Consideration
55 First, as a matter of language, s 184(a) confers a generally expressed power to "amend a list" of threatened ecological communities by "including items in the list in accordance with Subdivision AA". The word to which the dispute is really directed is "items". An item is "a separate article or particular": Macquarie Dictionary Online. Its collocation with the word "list" might say something about the intended constitution of "items" within the meaning of s 184: for further discussion of the need to read and understand words together, and the role of dictionaries in statutory interpretation more generally, see Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 (at 78 per Isaacs J) and Provincial Insurance v Consolidated Wood Products (at 560 per Mahoney J). In its ordinary English meaning, "including an item in a list" is something that can validly be done, no doubt, in several ways. However, there is nothing in the ordinary or natural meaning of "items" or "list", or in their appearance together in s 184, that requires a full description of the ecological community to appear in the Amending Instrument.
56 Secondly, and following, the existence or non-existence of such a requirement is clarified by the wider statutory context of s 184. Subdivision AA (ss 194A-194T), referenced in s 184, is immediately relevant. It outlines the nomination and listing process, and tends against Jam Land's construction in two key ways.
57 The first is that it distinguishes between an "item" and a "description of an item". Section 194G(1) provides for the creation of a "proposed priority assessment list", and its cognate s 194H sets out the matters to be included for each "item" in a proposed priority assessment list, relevantly including "a description of the item": s 194H(1)(a). The demarcation between an "item" and a "description" of an item in Subdiv AA tends against a conclusion that for the purposes of s 184, "item" necessarily means a detailed "description of the item". It has long been presumed that a word or phrase has the same meaning throughout an Act: Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 (at 466-467 [21] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). There is no cause to depart from that presumption here, not least where Pt 13, Div 1, Subdiv A (which includes ss 181 and 184 and Subdiv AA) is simply titled "Listing". This suggests a single, holistic process, as does the "simplified outline" of the subdivision in s 194A.
58 The second is that where a description of an ecological community is required in the listing process, Subdiv AA expressly provides for as much. This is less an expressio unius argument, as Jam Land characterised it, and more a further observation as to the intended meaning of "item" across Pt 13 as a whole. By way of example, the Minister must invite the nomination of items for inclusion in the List: s 194E(1). Such nominations must be by way of a comprehensible public document setting out information about the ecological community, including a description of the components, features, key species, and national distribution of the community: s 194E(3)(b).
59 More broadly, the statutory requirement for an approved conservation advice at all times while an ecological community continues to be listed (s 266B(1)) is also inconsistent with Jam Land's case. It negates Jam Land's contention that a sufficiently precise description of the relevant ecological community must be apparent from the List itself (and thus apparent from any item subsequently included in the List pursuant to s 184). The statutory regime, understood as a whole, envisages both the List and conversation advice being published, the latter being detailed, and the former being instructive in a general sense.
60 The contextual operation of those provisions is sufficient to reject the implied condition for which Jam Land contends. But I also accept the Minister's alternate argument that even if s 184(a) required by implication a description of the ecological community with "sufficient certainty" or "precision", that standard would apply to the Amending Instrument in its statutory context, that is, taken together with the Conservation Advice and other relevant extrinsic materials: s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).
61 Before concluding, it is worthwhile addressing directly Jam Land's reliance on VAW (Kurri Kurri) in respect of the level of specificity required in the Amending Instrument. The "requirement of reasonable certainty" to which Spigelman CJ referred in that case was not and is not a requirement at large, applicable in any statutory setting; it was a requirement that emerged from a consideration of the relevant provisions of the relevant act in that case. The provision in question was s 23(1) of the Threatened Species Conservation Act 1995 (NSW), which provided that the committee in question "must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from [the relevant listing instrument], and must give reasons for the determination". Section 23(1) involves a statutory task different from that in s 184 of the EPBC Act.
62 Further, and in support of the Minister's position, VAW (Kurri Kurri) recognised that a degree of "vagueness and imprecision" in the definition of such a community is inevitable. The Approved Conservation Advice itself makes this point: see, for example, at p 4 [1.2]. Although there might be more apposite metaphors, as I said at the hearing, a grassland community is a moveable feast. Such imprecision must be tolerated if the object of the EPBC Act, namely, per s 3(1)(a), protecting vulnerable and changing ecological communities, is to be achieved: VAW (Kurri Kurri) (at 671-672 [231]-[234] per Hodgson JA, Spigelman CJ agreeing at 634 [4]).