South Australia's House of Assembly is seeking to be heard in the criminal case against Fraser Ellis, the member for the state seat of Narungga who is facing multiple charges of making fraudulent travel claims.
Mr Ellis — who has been charged with 23 counts of deception — claims he is immune from being prosecuted because the documents detailing the alleged fraud are subject to the "absolute protection of parliamentary privilege".
His lawyers are seeking a permanent stay on his court proceedings.
The Narungga MP is accused of making 78 fraudulent claims for the Country Members Accommodation Allowance — totalling more than $18,000 — between May 2018 and June 2020.
His deception charges arose as a result of an investigation by the state's Independent Commissioner Against Corruption (ICAC).
Mr Ellis's trial was due to begin in August — after several delays – but his lawyer has now applied for a permanent stay on the case.
In court documents released to ABC News, lawyers for Mr Ellis claim the prosecution case is based on "parliamentary papers", which could not be prosecuted.
"The claim forms are therefore subject to the absolute protection of parliamentary privilege," the application filed in the Adelaide Magistrates Court stated.
"Accordingly, the truth of the representations allegedly made by the accused in the claim forms cannot be challenged by the court or other place [outside] of parliament.
"In circumstances where the claim forms are alleged to be the instrument of the deception, and where the truth of the declarations contained in the documents cannot be challenged, contradicted or impeached in any place [outside] of parliament, the prosecution is foredoomed to fail.
"There is no evidence capable of sustaining the charge. The prosecution is, therefore, an abuse of the processes of the court and should be permanently stayed."
On Friday, Magistrate Simon Smart said he had received an application from the Crown Solicitor's Office — acting on behalf of the Clerk of the House of Assembly — for access to court documents, which he would grant.
The magistrate said he expected the Clerk would file an outline of argument and that it needed to address "the standing of the Clerk in these proceedings to be heard and any argument that's intended to be put".
Prosecutor Ryan Williams has previously told the court that, without the documents, the case could be dismissed and that a "common sense" approach to the application of the law should prevail.
"If parliamentary privilege applied, we would have to accept the evidence cannot be used at all, given it forms the basis of the alleged dishonest representations, it would be an essential issue," he told the court earlier this year.
"There's some authority that parliamentary privilege does not protect against the misuse of parliamentary bonds."
Mr Williams told the court the prosecution response would be filed on Friday.
The matter will be argued in court next week.
