Untitled … Former executive director of the bar dies … Babette Smith played a leading role in soothing heated temperaments … Huge drama over nude painting removed from the bar common room … Boarding school politics … Furious letters … Name calling … Unsettling events … TV documentary … Theodora reports

Babette was the executive director of the NSW Bar Association from September 1993 to June 1997 – the first and only woman to hold the job. She managed the bar during the presidencies of John Coombs, Murray Tobias and David Bennett. 

Babette Smith was the daughter of Bruce Macfarlan, a former president of the bar association and a judge of the NSW Supremes. Her brother is the current appeal judge Robert Macfarlan. 

Babette was charming, fearless and engaging. 

A significant amount of her time as executive director was spent dealing with the exploding temperaments, scalded egos and tribal politics of barristers. In particular, she played a key role in trying to sooth the jagged nerves that flared during a crisis over a painting in the bar common room by Geoffrey Proud, called Untitled. 

For those who have not come across this art work it is of a young semi-clad woman believed to be masturbating – or as Clive Evatt put it in a review of the bar’s art collection, “a lady unaware of s.576 of the Crimes Act” (now repealed). 

It was described in the inventory as: 

“A fine Renoiresque, soft, spray-gun painted work … a seductive example, in the neo-realist mode … comprehensible by the most benign barrister.” 

Evatt wrote: 

“If females wish to protest at anything in the collection, the obvious one would be the photograph of Sir Frederick Darley donated in 1965 by Maxwell. Sir Frederick was Chief Justice of New South Wales in 1921 when our first woman Barrister, Miss Ada Evans, qualified for the Bar. He did not approve of women barristers and refused to allow her to practice.” 

Solicitor General David Bennett maintains that the lady is not masturbating as no one had seen her hand move. 

Untitled was donated by a collective that included Meagher, Hope, McHugh, O’Keefe, Cripps, Morris, Poulos, Hely and Chapman (as they were). They purchased it through the Watters Gallery in the mid-1970s.

It hung on the bar common room for nearly 20 years gradually causing more and more disquiet among members – particularly women barristers. Various motions before the council to have the painting removed were unsuccessful. 

Janet Coombs struck back for women members by donating a painting of a nude male. The council rejected the painting on “aesthetic grounds”. 

By 1994, then president Murray Tobias decided that Untitled was “inappropriate” and not in keeping with an inclusive bar association. One dark night it was removed from the wall and sent to the Robin Gibson Gallery in Darlinghurst. 

Tobias told the painting’s donors: 

“I cannot disguise the feelings of discomfiture I sense that to retain the painting in the common room represents an affront to the women members of the bar, whose full participation in all bar activities I wish to encourage.”

The outraged howls from the red wine and cheese brigade could be heard for miles. Furious letters were sent to Tobias. Roderick Pitt Meagher, at this stage an appeal judge, resigned from the bar association, telling Tobias that he was beset by “strident harridans”. 

Tobias had to write a grovelling letter to Meagher begging him to come back, which he did. 

Just as well, because Meagher had prepared a blistering press release which was also withdrawn. It accused Tobias of lacking taste and that he had no power to remove the painting and little wonder the government had no faith in the Bar Association. 

Linton Morris QC, another donor of the painting, told Tobias he was “astonished by the lack of cultural maturity and taste”. 

He proposed the formation of a cultural sub-committee to monitor “all magazines and periodicals coming into the association’s rooms in accordance with the principles applied to the removal of the subject painting”. 

“… The committee should then turn its attention to the chambers of individual members. These chambers should be inspected in case they contain artwork or objects which may offend the female members said to be so sensitive to the painting which I partially donated. 

“Should the association have any spare time, they should then turn their minds to putting trousers on dogs.” 

Morris regarded the matter of “such importance” that should the painting not be restored there must be an extraordinary general meeting of the bar to “determine what conditions are to be placed upon donations made by members”. 

Another donor was so upset he said he would never speak to Tobias again.

A committee consisting of Ian Barker, Clive Evatt and Ruth McColl was established to review the situation and make recommendations. 

When the vexed issue returned to the council the vote was 10 to nine in favour of bringing Untitled back from the Gibson Gallery. 

At this point Babette Smith heroically stepped in and suggested the painting should hang in her office. 

“As long as I’m in the job it’s staying there.” 

However, the drama was not over. In 2000 the ABC aired a documentary by Ian Walker called The Naked Lady Vanishes – the story of the Bar Association and its troubled painting. 

There were colourful interviews with David Bennett, Janek Coombs, Clive Evatt, Murray Tobias, Babette Smith, Louise Steer and Roddy Meagher – who played the role of a painting. 

At the end of the doco, Walker brought the naked lady to life, to saunter out of the painting. 

At that point, Babette Smith had left the bar association and the painting had moved to the chambers of Rick Burbidge QC. 

We do not know where it is now. 

Shortly before the program was to go to air, Tobias wrote the ABC requesting that remarks by Justinian’s editor be removed: 

“I have just been informed that next Tuesday evening the ABC proposes to air on Channel 2 at or about 8pm a documentary produced by a final year student at the Ryde School of Television [sic] (if my memory serves me) relating to the removal from the NSW Bar Association’s common room at or about the end of 1993 of a Geoffrey Proud painting. 

Given that this was a student exercise I agreed to be interviewed for the purpose of the film. In due course I received a video copy of the film and noted with deep concern that I was the subject of a number of defamatory remarks in the film made by Richard Ackland who, apparently, also took part in the programme. 

Accordingly, upon the assumption that the programme is to be publicly aired as I understand it will be, I would be obliged if you would take some steps to delete Mr Ackland’s remarks and statements of and concerning myself.” 

The program was pulled from the schedule and edited to avoid any hatred, ridicule and contempt.

The remark to which objection was raised described Tobias as … 

“A man, I suppose, ambitious to receive judicial appointment after his statutory time as head of the Bar Association.”  

The legal advice to the ABC was that the statement could give rise to a defamatory imputation that Tobias had the painting removed to further his ambition to become a judge, whereas the true reason for its removal was to accommodate the concerns of a number of women members who objected to it.

In 2003 Tobias was appointed to the Court of Appeal. In 2013, Justinian reported on a defamation case in which Muslim spokesman Keysar Trad was suing radio station 2GB over a broadcast he claimed carried meanings that he was a dangerous and disgraceful individual who incites people to commit acts of violence and to have racist attitudes. 

The case had returned to the Court of Appeal where Tobias was sitting. Richard McHugh SC for 2GB described a “thesis” on homosexuality written by Trad as, “dangerous … [full of] gross misinformation [and a clear example of] crossing the line”.

He took the court to Trad’s characterisation of homosexuals as “dogs” and “perverted people prowling for prey”. 

The normally sensitive and caring Tobias responded: 

“But some are – up near St Vincent’s, that’s what they do. It’s called The Wall, I think.” 

There was an audible sucking in of air throughout the courtroom. 

One of the revelations in Ian Walker’s documentary was that Untitled was copied directly from a Penthouse centrefold. 

Vale Babette Smith.