfred Deakin decided to expand the High Court bench from three to five members, nominating Higgins and

Isaac Isaacs Sir Isaac Alfred Isaacs (6 August 1855 – 11 February 1948) was an Australian lawyer, politician, and judge who served as the ninth Governor-General of Australia, in office from 1931 to 1936. He had previously served on the High Court of Au ...

to the court. Higgins was usually in the minority in his early years on the court, but in later years the composition of the court changed and he was more often in the majority. He also served as president of the

Commonwealth Court of Conciliation and Arbitration The Commonwealth Court of Conciliation and Arbitration was an Australian court that operated from 1904 to 1956 with jurisdiction to hear and arbitrate interstate industrial disputes, and to make awards. It also had the judicial functions of i ...

from 1907 to 1921. In that capacity, he wrote the decision in the influential ''

Harvester case ''Ex parte H.V. McKay'',''Ex parte H.V. McKay'(1907) 2 CAR 1 commonly referred to as the ''Harvester case'', is a landmark Australian labour law decision of the Commonwealth Court of Conciliation and Arbitration. The case arose under the ''Exci ...

'', holding that a legislative provision for a "fair and reasonable" wage effectively required a

living wage A living wage is defined as the minimum income necessary for a worker to meet their basic needs. This is not the same as a subsistence wage, which refers to a biological minimum, or a solidarity wage, which refers to a minimum wage tracking lab ...

Early life and education

He was born in Newtownards, County Down,

Ireland Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...

, the son of The Rev. John Higgins, a

Methodist Methodism, also called the Methodist movement, is a group of historically related denominations of Protestant Christianity whose origins, doctrine and practice derive from the life and teachings of John Wesley. George Whitefield and John's ...

minister, and Anne Bournes, daughter of Henry Bournes of

Crossmolina Crossmolina is a town in the Barony of Tyrawley in County Mayo, Ireland, as well as the name of the parish in which Crossmolina is situated. The town sits on the River Deel near the northern shore of Lough Conn. Crossmolina is about west o ...

. Ina Higgins, an early feminist, was his sister and

Nettie Palmer Janet Gertrude "Nettie" Palmer (née Higgins) (18 August 1885 – 19 October 1964) was an Australian poet, essayist and Australia's leading literary critic of her day. She corresponded with women writers and collated the Centenary Gift Book which ...

, poet, essayist and literary critic, was a niece. The Rev. Higgins and his family emigrated to Australia in 1870. H. B. Higgins was educated at Wesley College in central

Dublin Dublin (; , or ) is the capital and largest city of Ireland. On a bay at the mouth of the River Liffey, it is in the province of Leinster, bordered on the south by the Dublin Mountains, a part of the Wicklow Mountains range. At the 2016 c ...

, Ireland, and at the

, where he graduated in law. He practised at the Melbourne bar from 1876, eventually becoming one of the city's leading barristers (a KC in 1903) and a wealthy man. He was active in liberal, radical, and

Irish nationalist Irish nationalism is a nationalist political movement which, in its broadest sense, asserts that the people of Ireland should govern Ireland as a sovereign state. Since the mid-19th century, Irish nationalism has largely taken the form of c ...

politics, as well as in many civic organisations. He was also a noted

classical scholar Classics or classical studies is the study of classical antiquity. In the Western world, classics traditionally refers to the study of Classical Greek and Roman literature and their related original languages, Ancient Greek and Latin. Classics ...

Colonial politics

In 1894, Higgins was elected to the

as MLA for Geelong. He was a supporter of George Turner's liberal government, but frequently criticised it from a left-wing point of view. He supported advanced liberal positions, such as greater protection for workers, government investment in industry, and votes for women. In 1897, he was elected as one of Victoria's delegates to the convention which drew up the Australian Constitution, coming tenth of the ten successful candidates. At the convention, he successfully argued that the constitution should forbid the establishment of any religion, or the imposition of religious tests for the holding of government office. After being defeated at the Sydney and Adelaide sessions, he successfully moved at the Melbourne session the federal government be given the power to make laws for the conciliation and arbitration of industrial disputes 'extending beyond the limits of any one State'.

Despite these successes, he opposed the draft constitution produced by the convention as overly federalist, favouring instead unification, without a 'ridiculous' Senate. He also disdained the protectionist motive which he detected in the agitation for federation: the Victorian 'manufacturing classes', he wrote 'expected to exploit the markets of New South Wales, protected against the formidable competition of English and European goods'. He campaigned, unsuccessfully, to have the draft federal constitution defeated at the 1898 and 1899 Australian constitutional referendums. In November 1899 he supported the successful leadership challenge of Allan Maclean, a staunch anti-Federationist, to the premier, George Turner. These stances alienated him from most of his liberal colleagues, and also from the influential Melbourne newspaper, ''

The Age ''The Age'' is a daily newspaper in Melbourne, Australia, that has been published since 1854. Owned and published by Nine Entertainment, ''The Age'' primarily serves Victoria, but copies also sell in Tasmania, the Australian Capital Territory ...

''. Higgins also opposed Australian involvement in the

Second Boer War The Second Boer War ( af, Tweede Vryheidsoorlog, , 11 October 189931 May 1902), also known as the Boer War, the Anglo–Boer War, or the South African War, was a conflict fought between the British Empire and the two Boer Republics (the South ...

, a very unpopular stand at the time, and as a result, he lost his seat at the 1900 Victorian election.

Federal politics

In 1901, when federation under the new constitution came into effect, Higgins was elected to the first

House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...

for the working-class electorate of Northern Melbourne. He stood as a

Protectionist Protectionism, sometimes referred to as trade protectionism, is the economic policy of restricting imports from other countries through methods such as tariffs on imported goods, import quotas, and a variety of other government regulations. ...

, but the Labor Party did not oppose him, regarding him as a supporter of the labour movement. The Labor Party's confidence in him was shown in 1904, when Chris Watson formed the first federal Labor government. Since the party did not have a suitably qualified lawyer, Watson offered the post of Attorney-General to Higgins. He is the only person to have held office in a federal Labor government without being a member of the Labor Party.

Robert Garran Sir Robert Randolph Garran (10 February 1867 – 11 January 1957) was an Australian lawyer who became "Australia's first public servant" – the first federal government employee after the federation of the Australian colonies. He served as th ...

, the Secretary of the Attorney-General's Department, found Higgins difficult to work with, stating that "for the first week or two I could not induce him to sign even the most routine and trivial paper until after a full explanation ..the slowing-up of the machine was often embarrassing". Higgins also received criticism for his failure to regularly attend parliament, which left Watson and Billy Hughes having to explain his ministerial actions. '' The Melbourne Argus'' remarked that he "attends sometimes for prayers and retires spiritually refreshed". He was also attacked by '' The Bulletin'', which observed that he "has had an unparalleled opportunity to demonstrate his worth as legal ally of the Government, and all the demonstration that he has effected in the House could be contained in a paper bag". According to Ross McMullin, Higgins "approved of the Labor Party and its objectives ..but he remained outside the party and did not identify himself with it". However, his contributions to cabinet discussions were appreciated by his colleagues, and Watson was happy to defend him against the attacks from the media.

High Court

Higgins was an awkward colleague for the Protectionist leadership, and in 1906 Deakin appointed him as a Justice of the High Court of Australia as a means of getting him out of politics, although he was undoubtedly qualified for the post. In 1907, he was also appointed President of the newly created

, created to arbitrate disputes between

trades unions A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and benefits ...

and employers, something Higgins had long advocated. In this role, he continued to support the labour movement, although he was strongly opposed to militant unions who abused the strike weapon and ignored his rulings. Higgins was one of only eight justices of the High Court to have served in the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislature, legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the ...

prior to his appointment to the Court; the others were Edmund Barton,

Richard O'Connor General Sir Richard Nugent O'Connor, (21 August 1889 – 17 June 1981) was a senior British Army officer who fought in both the First and Second World Wars, and commanded the Western Desert Force in the early years of the Second World War. ...

Edward McTiernan Sir Edward Aloysius McTiernan, KBE (16 February 1892 – 9 January 1990), was an Australian lawyer, politician, and judge. He served on the High Court of Australia from 1930 to 1976, the longest-serving judge in the court's history. McTiernan ...

, John Latham,

Garfield Barwick Sir Garfield Edward John Barwick, (22 June 190313 July 1997) was an Australian judge who was the seventh and longest serving Chief Justice of Australia, in office from 1964 to 1981. He had earlier been a Liberal Party of Australia, Liberal Part ...

, and

Lionel Murphy Lionel Keith Murphy QC (30 August 1922 – 21 October 1986) was an Australian politician, barrister, and judge. He was a Senator for New South Wales from 1962 to 1975, serving as Attorney-General in the Whitlam Government, and then sat on the ...

. He was also one of two justices to have served in the

Parliament of Victoria The Parliament of Victoria is the bicameral legislature of the Australian state of Victoria that follows a Westminster-derived parliamentary system. It consists of the King, represented by the Governor of Victoria, the Legislative Assembly an ...

, along with

Harvester case

In 1907, Higgins delivered a judgement which became famous in Australian history, known as the "

Harvester Judgement ''Ex parte H.V. McKay'',''Ex parte H.V. McKay'(1907) 2 CAR 1 commonly referred to as the ''Harvester case'', is a landmark Australian labour law decision of the Commonwealth Court of Conciliation and Arbitration. The case arose under the ''Exci ...

". The case involved one of Australia's largest employers, Hugh McKay, a manufacturer of agricultural machinery. Higgins ruled that McKay was obliged to pay his employees a wage that guaranteed them a standard of living that was reasonable for "a human being in a civilised community", regardless of his capacity to pay. This gave rise to the legal requirement for a

basic wage A living wage is defined as the minimum income necessary for a worker to meet their basic needs. This is not the same as a subsistence wage, which refers to a biological minimum, or a solidarity wage, which refers to a minimum wage tracking labor ...

, which dominated Australian economic life for the next 80 years.T.J. Kearney, The life and times of Henry Bournes Higgins, politician and judge (1851-1929), ''Journal of the Australian Catholic Historical Society'', 11 (1989), 33-43.

World War I

During World War I, Higgins increasingly came into conflict with the

Nationalist Nationalism is an idea and movement that holds that the nation should be congruent with the state. As a movement, nationalism tends to promote the interests of a particular nation (as in a group of people), Smith, Anthony. ''Nationalism: Th ...

Prime Minister Billy Hughes, whom he saw as using the wartime emergency to erode civil liberties. Although Higgins initially supported the war, he opposed the extension of government power that came with it, and also opposed Hughes' attempt to introduce conscription for the war. In 1916, his only son Mervyn was killed in action in

Egypt Egypt ( ar, مصر , ), officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Medit ...

, a tragedy which made Higgins turn increasingly against the war.

Final years

The postwar years saw a series of bitter industrial confrontations, some of them fomented by militant unions influenced by the

Industrial Workers of the World The Industrial Workers of the World (IWW), members of which are commonly termed "Wobblies", is an international labor union that was founded in Chicago in 1905. The origin of the nickname "Wobblies" is uncertain. IWW ideology combines general ...

or the

Communist Party of Australia The Communist Party of Australia (CPA), known as the Australian Communist Party (ACP) from 1944 to 1951, was an Australian political parties, Australian political party founded in 1920. The party existed until roughly 1991, with its membersh ...

. Higgins defended the principles of arbitration against both the Hughes Government and militant unions, although he found this increasingly difficult. Postwar governments appointed conservative justices to the High Court, leaving Higgins increasingly more isolated. In 1920, he resigned from the Arbitration Court in frustration, but remained on the High Court bench until his death in 1929. In 1922, he published ''A New Province for Law and Order'', a defence of his views and record on arbitration.

Personal life

On 19 December 1885, Higgins married Mary Alice Morrison, the daughter of George Morrison, headmaster of

Geelong College , motto_translation = Thus one goes to the stars , established = , type = Independent, co-educational, day and boarding, Christian school , denomination = in association with the Unitin ...

, and the sister of the journalist

George Ernest Morrison George Ernest Morrison (4 February 1862 – 30 May 1920) was an Australian journalist, political adviser to and representative of the government of the Republic of China during the First World War and owner of the then largest Asiatic library ...

. Their only child, Mervyn Bournes Higgins, was born in 1887, and was killed in action in Egypt in 1916. After his son Mervyn's death, Higgins effectively adopted his nephew

Esmonde Higgins Esmonde Macdonald Higgins (26 March 1897 - 25 December 1960) was an Australian political activist and adult education proponent. He was a prominent figure in the early years of the Communist Party of Australia, serving as editor of its official ...

, and his niece

, paying for their education at universities in Europe. He was pained by Esmonde's conversion to Communism in 1920 and his rejection of the liberal values associated with the Higgins name. Aside from politics, he was president of the

Carlton Football Club The Carlton Football Club, nicknamed the Blues, is a professional Australian rules football club that competes in the Australian Football League (AFL), the sport's top professional competition. Founded in 1864 in Carlton, an inner suburb of Me ...

in 1904.

Legacy

Higgins was remembered for many years as a great friend of the labour movement, of the Irish-Australian community and of liberal and progressive causes generally. He was well-served by his first biographer, his niece Nettie Palmer, whose ''Henry Bournes Higgins: A Memoir'' (1931) created an enduring Higgins mythology. John Rickard's 1984 ''H. B. Higgins: The Rebel as Judge'' partly demolished this myth, but was a generally sympathetic biography. The H.B. Higgins Chambers in Sydney, founded by radical industrial lawyers, is named for him. Further, Higgins is commemorated by the federal electorate of Higgins in Melbourne, and by the Canberra suburb of

Higgins, Australian Capital Territory Higgins is a suburb in the Belconnen district of Canberra, in the Australian Capital Territory, Australia. The suburb is named after politician and judge Henry Bournes Higgins (1851–1929). It was gazetted on 6 June 1968. The streets of Higgi ...

References

{{DEFAULTSORT:Higgins, Henry 1851 births 1929 deaths Attorneys-General of Australia Justices of the High Court of Australia Lawyers from Melbourne Members of the Australian House of Representatives Members of the Australian House of Representatives for Northern Melbourne Members of the Cabinet of Australia Politicians from County Mayo Protectionist Party members of the Parliament of Australia Melbourne Law School alumni People educated at Wesley College, Dublin Australian King's Counsel Carlton Football Club administrators 20th-century Australian politicians Irish emigrants to colonial Australia University of Melbourne alumni