This provision tends to reverse the effect of the Commission's argument. If the paragraphs other than paragraph (a) are, in their nature, unlikely to be the subject of an application by any person other than the Commission, that provides weight for the proposition that it is precisely an order under paragraph (a) that might be envisaged by sub-s (2)(b) as being made by the owner of an interest in property. The first limitation on the availability of s 12(1), sought to be imposed by the Commission, should be rejected.
57 The second proposed limitation relies upon the terms of paragraph (a) as not extending to the case where an interest is removed entirely from the scope of an order. Thus, senior counsel argued that the paragraph should not permit a variation which would "gut the order". Even if the extreme case were excluded, that does not help to identify what form of variations are within the terms of paragraph (a), and what are not. Further, the paragraph clearly envisages that one restraining order can relate to numerous interests in property, so that to remove one interest would not necessarily constitute an extreme case of variation, amounting to a revocation of the order. The argument for reading down the scope of paragraph (a) may be stronger when it is considered in the context of s 25, to which reference is made below.
58 The third argument, relying on the construction of the language in sub-s 12(1), focused upon the concept of "ancillary orders". The Commission submitted that the meaning of "ancillary" was well-known. Thus, in a case concerning the Licensing Ordinance 1939 (NT), Muirhead J was required to consider the concept of the supply of liquor as "ancillary to the meal" being taken in a dining room: Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12. His Honour noted, at p 14:
"It is important to note that the word 'ancillary' has a special meaning. It means less than supplementary or supplemental to - it means 'subservient' or 'subordinate' the derivation being from the Latin 'ancillaris' - 'ancilla' being a handmaid - a person who in the good old days was regarded as subservient to her mistress and perhaps even to her master. So the meal is clearly the principal thing that … could be enhanced by the supply of liquor."
59 In McCleary v Director of Public Prosecutions (Cth) (1998) 157 ALR 301 the Full Court of the Supreme Court of Western Australia considered whether proceedings for enforcement of an undertaking, given in relation to a restraining order, were exempt proceedings for the purposes of the Telecommunications (Interception) Act 1979 (Cth). In answering that question, Ipp J (with whom Malcolm CJ and Franklyn J agreed) referred to Koala Motels and continued (at 332):
"According to the Macquarie Dictionary , 'ancillary' means 'accessory; auxiliary;', and 'ancillary relief' means 'supplementary or incidental relief sought in addition to the main relief as in matrimonial causes, proceedings for maintenance, custody, settlement of property or damages for adultery'. The proceedings for the enforcement of the Commonwealth's undertaking are brought by reason of the fact that the undertaking was given … in support of the application for a restraining order, and the undertaking becomes open for enforcement because the restraining has expired. The giving of the undertaking has a close and direct connection with a restraining order. While proceedings for the enforcement of the undertaking are not supplementary or incidental to the main relief (the latter being the obtaining of the restraining order), the enforcement proceedings are incidental and subordinate to the restraining order as they are dependent on the grant of the restraining order and the expiry thereof. In my opinion, on this basis, the proceedings for the enforcement of the undertaking are ancillary to the restraining order."
60 The derivation of the term "ancillary" is evocative, but does little to identify the bounds within which it must operate in a particular statutory context. Indeed, the proposition, upheld in McCleary, that proceedings to enforce an undertaking are ancillary to "a restraining order", being consequent upon a breach of the restraining order, tends to support the breadth, and arguably the vagueness, of the concept. In the present case, the term must take its meaning from the kinds of orders which the Parliament envisaged could be properly described as "ancillary orders" without, as the provision states, "limiting the generality of" the power. They include orders varying the interests in property to which the restraining order relates (par (a)), an order for the examination of any person on oath in relation to the location of property the subject of a restraining order (par (b)), orders with respect to the carrying out of any undertaking with respect to the payment of damages or costs (par (c)), and orders requiring or authorising the seizure or taking possession of property (par (e)). These identified orders do not constrain the power conferred by s 12(1). However, some at least of the specified kinds of order are clearly directed towards the likely conclusion of proceedings, namely the making of an assets forfeiture order, pursuant to s 22 of the Act. A restraining order is, in a sense, merely a preliminary step in that process. Accordingly, there is something to be said for a view similar to that expressed by Adams J in NSW Crime Commission v Gardiner [1999] NSWSC 1210 at [24] that the kind of orders envisaged are "ancillary to proceedings undertaken pursuant to the Act and accordingly ancillary to proceedings" for an order under either s 22 or s 27, in the course of which a restraining order has been made.
61 At the heart of the Commission's case is the proposition that an order made under s 10 cannot be varied at a later time (except pursuant to s 25) merely because further information becomes available or because a different view might later be taken as to whether, at that later point in time, there were reasonable grounds for the suspicion required to ground the restraining order. If that argument be accepted, as it should be, the concept of later ancillary orders which may involve, for the purposes of par (a), varying the interests in property to which the restraining order relates, must give the term "ancillary" the meaning "consequential upon" rather than limiting it to "subservient or subordinate to", or must permit reference to the proceedings as a whole in identifying that to which the order is ancillary.
62 The fourth submission relied on by the Commission places weight on the basis on which the restraining order is made, pursuant to s 10(3) of the Act (set out at [6] above), and the power to obtain an exclusion order, pursuant to s 25, the provisions of which are set out at [14] above.
63 The Commission's argument is thus that a judge of the Supreme Court is obliged to make the orders sought under sub-s 10(2) if, having regard to the matters contained in the affidavit tendered by the Commission in support of the order, he or she is satisfied that there are reasonable grounds for the identified suspicion. By implication, the Court cannot look at other material, nor can the authorised officer be cross-examined on his or her affidavit. Once the restraining order is made, an interest in property can only be removed by an exclusion order made pursuant to s 25, when the preconditions noted at [53] above have been fulfilled.
64 Against that background, the Commission argues that s 12(1)(a) does not permit an order in the nature of an exclusion order. However, if that is so, the Commission cannot rely on s 12(1)(a) to remove property from the scope of a restraining order, once made, even if persuaded that the property is not that of any person suspected of having engaged in a serious crime related activity, nor serious crime derived property. Of course, it may be possible for the Commission to amend its application for an assets forfeiture order, before such an order is made, so as to exclude the property which was mistakenly included in the restraining order. But, if, as is the case with the First Defendant in the present proceeding, no assets forfeiture order is sought under s 22, but only a proceeds assessment order under s 27, that course is not open and presumably the restraining order cannot be lifted unless a person with an interest in the property is willing to commit resources to, and suffer the potential consequences of a personal examination of his or her affairs, by making an application under s 25.
65 A second difficulty with the close confinement of the power under s 12(1)(a), as proposed by the Commission, is that it also relies upon a limited view of the operation of s 10(3). If, as noted above, an application under s 10 need not be made ex parte, one would be reluctant to imply, absent express terms to this effect, that the person against whom such an order is sought would not be able to present evidence to demonstrate that he or she had no interest in the property in question. And if such evidence could be presented, presumably the Court would be entitled to take it into account.
66 Of course, it does not follow that, if a restraining order were made in circumstances where it was opposed in the manner suggested, the defendant could mount a separate and later challenge under s 12(1)(a), without regard to the constraints imposed by s 25. On the other hand, where an order is made ex parte, for good reason, it would be rare that, as a matter of principle, there would be reason to prevent the defendant from putting forward material which could have been put forward if the initial proceeding had been inter partes.
67 The resolution to this conundrum is to be found in the express constraint contained in the two paragraphs of sub-s 25(2). To take the second paragraph, which would appear to be that relevant in the present case, the issue in contention on the application for an exclusion order is whether the property is illegally acquired property. If that is the issue, then the constraints imposed by s 25 will operate. That is not to say that an exclusion order made under s 25 may not also constitute an order of the kind referred to in s 12(1)(a). But if the reason for excluding the property from the restraining order was that it was owned by a person having a name similar to that of the person whom the police suspected of committing a serious crime, but in fact having no connection with the suspect, the terms of s 25(2) are not engaged. In that situation, there is no reason to limit the power conferred by s 12(1)(a).
68 A further reason for thinking that such property should be capable of being removed, without resort to s 25, is that, when the Court is asked to make an assets forfeiture order, it does so on the basis of the suspicion attaching to the person who committed a serious crime related activity, rather than the nature of property, being serious crime derived property. Accordingly, there is some scope for unintended injustice, if the property of uninvolved parties cannot readily be removed from the scope of a restraining order.
69 In Woodcroft & Ors v Director of Public Prosecutions [2000] NSWCA 128, this Court considered the scope of a similar power to that contained in s 12(1)(a), as found in s 48(1)(a) of the Proceeds of Crime Act 1987 (Cth). In that case the primary judge had made an order, by consent, varying an existing restraining order made against all of the property of one Geraghty, so as to include specific reference to land at Clovelly of which the registered proprietors were the claimants. The Court held that such a variation would not be "ancillary to the order against all of Geraghty's property", but rather would be "an order against someone else's property, the claimants' property, on the basis of effective control" by Mr Geraghty: at [73]. The addition of a new property should not have been made, the Court held, unless the preconditions to a restraining order had been satisfied in relation to that additional property: at [77]. Accordingly the Court (Giles JA, with whom Meagher and Beazley JJA agreed) held that the restraining order with respect to the property was made without power: at [79].
70 The approach adopted in Woodcroft is not inconsistent with that proposed by the Commission, or that adopted above. Just as the exclusion of an interest requires compliance with specific requirements of the Act relating to exclusion orders (where applicable), so the addition of a property must be done strictly in accordance with the requirements specified in relation to obtaining a restraining order.