They had become naturalised as Australian citizens at times when that required renunciation of all other allegiances and appear to have assumed this precluded dual citizenship.

[1]: Case Stated paras 25–34 The Court decided by a 6:1 majority that Cleary held an "office of profit under the Crown" within the meaning of s 44(iv) and so had been "incapable of being chosen".

Mason CJ, Toohey and McHugh JJ held in a joint judgment (with which Brennan, Dawson and Gaudron JJ generally agreed) that the centuries-old phrase "office of profit under the Crown" includes today not only public servants as ordinarily understood, but extends to "at least those persons who are permanently employed by government".[1]: para.

In Deane's view, it is sufficient if the candidate is qualified at the moment when the result of the poll is declared, by which point Cleary had resigned from his position.

Deane was concerned that to require candidates always to be qualified at the point of nomination deters the more than ten per cent (at that time) of the workforce who are employed in the public service of the Commonwealth or a State.

He thought that taking leave without pay or other emoluments, intending to resign if electoral success became apparent, is "preferable [...] to the rather devious procedure of an ostensible termination of employment" under a guarantee of reinstatement if not elected, as has been established by Commonwealth and State legislation.[1]: para.

19 It was argued on behalf of Kardamitsis that, if Cleary was disqualified, there should be a "special count" in which his preferences would be distributed and another candidate declared elected.

But the Court thought that omitting Cleary from the field of candidates could distort the voters' "real intentions".[1]: para.

The wording of s 44(i) rendered applicable, but not conclusive, the test in international law of "real and effective nationality", which could particularly have benefited Kardamitsis; the judgment listed his extensive participation in Australian public life, involving repeated oaths of Australian allegiance as a local councillor and a justice of the peace.

She was unwilling to suppose that "the Parliament intended that the formal renunciation of all other allegiance, notwithstanding that it was solemnly sworn or affirmed, should be entirely devoid of legal effect".[1]: para.

12  As to what that effect would be, in her view "the solution is not to be found in reading down s.44(i): rather, it lies in examination of the circumstances in which foreign law should be applied to determine questions arising under the subsection".[1]: para.

Gaudron J observed that, when Delacretaz had taken the oath, it did not yet contain renunciation, but he had renounced all other nationality at an earlier stage of the naturalisation process.

In the view of Deane and Gaudron JJ, Kardamitsis and Delacretaz had effectively renounced their foreign citizenships, long before the election, and so were not "incapable of being chosen".