Something still niggles away at Justice Terence Higgins, the man who unmade Manus.



Sitting in a quiet restaurant in Canberra’s trendy inner south, a world away from his home in Papua New Guinea, Higgins shakes his head as he mulls it over.

Why did the Australian government ever think its Manus Island detention centre would survive a constitutional challenge?

Eight months ago Higgins became one of five Papua New Guinean supreme court justices who unanimously ruled that the detention of asylum seekers on Manus breached detainees’ human rights and was therefore at odds with the PNG constitution.



Australia’s federal government ought to have known it was an unavoidable.

Most judges would not have children who have mental problems and come in contact with the law Gregory Stretton SC

As long ago as 2013 the then prime minister, Kevin Rudd, and the then opposition leader, Tony Abbott, had been warned that the Manus plan was unconstitutional because it deprived asylum seekers of their liberty despite them not having committed an offence.

In his first interview since the decision, Higgins tells Guardian Australia that subsequent governments may not have taken the independence of PNG’s judiciary seriously.

Should they not have foreseen the outcome?

“You would have thought so, unless they thought the government up there controls the judiciary, which it doesn’t,” he said. “That’s one of the features of PNG that’s good, unlike Fiji or Nauru, and the judges really hold it very dear.”

Higgins has a long history of action in the highest courts on behalf of the least powerful.

In the early 1970s he had founded a modest-sized firm operating in Canberra’s small legal pond. The practice could barely scratch two cents together. The trust account was bare.

But while others were slogging away on mundane money-makers in lesser courts, Higgins could often be found on his feet in the high court, championing the causes of clients who could scarcely afford to pay.

“There was not even a penny in the Higgins Faulks trust account but there was his honour off on another venture to the high court for some poor unfortunate case he was championing,” Higgins’s friend and former colleague Gregory Stretton SC recalls.



“He was always a champion of the underdogs and the oppressed, there’s no question about that.”



It’s a constant thread weaving its way through Higgins’s life.

It was there in his early days as a solicitor, again as chief justice of the Australian Capital Territory supreme court and once more during the momentous Manus Island decision – by far his most high profile – which threw the future of Australia’s offshore detention regime into uncertainty.

It’s hard to justify the continued detention of people who have not committed a crime Terence Higgins

Higgins said the 2012 decision to reopen Manus was clearly rushed. “I think that’s almost certainly true, they thought they could come to an agreement with the PNG government and it would be their problem, which is what they say in Nauru – ‘It’s not our problem, it’s the Nauruan government’s problem.’”

Higgins spent almost all his practising life in Canberra, starting as a solicitor in the 1960s, becoming partner, plying his trade as a barrister in the 1980s and then eventually joining the ACT supreme court bench in 1990, where he stayed for 23 years.

Periods of personal turmoil, often spilling into the harsh glare of the media, shaped his last years on the bench. His son and stepson have both experienced mental illness and have both faced criminal charges and spent time in custody.

His son was charged for seriously assaulting Higgins in 2003, an attack that attracted media publicity. The day after the assault, Higgins was back at work on the ACT supreme court bench, his injuries clearly visible.

He plays down any argument that this gave him a special insight into detention and mental illness, or any deeper understanding of the circumstances of those detained on Manus.

Asylum seekers on Manus island in 2014. Photograph: Reuters

“I do understand that if you lock people away and don’t tell them when they’re going to get out, it does create mental health problems,” he said. “[But] that’s not a unique insight.”

Stretton, however, believes Higgins’s personal experiences gave him something many judges are sorely lacking: a proper, real world grounding.

“Most judges would not have children who have mental problems and come in contact with the law, that’s just something way outside what you’d call a normal judge’s life,” he said.

“The criticism of judges is they always claim to know what the average person on the street thinks. They think they know … but they haven’t experienced it and therefore they don’t really know. Terry had experienced it and he did know.”

Before he joined the bench, Higgins was a longtime member of the Labor party. He worked for some time as a Labor branch president and helped write the party’s earlier human rights policies.

Gough Whitlam was counted as a friend, a mentor and a client. The pair met through the Australian National University in Canberra and Higgins would later represent Whitlam through the fallout of the 1975 loans affair.

Higgins believes that the support of both parties for offshore processing is not sustainable and says the policy is hurting the international reputation of PNG, as well as Australia.



“Eventually it will need to be rethought but how [Labor] do that is a matter for them,” he said. “I wouldn’t have thought they could sustain the current regime indefinitely. I don’t think they think they can either. I don’t just mean the Labor party there, I mean the government is in the same position …

“It’s hard to justify the continued detention of people who have not committed a crime. Of course, in PNG that’s taken for granted because the constitution expressly sets out the human rights of people.”

Higgins, who left the ACT supreme court in 2013 aged 70, joined the PNG national and supreme courts last year under laws allowing the appointment of non-citizen judges. He followed a number of other judges who decided to serve there after reaching their mandated retirement age in Australia.

Now Higgins’s retirement in PNG is fast approaching, and his relatively brief love affair with the country is coming to an end. He has developed a keen interest in the country’s history and animatedly recounts stories of its time as a German colony.

But when conversation turns to Australia’s history, and how the current immigration policy will be remembered in decades to come, the tone becomes serious.

“Look, I’m pretty sure it will be regarded as a significant event,” he said. “It’s certainly not enhancing our reputation any more than it was enhancing the reputation of PNG or has enhanced the reputation of Nauru.



“When they compare us, of course, with Europe, we don’t come off too well.”

