The HRLC advice further observed that ICCPR rights contain positive obligations, not only negative obligations (as discussed above) and are nonetheless considered justiciable. Regarding the question of whether ICESCR requires courts to make inappropriate resourcing decisions, the HRLC advice refers to the example of the Dietrich case, in which the High Court indirectly required the provision of legal aid lawyers for serious criminal trials (discussed in chapter 7 section 7.9). The advice observed that ‘decisions by the courts clearly have implications for the allocation of public money even if the courts do not rule directly on how resources should be allocated’.66 In response to similar questions about how courts can assess ICESCR fulfilment without straying into policymaking territory, the OHCHR has stated that the primary role of the court with respect to ICESCR is reviewing government policy, which is not the same as making policy.67 The HRLC advice concluded that ICESCR rights could be included in a federal Human Rights Act if they are framed correctly. In the Australian context, this may involve providing more specific content to the general language of aspects of ICESCR rights.68 The Commission’s approach, outlined below, therefore aims to frame ICESCR rights in a manner that is constitutionally sound. Regardless of the final approach taken, it would be constructive to seek updated advice from the Solicitor-General on this question, noting the differing views among legal minds, and the differing potential pathways for implementing ICESCR rights domestically. (c) Proposed approach to framing ICESCR rights in the Human Rights Act The Commission has designed its proposals for ICESCR implementation with the aim of ensuring compliance with Australia’s Constitution. The Commission therefore proposes articulations of ICESCR rights that are somewhat narrower than 128 the full expression of those rights contained in ICESCR. Specifically, the Commission has chosen not to require progressive realisation principles to be considered by the courts. The Commission notes that it does not consider progressive realisation principles to be inherently non-justiciable. However, it acknowledges the importance of providing certainty that the implementation of ICESCR is constitutional, suitably adapted for the Australian context, and directly enforceable by the courts. It also recognises the importance of providing sufficient clarity about the contents of rights – both for the benefit of judges and public authorities interpreting and applying the rights; and for the benefit of individuals that seek to rely upon them through complaints and judicial review processes.69 The Commission has focused on including the essential, core and/or immediately realisable aspects of ICESCR rights. This renders the rights more specific, but also somewhat narrower. All ICESCR rights are implemented through the Commission’s proposals, to varying degrees. Per the Commission’s approach, the range of rights set out in ICESCR would still form part of the educational and advocacy functions of the Commission. It would also inform the upstream consideration of decisions about the framing of laws, through requiring a statement of compatibility to address the compliance with ICESCR as a whole. Importantly, the Commission’s articulation of ICESCR rights is designed to accord with the Commission’s proposal for including a direct cause of action for unlawfulness under the Human Rights Act. This reflects its intention to ensure that the courts can review rights compliance, and that a right to remedy is available for individuals where breaches have occurred.