South Australian MP Fraser Ellis can't "wave magic wand" of parliamentary privilege to avoid prosecution over allegedly dishonest travel allowance claims, prosecutors have told the Adelaide Magistrates Court.
Mr Ellis was charged with 23 counts of deception last February over his alleged misuse of the Country Members Accommodation Allowance, following an Independent Commissioner Against Corruption (ICAC) investigation.
The member for Narungga is accused of making 78 fraudulent claims for the allowance, totalling more than $18,000 —between May 13, 2018, and June 12, 2020.
Mr Ellis strongly denies the allegations.
His lawyers have asked the court to find that he is immune from being prosecuted because the travel claims were subject to the "absolute protection of parliamentary privilege" after being tabled in parliament during a heated debate in 2020.
His lawyer, Tom Duggan, told the court the parliamentary privilege claim was embedded in the Bill of Rights, which dated back to 17th Century England.
It was borne during a turbulent time in history under King Charles I, whose authoritarian rule led to the breakdown of the monarchy's relationship with Parliament and provoked a civil war, leading to his execution by beheading.
"In these difficult times between the monarch and the House of Commons, out came the bill of rights," Mr Duggan told the court.
Mr Duggan said once the document was tabled in parliament it became "unavailable for proof" and couldn't be relied on by the prosecution in the case.
"This document has been tabled, not only was it tabled, it formed the basis of the notice of motion … it became the business of parliament because of the scrutiny which Mr Malinauskas wanted to apply in relation to the forms, that got bipartisan support," he said.
'It's not a cloak, it's not a magic wand'
Prosecutor Ryan Williams said tendering the documents in court would not undermine the operations of parliament.
"What my learned friend (Mr Ellis's lawyer) seeks to do ... is to wave the wand of parliamentary privilege or attempt to throw out the cloak so that parliamentary privilege protects all of these thousands of claim forms which were tabled in parliament so that they could not be admissible in any proceedings.
"In my submission that is to, with respect, misunderstand the scope of parliamentary privilege, its purposes and the consequences."
Mr Williams said the prosecution case was simply that Mr Ellis did not stay in Adelaide on the dates he claimed the allowances.
"Mr Ellis's forms were not the subject of debate, questioning or any determination in the course of [parliamentary] proceedings," he said.
The lawyers also debated what parallels could be drawn from a UK case involving three former MPs committed for trial on charges of false accounting while serving as members of parliament
In that case, the court ruled that MPs' expenses claims did not attract parliamentary privilege.
Magistrate Simon Smart will deliver his ruling in August, less than three weeks before Mr Ellis is due to stand trial
