Orders:

1. The appeal be allowed.

2. The cross-appeal be dismissed.

3. The declaration made on 13 October 2020 be set aside.

4. The parties are to provide a proposed form of order which substitutes the declaration made on 13 October 2020 to give effect to these reasons within 14 days.

[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]