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Higgins, Henry Bournes (1851–1929)

from Argus (Melbourne)

Deep regret will be felt by members of the judiciary and the bar and the community generally at the death last night of Mr. Justice Higgins. He had not been in good health for some time, and was under the care of Dr. Ivor Beattie at his seaside home at Dromana, but there appeared to be no cause for apprehension in his condition. He went for a walk yesterday afternoon, as was his custom, to Arthur's Seat, which is at the back of his residence, Heronswood, and at 7 o'clock, shortly after he returned, he collapsed under a paralytic stroke. Dr. Beattie was summoned immediately, but within half an hour from the time of the seizure Mr. Justice Higgins died.

As a barrister, a legislator in the Federal and State Parliaments, and later as a judge in the Arbitration Court and in the High Court, he gained the respect and esteem of all associated with him for his extensive and intensive knowledge of the law. He was notable too as a writer and as a classical scholar; his reference from the Bench to the "Serbonian bog" into which arbitration had fallen, is still quoted frequently and applied to legal issues which are clouded. His long term as president of the Arbitration Court, from 1907 until 1921, was made notable by many important judgments, perhaps the most far-reaching in its effects being in the famous Harvester case, the first to come before him as president of the Court, in which he enunciated the principle of the basic wage. This was an amount sufficient to provide for the normal needs of the average employee, regarded as a human being living in a civilised community, and variable according to the rise or fall of the cost of living. In the Harvester case, the basic wage was fixed at 7/ a day. It is now more than 15/ a day.

Almost equally famous is the occasion when the miners of Newcastle struck work in the war period and afterwards appealed to the Arbitration Court. The president refused to hear them while they were breaking the law. He told them that they could not break the arbitration law and have advantage of it at the same time. On that occasion, it was written of him, he took a proper and dignified stand, and he probably would have prevailed on the miners had not the Prime Minister of the day (Mr. W. M. Hughes) interposed by appointing a judge of inferior status to take the matter out of the hands of the authority appointed by law to deal with it. He did not resign his position, as he might easily have done, when the Prime Minister set aside the law, and, under cover of the War Precautions Act, superseded him in one of the most important cases which had ever come before him. Since then he submitted to several similar invasions of his domain by the Executive, and it was the passing of the Amending Arbitration Act and the Industrial Peace Act in 1920 which finally caused his resignation. The first of these provided that three justices of the High Court should sit upon any question in which a reduction of hours of work was sought, and the other empowered the Ministry to appoint tribunals to deal with certain industrial matters.

When these two bills became law, Mr. Justice Higgins outlined his position from the bench, and announced his resignation on the grounds that the public usefulness of the Court had been fatally injured by them. Statistics are not available of the early work of the Court, but from 1914 until his resignation he made 159 awards, and 766 agreements were filed and certified by the Court. Included in the awards were 18 variations sought, nine of which were granted and nine refused.

Born in Newtonards, Ireland, in 1851, Mr. Justice Higgins was the second son of the Rev. John Higgins. He received his early education in Dublin, and came to Australia when he was aged only 19 years, arriving here in February, 1870. Continuing his education at the Melbourne University for four years he gained several exhibitions and first-class honours and scholarships in classics, history, and political economy. He also took the degrees of master of arts, bachelor of laws, and doctor of literature. In 1876 Mr. Justice Higgins was called to the Victorian Bar, and to the Bar of the Inner Temple, London, 10 years later. He at all times took a keen interest in the Melbourne University, and was a member of the council from 1887 to 1923. His political career began in 1894. In September of that year he was elected to the Legislative Assembly as member for Geelong, and represented that city until 1890, when his views on the Boer War lost him the seat. On the other hand, his attitude towards the Great War expressed in an interview early in 1915, after a world tour, was that Britain had taken the proper step in declaring war against Germany. "Personally," he said "I am unable to see what else we could have done but fight."

Eleven years later he returned to politics as member for North Melbourne in the first Parliament of the Commonwealth. That was in 1901. He voted against liberalism as represented by the first Deakin Administration, and became Attorney-General in the first Labour Ministry formed by Mr. Watson, though he declined to become a member of the Labour party. When the second vote on the Federal Constitution Bill was about to be taken in Victoria he declared his intention of recording his "humble negative," notwithstanding that the result was certain. It was written of him at the time that "had he remained longer in politics the party from which he drew his strongest support would have opposed him, and would eventually have strangled him politically."

Mr. Higgins was regarded as a Radical in a party that is now as Conservative. In the game of party politics he expected each party to keep in step with him, but he left that sphere before the lines became so clearly drawn that a choice between the two was the alternative to being crushed between both. One prophetic statement made by him is contained in a bound volume of his speeches on the Federal Constitutional Bill. It reads: "The bill makes it practically impossible ever to adopt a referendum..." Events since that day show the truth of his words.

From his retirement from the Arbitration Court till his death, Mr. Justice Higgins continued to sit on the High Court bench, where his sound knowledge of the law, particularly in industrial matters, was of considerable assistance to his brother judges.

The only son of Mr. Justice Higgins was killed in the war, and as a memorial he founded the Mervyn Bournes Higgins scholarship in Arts at the Melbourne University.

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Citation details

'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 October 2017.

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