Dr. Susan Leahy:

My concern about an absolute prohibition on counselling notes, and the challenge for the Legislature, is that you do not want to bring in a piece of legislation that is constitutionally vulnerable. If you bring a nice piece of legislation through the Houses and it is struck down, you are back at square one. The focus on counselling notes is understandable, but if we just focus on counselling notes, and if we had legislation that prohibits their use, we would open up a whole other raft of records, which would then start to become the focus of these trials. We might solve one issue but create another problem as all these other records that are unregulated become the focus of disclosure applications. We need to tread carefully to ensure that we are looking in the round at all the potential information, not just in respect of intruding on the privacy of complainants and subjecting them to distress when these issues arise at trial. Research from juries in other jurisdictions shows how deeply prejudicial this evidence can be in terms of myths and stereotypes.