Henry Bournes Higgins would have turned 165 today. He was one of Australia’s most influential political figures around Federation. He was a delegate at the Constitutional Conventions, served in the Victorian and Federal Parliaments, and became a Justice of the High Court.
An inauspicious start
Lawyers are not often renowned for being shy or retiring types. However, when Henry Bournes Higgins was born in Ireland in 1851, he began a childhood of delicate health. He had a serious stammer, and poor health kept him away from school for much of the time. Leaving at 14, he found work with a draper and later a tailor, lowly employment, but all he was cut out for after missing years of school.
Higgins’ older brother died from consumption in 1869, convincing his parents that migration to a warmer climate in the Australian colonies was necessary for their weakly second son.
It was a inauspicious start for a future High Court justice.
Arriving in Australia
Higgins and his parents arrived in Melbourne in 1870. Given a new start in life, he went back to school, working his way through school and university, teaching and tutoring on the side. He revelled in the second chance, winning regular prizes for his academic excellence in fields from logic to political economy to history.
Despite this wide field of accomplishment, Higgins decided to turn his attention to the law. First, however, he would have to conquer his stammer. This he achieved after much hard work, founding a debating society, and earning a reputation as a workmanlike public speaker. Higgins eventually became a barrister in 1876. The old discomforts remained though, and he chose to practice in equity, where he would never have to address a jury.
Higgins prospered. He paid for his four younger siblings’ university courses – his sister Anna was one of the first women to attend the University of Melbourne – and remained a firm advocate for female graduates. He funded scholarships for other university students, perhaps remembering his own earlier financial difficulties.
In 1885, he married Mary Morrison, who, in 1887, gave birth to the couples’ only child, a son: Mervyn Bournes.
In 1894, Higgins was elected to the Victorian Legislative Assembly as the member for Geelong, and advocated for more government intervention in the economy, greater protections for workers, including a minimum wage, and extending the franchise to women. He gained a reputation as a great friend to the downtrodden, and his political star began to rise.
As a result, he was elected as a Victorian delegate to the constitutional conventions of 1897-9, helping other major figures like Sir Henry Parkes, Sir Samuel Griffith, Alfred Deakin and Andrew Inglis Clark to draft the future Australian Constitution. He was integral to the inclusion of section 116, protecting freedom of religion.
It was a far cry from the sickly, poorly-educated boy working as an assistant in the tailor’s shop.
Despite his enthusiastic assistance in drafting the Constitution, and his burgeoning political fame, controversy began to strike Higgins’ career.
As soon as the constitutional convention ended in 1899, Higgins revealed his opposition to the new draft constitution. He opposed the construction of the Senate as a states’ house, and feared the constitution was too rigid, too hard to amend, “a dead, lifeless thing which no arts of persuasion can reach”. He was one of only two convention delegates to oppose the draft, and his popularity in Victoria received a hit.
He took another hit soon after, opposing involvement in the Second Boer War, which had just begun, and which was popular in Victoria.
Finally, he isolated himself in the Victorian parliament by assisting the downfall of George Turner‘s government, which he viewed as insufficiently left-wing.
This perfect storm of controversy saw him lose his seat at the next election in 1900.
Despite losing his state seat in 1900, Higgins was elected as an independent to the inaugural Federal parliament in 1901, as member for the working-class seat of North Melbourne. Although not a member of any party, Higgins was offered the post of Attorney-General in Chris Watson’s short-lived Labor government in 1904. To this day, he is only person to have held office in a federal Labor government without being a member of the party.
Nevertheless, the Labor Party considering opposing Higgins in North Melbourne at the upcoming 1906 elections. They were spared having to make this controversial decision, though, by the news that then-prime minister Alfred Deakin had appointed Higgins to the High Court. Higgins also took over the presidency of the Commonwealth Court of Conciliation and Arbitration soon thereafter.
Higgins on the Court
It was as a conciliation and arbitration judge that Higgins was to receive his greatest fame.
In his ‘Harvester’ judgment, Higgins set out what he considered a ‘fair and reasonable’ wage for a working man. The working man was a “human being in a civilised community”, Higgins said, and was entitled to be able to look after himself and his family in a “condition of frugal comfort”. Higgins drafted a budget for a family of five (the working man, his wife, and three children), and declared that the fair and reasonable minimum wage for an unskilled working man in Australia was seven shillings a day. It was considered a landmark judgment.
The case itself was appealed from the Conciliation Court to the High Court, where Higgins’ declaration was found to be unconstitutional on technical legal grounds, but the principles applied by Higgins shaped the conciliation and arbitration field for the next century.
The outbreak of world war in 1914 marked the end of an era for Higgins personally, and Australia as a nation.
The economic conditions that had prevailed before the war were disrupted, as inflation and significant changes in the workforce began to undermine the arbitration system that Higgins presided over. Prime Minister Billy Hughes provoked Higgins’ dismay by his inconsistent approach to labour relations, coming to hasty settlements with striking trade unions and setting up special tribunals for individual industries. Higgins resigned in protest in 1920.
Meanwhile, personal tragedy had struck for Higgins and his wife. Their only child Mervyn had enlisted when war broke out. A Melbourne University and Oxford graduate, a successful rower, and “brave to the point of fearlessness”, Mervyn survived Gallipoli, only to be killed in action in Egypt in 1916.
The final years
Following the death of his son, and his resignation from the Conciliation Court, Higgins saw out his final years on the High Court as a sort of cultural philanthropist. He endowed scholarships and literary funds, maintaining an interest in Australian culture as well as the Irish culture of his boyhood.
Changes to the Court’s personnel also saw him change from regular dissents to regular concurrences with his brother justices, as the limited approach of the founding justices changed after the famous Engineers’ case. Although the postwar world was quite different from the colonial Victoria that Higgins met on his arrival in 1870, Higgins retained the support of the trade union and labour movement for the remainder of his career.
Higgins died on 13 January 1929, just before the outbreak of a worldwide Depression that would create such hardship for working families. Seemingly a stern and formal man, Higgins was remembered as affectionate and kind. Not much remains of a political or judicial legacy, but his support for those on the margins of society, combined with his determination to achieve better outcomes for them through existing institutions (which could sometimes put his Labor Party friends offside), is a decent epitaph for a decent man.
– William Shrubb
‘Higgins, Henry Bournes (1851-1929)‘, Australian Dictionary of Biography
‘Higgins, Henry Bournes‘, Australian Government Solicitor
Ex Parte H. V. McKay (the Harvester judgment), H. B. Higgins